V >\ fc. v 
 
 OFFICIAL REPORT 
 
 OF THE 
 
 DEBATES AND PROCEEDINGS 
 
 C|e State C0ttimtti0tt, 
 
 ASSEMBLED 
 
 MAY 4TH, 1853, 
 
 TO 
 
 REVISE AND AMEND THE CONSTITUTION 
 
 OF THE 
 
 of 
 
 VOLUMK THIRD. 
 
 BOSTON: 
 
 WHITE & POTTER, PRINTERS TO THE CONVENTION. 
 
 1853. 
 
OFFICIAL REPORT 
 
 OF THE 
 
 DEBATES AND PROCEEDINGS 
 
 OF THE 
 
 CONVENTION OF 1853. 
 
 Friday,] 
 
 BUTLER CUSHMAN. 
 
 [July 15th. 
 
 FRIDAY, July loth, 1853. 
 
 The Convention assembled pursuant to adjourn 
 ment, and was called to order by the President at 
 nine o clock. 
 
 Prayer by the Chaplain. 
 
 The Journal of yesterday s proceedings was 
 read. 
 
 Orders of the Day. 
 
 On motion of Mr. BUTLER, of Lowell, the 
 Convention proceeded to the consideration of the 
 Orders of the Day. 
 
 Limitation of Speeches. 
 
 The PRESIDENT stated the first business in 
 order to be the consideration of an order present 
 ed yesterday by the gentleman from Bernardston, 
 (Mr. Cushman,) to limit the time allowed to each 
 member to speak upon any question, to half an 
 hour. 
 
 Mr. BUTLER observed, that he did not mean 
 to oppose the adoption of the rule ; but, he would 
 remark, that we had for sometime had a rule of 
 the Convention, limiting the speeches of members 
 to an hour each, yet that rule had never been en 
 forced in one single instance. Whenever a gen 
 tleman had consumed his hour without concluding 
 his remarks, members would cry, "go on," "go 
 on," and he would go on so long as he pleased. 
 Under such circumstances, of course, it would be 
 a personal matter for any gentleman to get up and 
 object. He was in favor of limiting the debate, 
 but he saw no benefit in adopting a rule you 
 
 could not enforce, and gentlemen had better carry 
 out their hour rule before they undertook to make 
 any new ones upon the subject. Unless there 
 could be an amendment to the order now before the 
 Convention, which should limit gentlemen to half 
 an hour, and then make general consent for them 
 to go on, go for nothing, he thought the rule would 
 be of little avail. He saw, very much, the need 
 of curtailing the debate. He could say all he had 
 to say, and more too, in the course of half an 
 hour. And if any gentleman thought any good 
 could be effected by the adoption of the order, it 
 should have his vote. 
 
 Mr. CUSHMAN, of Bernardston, thought there 
 was a great necessity for something of this kind 
 to be adopted. The Convention were now in the 
 eleventh week of their session. They had already 
 consumed much more time than was expected 
 when they commenced, and some measure should 
 be adopted to bring their labors to a close. He 
 appealed to gentlemen to say if, at this period of 
 the session, half an hour was not long enough for 
 any member to speak ? The Convention would 
 not listen patiently to them for a longer time. If 
 they desired their speeches to produce an effect 
 upon the Convention itself, they would certainly 
 fail to accomplish the object by continuing them 
 beyond that limit ; and if they desired that their 
 speeches should go upon the record for the perusal 
 of posterity, they would be much more likely to 
 be read by making them short. 
 
 In regard to the suggestion of the gentleman 
 from Lowell, (Mr. Butler,) he thought it would 
 
 248962 
 
LOAN OF STATE CREDIT, &c. 
 
 [58th day. 
 
 Friday,] EARLE KNOWLTON STEVENS WALKER ALLEN THOMPSON. [July 15th. 
 
 be rather inconsistent for him to accept it as an 
 amendment ; but he would say, for himself, that 
 if the order was adopted, and hereafter at the close 
 of any half hour speech, there should be a cry of 
 "go on," "go on," he would pledge himself to 
 rise in his place, and object. If the order was 
 adopted, he hoped it would be adhered to rigidly, 
 and he could see no reason why it should not be. 
 
 A MEMBER suggested that all the subjects of 
 importance had been before the Convention, and 
 had been discussed to a considerable extent, 
 and there was, therefore, no more need of long 
 speeches. 
 
 Mr. EARLE, of Worcester, said, that so far as 
 he was personally concerned, he did not care 
 whether the order was adopted or not, but if it 
 was adopted, he hoped that members would not 
 be allowed to go on by general consent, beyond 
 the time allotted to them under the rule. If one 
 member was allowed, by general consent, to go 
 on beyond his time, no gentleman would think of 
 enforcing the rule against another member who 
 desired also to speak more than his time. He 
 hoped the rule would be rigidly enforced if it 
 was adopted. And he gave notice that if, should 
 it become one of the rules of the Convention, and 
 any member in future was allowed to go on beyond 
 his time, he would move to abrogate the rule 
 itself. 
 
 Mr. KXOWLTON, of Worcester, said, he 
 was as anxious as any member in the Convention 
 to bring this session to a close. He had given a 
 practical demonstration of his anxiety in that res 
 pect, by sitting quietly in his seat ever since the 
 session first commenced. But there were impor 
 tant questions upon the table of the Convention, 
 which had not been touched. There was one, 
 especially, which he had been waiting a fortnight 
 for an opportunity to call up, but had not yet 
 found a chance a subject which is regarded by a 
 portion of the community, and an influential por 
 tion too, as one of the most important that can be 
 brought before the Convention. While, there 
 fore, he did not wish that any man should occupy 
 the time of the Convention for a moment more 
 than necessity required, he desired that the sub 
 ject to which lie had referred should receive more 
 consideration than it could receive in a half hour 
 discussion. For that reason, he hoped the order 
 would not be adopted. 
 
 Mr. STEVENS, of Rehoboth, remarked that 
 he had noticed, since the hour rule was adopted, 
 that when members had spoken to the extent 
 of their limit, there was a general cry of "go 
 on," and they had taken it for granted that such 
 was the desire of the Convention, and without any 
 formal action upon the part of the Convention 
 
 granting them leave, have gone on. That was all 
 right. He supposed that when any one came to 
 the end of his hour, and no one cried " go on," 
 he would take it for granted that the Convention 
 did not want to hear him, and sit down. 
 
 Again, he had noticed that when any attempt 
 had been made here to curtail debate in any 
 shape whatever, for the purpose of progressing 
 more rapidly with the business, nothing had been 
 accomplished by it, and he believed no good 
 would be accomplished by the adoption of this 
 limit. There was yet important business to come 
 before the Convention. The gentleman from 
 Worcester, (Mr. Knowlton,) had referred to an 
 important matter which he had been for some 
 time waiting for an opportunity to call up. 
 
 So far as the one hour system was concerned, 
 if any gentleman could not say all he wanted to 
 say in that time, and it should be the general 
 wish for him to continue, he saw no objection. 
 He should vote against the adoption of the order. 
 
 Mr. WALKER, of North Brooktield, trusted 
 that the motion would prevail, as the Convention 
 ought to adjourn next week, and the adoption of 
 this rule would facilitate such a result. The hour 
 rule had worked well, and although in a few 
 instances speakers had been allowed to go on 
 beyond their hour, yet we had gained a good 
 deal of time in the long run by its adoption. He 
 hoped, therefore, that the present proposition 
 would be adopted. 
 
 Mr. ALLEN moved the following amendment, 
 to come in at the end of the resolution : " Pro 
 vided the chairman of each Committee of the 
 Convention shall be allowed one hour upon the 
 subject of his Report." 
 
 The question was taken on the amendment, and 
 it was agreed to. 
 
 The question was then taken on the order as 
 amended, and it was agreed to. 
 
 Loan of State Credit. 
 
 The PRESIDENT. The first question before 
 the Convention is upon the motion of Mr. Thomp 
 son, of Charlestown, to reconsider the vote by 
 which the resolve concerning the loan of the 
 State credit, was ordered to a second reading. 
 
 Mr. THOMPSON, of Charlestown. I have 
 but few words to say in reference to the motion 
 I had the honor to submit a few days since. I 
 deem the question to be too important, involving 
 as it does the great interests of the Common 
 wealth, to be settled by so thin a House as it was 
 the day when the amendment was offered to the 
 original Report, and adopted by the Convention. 
 I am opposed to that amendment, and desire to 
 submit some reasons why I am thus opposed. 
 
58th day.] 
 
 LOAN OF STATE CREDIT. 
 
 Friday,] 
 
 THOMPSON GRISWOLD. 
 
 [July loth. 
 
 Sir, I am opposed to thus restricting the legisla 
 ture in their action upon a matter of so much 
 interest to the Commonwealth. What has been 
 the experience of the State in relation to the 
 action heretofore taken by the legislature upon 
 this subject of loaning the credit of the State r 
 Has it not been promotive of her best interests ? 
 I believe no one will deny that it has, at least no 
 member has as yet denied it. Has it not done 
 more to develop the mineral and other resources 
 of the Commonwealth, to build up villages and 
 increase the taxable property of the State on the 
 lines of the several roads to which the loans have 
 been made, than any other cause ? And I would 
 ask, has the Commonwealth suffered any loss, or 
 is it within the range of probability that she can 
 suffer any loss, from the course pursued on this 
 matter ? I believe no one will for a moment pre 
 tend that she has, or that she can. Two corpo 
 rations to whom smaller loans have been made by 
 the State, have been prepared to reimburse to the 
 State, and if I am correctly informed, have offered 
 to redeem the whole, or a large portion of that 
 loaned to them, but the Commonwealth declined 
 taking it. How stands the matter with reference 
 to the oiher great corporation, about which so 
 much has been said here, and to which the loan 
 of four millions of dollars was made. The Com 
 monwealth holds stock of that corporation to 
 the whole amount of the loan, besides having a 
 preference over the whole stock held by individu 
 als in that corporation, which is now worth 
 about par, and has been within a short time above 
 par, and could have been sold in the market at a 
 profit of over $50,000. It may be asked, why 
 was not that done ? I believe a good and suffi 
 cient answer to that is, it was for the interest of 
 the Commonwealth to allow it to remain, for the 
 reason that the State was receiving from that 
 stock seven or eight per cent, interest, and she 
 could not have obtained over five per cent, upon 
 the money derived from the sale thereof ; hence, 
 as a business transaction, I say it was a wise and 
 judicious course for the executive to refuse to 
 sell the stock, or take any portion of the money. 
 
 We are told these loans were an experiment. 
 Admit they were; but does the success of an 
 experiment furnish any argument why it should 
 not be repeated ? I think not. 
 
 The amendment which was adopted, I conceive 
 to be one that amounts to an entire prohibition of 
 loaning the credit of the State, under all or any 
 circumstances. What is it, and what does it re 
 quire ? A vote of two-thirds of both branches of 
 the legislature a greater vote than is required to 
 amend the Constitution. I think, Sir, it would 
 be more to the credit of the Convention, to come 
 
 up openly and boldly, and assert, in the organic 
 law, that the credit of the State shall never be 
 loaned, than to attempt to prohibit it by such an 
 indirect measure as this amendment would prac 
 tically carry out. Sir, I am in favor, in all cases, 
 of doing things openly and boldly, and not by 
 any covert means, or the introduction of amend 
 ments which may have some plausibility in them, 
 but which, when they come to be applied practi 
 cally, amount to a prohibition, as much as if ex 
 plicit words to that effect had been used in the 
 Constitution. I wish that the legislature may 
 stand, in reference to this matter, as they have 
 stood heretofore; and, as I before remarked in 
 relation to the experience of the Commonwealth, 
 it does strike me that it is the dictate of wisdom 
 to profit by the experience of the past. Gener 
 ally, in business matters, the lessons of experience 
 are the most advantageous and profitable ; and I 
 think we need not fear any loss by following the 
 experience of the past in this matter, and allow 
 every case that comes up to be judged of or acted 
 upon in reference to its merits. There may be, 
 and I have no doubt there will be, cases come up 
 when the interests of the Commonwealth may be 
 promoted to as great an extent as they have been 
 in times past ; but if we allow this amendment to 
 remain as the action of this Convention, however 
 great may be the necessity, and however much the 
 interests of the Commonwealth might be pro 
 moted by carrying out or adopting the same 
 policy which has been heretofore pursued, the 
 gates are entirely closed against the adoption of 
 any such policy. I hope, therefore, that the re 
 strictive amendment will be rejected, upon farther 
 consideration, and that we shall trust the servants 
 of the people to legislate upon this subject as they 
 have in times past, believing, as I do most fully, 
 that the interests of the Commonwealth will be 
 guarded and protected, and that we may expect a 
 promotion of our true interests, instead of any 
 loss which may accrue from such a course. 
 
 Mr. GUIS WOLD, for Erving. I have been 
 desirous, at some stage of the proceedings, to make 
 a few remarks in relation to this matter, and I 
 will now occupy but a few minutes of the time 
 of the Convention. It seems to me that some 
 false issues have been raised in the course of this 
 discussion. In the first place, the proposition 
 which has been adopted by the Convention, and 
 which it is now proposed to reconsider, will have 
 the effect of putting it out of the power of the 
 legislature hereafter to make a loan in any case ; 
 because, if you make a restriction that it shall 
 require a vote of two-thirds of each branch of the 
 legislature, any gentleman can see that it is equiv 
 alent to shutting down the gate altogether. I 
 
LOAN OF STATE CREDIT. 
 
 [58th day. 
 
 Friday,] 
 
 GRISWOLD. 
 
 [July 15th. 
 
 have taken the trouble to go back and examine 
 the yeas and nays upon the loans which have 
 been made heretofore, and I find that where they 
 were taken in the House, in no one instance I 
 have only examined those in relation to the West 
 ern Railroad did one of these loans pass by a 
 vote of two- thirds of the members present. If 
 you require a vote of two-thirds of all elected, it 
 is nearly absolutely certain that no loan hereafter 
 can be passed by the legislature, so that the ques 
 tion before this Convention is, whether you will 
 do as you have done in times past, and leave it to 
 the legislature to settle these matters upon their 
 merits, or whether you will put an absolute pro 
 hibition into the Constitution. That is the prac 
 tical effect of the proposition which we now pro 
 pose to reconsider. I am not a little surprised at 
 the course which this question has taken. Who 
 supposed, when this Convention was called, that 
 the proposition would be seriously entertained 
 here of incorporating a provision in your Consti 
 tution which should forever after tie up the hands 
 of the legislature, and put it out of their power to 
 enter upon and maintain such a policy, however 
 great the emergency might be for a different 
 course of policy. This is a new proposition. It 
 was not entertained by gentlemen who first advo 
 cated the proposition for calling this Convention. 
 I think that our true policy requires that we 
 should make such changes, and such only, in the 
 Constitution as are clearly warranted and de 
 manded by the public sentiment of the Common 
 wealth. I think it would be a short-sighted and 
 dangerous policy for this Convention to enter 
 upon experiments and incorporate into the Consti 
 tution a provision in regard to which no great 
 feeling was entertained a provision which, per 
 haps, in its results, might endanger the whole 
 Constitution. I say then, as a matter of expedi 
 ency, let us confine ourselves in our action here 
 to those changes which the public clearly de 
 mands, and upon which there cannot be that 
 diversity of sentiment which must exist in regard 
 to the question now before us. In the first place, 
 is there any necessity, any exigency for incorpo 
 rating such a provision into the Constitution ? I 
 do not now raise the question as to the expediency 
 or propriety of granting loans by the State at all ; 
 but is there anything in the past experience of 
 Massachusetts which requires that any such pro 
 vision should be incorporated into the Constitu 
 tion ? None whatever. Massachusetts has loaned 
 her credit to seven different railroad corporations. 
 Almost every portion of the Commonwealth has 
 received the benefit of the resources of the Com 
 monwealth in this respect, and every one of these 
 loans has been perfectly safe to the Common 
 
 wealth. I have taken the trouble, in order to put 
 this question at rest, to examine this matter my 
 self, and I have a letter also before me from the 
 auditor of the Commonwealth, who of course is 
 perfectly familiar with this whole subject, in 
 which he says that there is no probability that 
 the State will ever lose the first dollar by it. 
 Every one of these lines is perfectly secure ; the 
 interest has been promptly paid whenever it was 
 due, and the principal itself is sufficiently secured 
 in future, and two of the roads have paid up the 
 loans. If this be so, what is the reason for incor 
 porating into the Constitution a provision such 
 as this, when the legislature has hitherto been a 
 wise and safe depository of this power. Why, 
 gentlemen say, because other States have run fool 
 ishly into debt. This reminds me of a person in 
 health sending for a physician. The physician 
 calls, and he tells his patient that he is not sick, 
 and that he has no need of a physician ; but the 
 individual says, My neighbor is sick, and I shall 
 certainly be sick, and I must take some medicine ; 
 and thus, against the protestations of the physi 
 cian, he concludes to take medicine and thus de 
 stroys his health, when, if he had let it alone, he 
 would have been quite well. The fact that other 
 States, upon this subject of granting loans, have 
 run into experiments, is no argument for Massa 
 chusetts. 
 
 Allow me to say a single word in relation to 
 the matter of our farms being mortgaged. I do 
 not know that I should have said anything upon 
 this point, had it not been that an appeal was 
 made to the Democratic portion of this Conven 
 tion. I know very well that at one time there 
 was a great cry in this Commonwealth that our 
 farms were all mortgaged in consequence of loans 
 to the Western Railroad. I am free to confess 
 that I joined in that cry myself; and it was one 
 of those things which the party with which I was 
 associated used for political capital for several 
 years. I was honest in the sentiments I then en 
 tertained, that our farms were mortgaged, and 
 that these loans were not safe ; but a most care 
 ful examination of the whole matter, together 
 with the experience of eight or ten years, has 
 convinced me and I am equally honest in say 
 ing now what I know to be true that there is 
 no incumbrance whatever upon our farms in this 
 respect, but on the other hand, there can be no 
 doubt that the real and personal property of Mas 
 sachusetts has been advanced in value by these 
 loans, many millions. 
 
 Why, Sir, I speak from the book in relation to 
 this matter, for I have been now nearly four years 
 in the direction of the Western Railroad, as one 
 of the State Directors. Will gentlemen just look 
 
58th day.] 
 
 LOAN OF STATE CREDIT. 
 
 Friday,; 
 
 GRISWOLD. 
 
 [July 15th. 
 
 for one moment at the position of the Common 
 wealth of Massachusetts in relation to the Western 
 Railroad. That road, in round numbers, cost 
 $10,000,000 ; $5,000,000 of which is represented 
 by capital stock, $4,000,000 of which is owned by 
 private stockholders, and $1,000,000 by the State. 
 The other $5,000,000 is represented by scrip ; 
 $4,000,000 of which is State scrip, or sterling 
 bonds, and $1,000,000 of which is scrip of the 
 city of Albany. Two sinking funds are provided, 
 one for each amount of scrip. These funds are 
 instituted by the premium on the sale of the scrip, 
 one per cent, which the Western Railroad is 
 obliged by law to pay, annually, into each fund, 
 and the annual increase of the funds by interest. 
 
 Since the opening of the road from end to end, 
 that is, since about 1844, the Western Railroad 
 has paid the interest on this five millions of scrip, 
 has paid one per cent, annually into each of the 
 sinking funds ; has built a second track from 
 Worcester to Springfield ; has greatly improved 
 its baggage and passenger cars ; has built new, 
 large and commodious depot buildings and freight 
 houses along its whole line ; has paid an annual 
 loss of from five to $8,000 on the guaranty on 
 the Pittsfield and North Adams Railroad ; has 
 paid its president a salary of $5,000 annually, and 
 other officers and agents in proportion, has suf 
 fered a defalcation which shocked the whole finan 
 cial community, resulting in a loss of from $50,- 
 000 to $75,000 ; has a contingent fund of over 
 $100,000, and during this period has paid upon 
 the five millions of stock a semi-annual dividend 
 of four per cent. 
 
 Now, what is the state of this matter ? The 
 sinking fund of the Western Railroad loan is now 
 nearly $800,000 ; the sinking fund of the Albany 
 loan is more than $350,000. The sterling bonds, 
 the scrip issued by the State, is payable in thirty 
 years from the time it was issued, and of course 
 about 1870, and the Albany scrip is payable, I 
 believe, about the same time. If you will go 
 down to the auditor s room and see him, (he 
 having made the calculations,) he will tell you 
 that if the Western Railroad continues as it has 
 for the last few years, it is absolutely certain that 
 in 1870 it will be nearly or quite able to meet the 
 $4,000,000 scrip, the sterling bonds, and the 
 $1,000,000 Albany scrip. Then what have you ? 
 You will have 
 
 Mr. HOPKINSON, of Boston. I wish to ask 
 the gentleman for Erving, a question. I wish to 
 know if the Western Railroad Company has paid 
 four per cent, annually from the time the stock 
 was paid in. 
 
 Mr. GRISWOLD. I said from about the time 
 the road was completed, which was in 1844 or 1845. 
 
 Mr. HOPKINSON. I think it is not more 
 than about three and a half per cent, since the 
 stock was paid. 
 
 Mr. GRISWOLD. I presume that may be so. 
 
 Mr. HOPKINSON. Does the gentleman say 
 that the double track was built out of the income 
 of the road ? 
 
 Mr. GRISWOLD. I suppose it was not. I 
 am only stating general facts in relation to the 
 road. What I say is this, and you will not rely 
 on my authority, if you will look through the 
 Auditor s Reports of the last few years, you will 
 see the same facts stated there, that you will 
 find that in 1870, these five millions of scrip will 
 be nearly or quite paid off. Then how will the 
 Western Railroad stand ? Why, the entire income 
 of that road will be applied upon the five mil 
 lions of stock, one million of which the State owns. 
 
 Now the interest which the Western Railroad 
 pays annually on the $5,000,000 of scrip, and the 
 one per cent, which it pay sinto the sinking funds, 
 will then be divided upon the five millions of 
 stock, in addition to the eight per cent. Avhich we 
 now divide annually, making fifteen cents on the 
 dollar, which they will divide after about 1870, 
 upon the five millions of stock. So that, instead 
 of the State s ever losing a dollar from the 
 Western Railroad, if we can believe in the future, 
 she will double the value of her million dollars 
 of stock which she now owns. Every dollar will 
 be worth double its par value. The auditor has 
 reached the same conclusions in his reports for 
 the last few years. 
 
 Now what incumbrance is that upon the farms 
 in Massachusetts ? It is the same incumbrance 
 which the issue of scrip in the city of Boston, 
 for obtaining Cochituate water is, or, rather it is 
 not half as bad, for I understand that the in 
 come from the water does not pay the interest on 
 the scrip issued for obtaining this water. But 
 the introduction of this water, at the expense of 
 more than five million dollars of scrip of the city 
 of Boston, has advanced the value of the real 
 estate in this city, and why ? Because the bene 
 fits, present and prospective, arising from the 
 Cochituate water, are greater than the interest on 
 the five millions or more of scrip which they 
 have issued to bring that water into the city of 
 Boston. It is just so in the matter of the State 
 scrip, only it is a much better case. I am willing 
 to stand upon the facts in the case, and I dislike 
 to have gentlemen take us back to the old issue 
 upon the subject of having our farms mortgaged. 
 I know very well that the party with which I 
 was connected, thought, at that time, the loans 
 would be unsafe, and I dare say, if I had been a 
 member of the legislature at that time, I should 
 
LOAN OF STATE CREDIT. 
 
 [58th day. 
 
 Friday/ 
 
 GRISWOLD. 
 
 [July 15th. 
 
 have voted against them myself. But all experi 
 ence has shown us that the loans are safe, and 
 that the State, so far from losing anything, will 
 make a half a million or a million of dollars, if 
 she holds her stock till 1870. 
 
 But the great point in this question, is this. 
 Will you leave this matter to the legislature, or 
 will you submit it to the people, or require a 
 two -thirds vote ? The question of submitting it 
 to the people, I think, is now out of the case ; 
 that has been decided shall not be done. It seems 
 to me that as this policy has worked well hereto 
 fore, as the State has incurred no risk, as the 
 State is in no possible danger from any loan 
 hitherto made, it is the part of wisdom and good 
 policy to leave it where we find it. It will be 
 soon enough to put in a constitutional provision 
 upon the subject, whenever the State is in danger 
 in this respect. 
 
 I will say that, as something has been said in 
 relation to the Iloosac Tunnel, that is not the 
 issue before this Convention. It is not properly 
 raised in this connection. The question is, whether 
 we will trust the legislature, who are the proper 
 judges, and before whom the facts in one case 
 and another can be presented, so that they will 
 be able to understand them. The question is, 
 not as to this measure or that measure ; and I 
 am not to be drawn into a controversy on such 
 an issue, for I am unwilling to tie up my hands 
 in that manner. Other counties, the county of 
 Bristol, the county of Plymouth, the county of 
 Barnstable, the county of Essex, and even the 
 county of Suffolk, may need this aid. The time 
 may come when it will be an object of immense 
 importance that a loan should be nade by the 
 State, for an object in one or the other of these 
 counties, which every-body will agree is impor 
 tant and safe. Now will you put a provision 
 into this Constitution which will tie forever the 
 hands of the legislature, when you might as well 
 leave it as it has been left in the past, to the dis 
 cretion of the legislature, which has acted wisely 
 and safely heretofore ? 
 
 I wish to say a single word farther. I dislike 
 to allude to matters that concern party, and I 
 rarely or never do it in debate. But an appeal 
 has been made, evidently with a design to influ 
 ence some gentlemen with whom I am politically 
 connected, or the party with which I am asso 
 ciated. Now, allow me to say, it has always been 
 a Democratic doctrine in this country, so far as I 
 understand it, to favor internal improvements ; 
 and every Democratic president, from Jefferson 
 down to president Pierce, has done it. Jefferson, 
 Madison, Monroe, Jackson, and Polk, each in 
 urn, suggested to the people of this country, the 
 
 propriety of changing their Constitution, so that 
 a system of internal improvements could be car 
 ried on by the general government, so powerfully 
 were these great men impressed with the necessity 
 of internal improvements, and with the belief that 
 the Constitution did not permit them to be made 
 by the general government, except to a limited 
 extent. And several of them strongly recom 
 mended that, so long as it could not be done by 
 the general government with the United States 
 Constitution unamended, it should be done by 
 the States themselves, which would better un 
 derstand the wants of each locality. I do not 
 wish to ad vise to enter upon any rash experiments. 
 I would not grant a loan in every case, but I 
 would leave that power with the legislature ; so 
 that whenever there is a necessity, and wherever 
 there is a great public exigency, and the loan can 
 be safely made, I would make it, at least. I 
 would leave it to the legislature, which is the 
 proper body to settle that question. Shall we 
 sit here to forge chains and shackles and sepul 
 chres, I may say, for the industry of Massachu 
 setts ? For one, I will not do it. 
 
 I have not time, but I should like if I had a 
 few moments, and if I had the ability, to set forth 
 the advantages which have accrued to Massachu 
 setts, to Boston, and to every part of the State, from 
 the great railroad enterprises which were aided, to 
 a very great extent, by the credit of the Common 
 wealth, many of which would, probably, not 
 have been built without that aid. And this aid 
 has been granted, too, without the Commonwealth 
 being in danger of losing the first mill, and by 
 simply endorsing this paper. I would like, if I 
 had time, to set forth in my poor way, some 
 advantages which have accrued to the people of 
 this Commonwealth from these loans, or from the 
 railroads to which they were loaned. Sir, stand 
 ing here, we seem to underrate the great advan 
 tages to the farmers, the mechanics, to the manu 
 facturers, to the mercantile interests, and to all 
 the industrial pursuits in Massachusetts, accruing 
 directly and immediately from the construction of 
 these railroads. Look over the valuation of 1850 ; 
 look at Pittsfield, and Springfield, and^Vorcester, 
 and Boston, and Lowell, and Fitchburg, and all 
 the main points where these great railroads pass, 
 and look at the millions and millions of increase 
 of property. It is a direct and immediate result, 
 to a very great extent, of the construction of these 
 roads. Sir, when the policy of Massachusetts has 
 resulted in such beneficence and advantage to 
 the State, I am surprised that there is any man 
 of any party who will come up here and seriously 
 propose to shut down the gate entirely, and put 
 it out of the power of the legislature, even in the 
 
58th day.] 
 
 LOAN OF STATE CREDIT. 
 
 Friday,] 
 
 WILKINS. 
 
 [July 15th. 
 
 greatest exigency and the safest loan, to grant the 
 credit of the State. 
 
 Sir, for one, I take my stand on the side of 
 internal improvements ; not that I would embark 
 the credit of the State to an unreasonable or un 
 safe extent ; but, for one, living in this age, I 
 take my stand in favor of internal improvements, 
 and I undertake to say that no man can stand up 
 and defend himself in Massachusetts, in New 
 England, in New York, or in this country, who 
 is opposed to internal improvements. 
 
 I hope, Mr. President, that this matter will be 
 left, as it has been before, with the legislature. 
 There is no danger of any unsafe loan being 
 made. The great corporations which are inter 
 ested to defeat any loans, using their influence in 
 comiection with men who are themselves opposed 
 to these loans, will be power enough for any com 
 pany who wish for a loan, to meet ; and there 
 will be no danger whatever, that an imprudent 
 or unsafe loan will be made hereafter. 
 
 Mr. WILKINS, of Boston. Mr. President. 
 It has been no purpose of mine, to occupy a mp- 
 ment of the time of this Convention in discuss 
 ing this subject. I have listened to the discus 
 sion, thus far, without wishing to be heard, be 
 cause I thought I saw that the sense of this body 
 was correct, and needed no aid from me, in com 
 ing to a correct conclusion. But the position of 
 this matter has undergone a change the right 
 appears to me in jeopardy and I must claim the 
 indulgence of the Convention, while I briefly 
 express my views upon it. 
 
 It is altogether too late to attempt to disguise 
 the fact, that the topic under discussion is indis- 
 solubly connected with the Hoosac Tunnel. The 
 first speech made on the subject, by the gentle 
 man from Abington, (Mr. Keyes,) has dovetailed 
 them together ; and nearly every subsequent 
 speech and vote has only demonstrated the con 
 nection. Hence, it has seemed to me, that we 
 have been engaged, while discussing this matter, 
 in legislation, and that of the worst kind : special 
 legislation. And, it would have been hardly an 
 inappropriate mode of proceeding, to have issued 
 an order of notice to the Troy and Greenfield 
 Railroad, so that they might appear with their 
 counsel and witnesses, and have a full hearing 
 upon the merits of their case, before the Com 
 mittee of the Whole. 
 
 It is true that some few have addressed this 
 body, either in Convention or in Committee, upon 
 the merits of the question, without any apparent 
 bias. My colleague, who early addressed the 
 Committee, (Mr. Hillard,) in favor of the Report 
 of the Committee, and the gentleman represent 
 ing Manchester, (Mr. Dana,) and my colleague, 
 
 (Mr. Gray,) who immediately followed him, both 
 in favor of the Report, seem to me to have fully 
 and satisfactorily met every argument that has 
 been or can be brought on the other side and 
 they have kept aloof from present exigencies, and 
 from preconceived opinions. 
 
 But how is it with some others who have taken 
 part in this debate ? Are they in a position to 
 bring to this topic unbiased opinions, and candid 
 judgment and are their arguments entitled to 
 the right in this matter, which we should all 
 deem them entitled to on indifferent subjects ? 
 
 The gentleman from Taunton, (Mr. Morton,) 
 has taken a conspicuous part, and made untiring 
 efforts to defeat the acceptance of the Report, and 
 what is his position ? Why, Sir, he has himself 
 told us, that his views on State credit were put 
 upon record many years ago ; and some of us 
 well remember them. He has himself alluded to 
 the probable fact, that in consequence of these 
 recorded opinions, he found that he was obliged 
 to quit a temporary office, for the attainment of 
 which he had given up a permanent one. If 
 that gentleman has any regrets for the change he 
 then made, I will assure him that I believe he 
 has the hearty sympathy of his political oppo 
 nents. We, then, and still think, he left an 
 office, the duties of which he was eminently well 
 qualified to discharge, and was discharging, with 
 great usefulness and acceptance, and entered upon 
 another office, about his qualifications to fill 
 which, there were at least two opinions at the 
 time, though there appears to have been an ap 
 proximation to one sentiment on the subject be 
 fore the year expired. 
 
 Now, Sir, it appears that this sentiment con 
 cerning the credit of the State, formed and enun 
 ciated in the dark prospects which then over 
 hung the Western Railroad enterprise, is still, 
 with him, a cherished sentiment. It has cost 
 him too much not to be highly prized, and he 
 now is desirous that the Convention and the peo 
 ple should adopt what the people then repudiated. 
 The gentleman undoubtedly formed, and still cher 
 ishes this opinion, in all honesty and sincerity ; 
 but I submit, whether there be not with him 
 some pride of opinion, some stickling for con 
 sistency, which may obscure his better judgment, 
 under the particular circumstances of the present 
 case ; and whether he has not attached a value 
 to this opinion, derived rather from what it has 
 cost him, than what it is worth to us. 
 
 And how is it with other gentlemen, who are 
 throwing obstacles in the way of accepting the 
 Report ? One of my colleagues, (Mr. Hopkin- 
 son,) who has twice spoken on the matter in op 
 position, (though I was not present to hear him,) 
 
LOAN OF STATE CREDIT. 
 
 [58th day. 
 
 Friday,] 
 
 WlLKJNS. 
 
 [July 15th. 
 
 daily eats the bread that flows from the bounty of 
 the State. Though not connected with the West 
 ern Ilailroad, that I know of, yet he is most inti 
 mately connected with another corporation whose 
 life s blood is derived from the Western, and the 
 Norwich and Worcester Railroads both of which 
 owe their existence to the credit of this State. 
 Now, Sir, situated as that gentleman is, sur 
 rounded by such accidents as he is, he must feel 
 no surprise if much less weight be attached by 
 others to his arguments and suggestions, than 
 he thinks them entitled to, and which, under 
 other circumstances, they would undoubtedly be 
 entitled to. 
 
 But my catalogue is not yet finished. One 
 other colleague, (Mr. Giles,) has proposed an 
 amendment which threatens the acceptance of the 
 Report ; and still another colleague has announced 
 his intention to offer another in opposition, if an 
 opportunity occurs. And, what is the position of 
 these gentlemen in relation to this matter ? I find 
 them, Sir, both to have been opponents to the 
 Hoosac Tunnel bill, in the House of Represent 
 atives in April last. Among the nays upon the 
 passage of that bill, I find both their names re 
 corded, with those of seven others only of the Bos 
 ton delegation. Now, Sir, these gentlemen are 
 committed, both of them, upon this matter. They 
 have pree xistent opinions to sustain, a consis 
 tency to maintain ; and they appear to be throw 
 ing the weight of their talents into a scale here to 
 defeat a measure which they were unable to defeat 
 in the House of Representatives. If, Sir, these 
 gentlemen had voted for that bill, and now 
 should propose to take from the legislature the 
 power to make such grant, then we should have 
 proof that these gentlemen were actuated by 
 principle and an unbiased judgment ; and that in 
 this course they were seeking the public good, 
 though it would conflict with a great enterprise, 
 to which they had showed themselves to be en 
 tirely friendly. But, we have no such exhibition 
 before us ; but on the contrary, we witness en 
 deavors 011 their part to induce measures that will 
 embarrass and defeat a great public enterprise, 
 and this under circumstances calculated to raise a 
 doubt of the unbiased character of their judg 
 ments and opinions upon those measures. 
 
 Here, Sir, I close what I have to say upon the 
 debate thus far. I will now address myself to 
 the matter in hand, and advert to some matters 
 not yet, I believe, touched upon. 
 
 In settling the basis of representation, this 
 Convention has departed from what it regarded 
 right, and has bowed to the paramount force 
 exigency. Were we beginning the formation of a 
 government, we should have formed one different 
 
 ly. We found we were too late in the day to fol 
 low out theory, but were obliged to be controlled 
 by practice. Now, Sir, it seems to me that we are 
 in precisely the same predicament in relation to 
 State credit. It is too late to set up a theory, 
 but we must be controDed by practice. The 
 current of State bounty and of State credit is 
 already in motion ; its refreshing influence has 
 already been felt, and its sustaining power has 
 imparted its blessings. Credit, both public and 
 private, is the great instrument by which the 
 miracles of civilization are being wrought in this 
 nineteenth century. We have all read the beau 
 tiful simile of Junius, which is no more beautiful 
 than true. " Individual credit," says he, " is 
 wealth ; public honor, is security ; the feather that 
 adorns the royal bird, supports his flight strip 
 him of his plumage and you fix him to the 
 earth." 
 
 Credit, Sir, both public and private, is the great 
 element, the chief ingredient, of all true progress 
 in civilization and refinement. By it, the expe 
 rience of the past and the hopes of the future are 
 made to blend and work in the present. With 
 out it, we should retrograde, and with rapid 
 strides should return to barbarism. It enters 
 deeply into our social system and civil relations. 
 It is like the air we breathe, everywhere circum 
 ambient, but ever unfelt. Deprive us of it, even 
 in a slight degree, and we pine and die. It is a 
 system of mutual obligation and mutual forbear 
 ance. It grows and flourishes upon mutual 
 wants and mutual benefits ; and it unites and knits 
 together the mass of a community, so that it acts 
 and works to one end like one man. 
 
 Now, Sir, I say it is too late to rise up and stay 
 this current of public credit in this State. It has 
 been beneficially exercised. Its blessing are felt 
 every day ; and these blessings are of two kinds, 
 one public and the other private. The credit of 
 the State has been applied to improvements in 
 the northern, the eastern, the southern, and the 
 western parts of the State ; but not in the north 
 western. The ground on which this credit was 
 loaned, was that the whole State, the public, was 
 to be benefited thereby. This was true ground ; 
 but individual benefit and private good were also 
 blended therein. For example, the Western 
 Railroad was aided because it was deemed to be 
 a benefit to the whole State. But, besides this 
 public benefit, every farmer and mechanic on the 
 line of the road, received a personal and private 
 benefit which was not partaken of in any consider 
 able degree by others of the line. 
 
 Now, to accomplish these public and private 
 benefits, the credit of the State has been loaned, 
 and, as the gentleman representing Wilbraham, 
 
58th day.] 
 
 LOAN OF STATE CREDIT. 
 
 Friday,] 
 
 WILSONS. 
 
 [July 15th. 
 
 truly remarked, every man s farm and stock has 
 been mortgaged for its redemption. To construct 
 the Western Railroad, the farms in Shelburne 
 have been just as heavily mortgaged as the farms 
 in Chester ; but, besides the public benefit derived 
 therefrom, which accrues to the inhabitants of 
 both Shelburne and Chester equally, there has 
 accrued to the inhabitants of Chester an enormous 
 private benefit which is not shared at all by the 
 inhabitants of Shelburne. This benefit lies in 
 the increased value of land, of water power, and 
 other articles, growing out of the increased facility 
 of reaching a market. 
 
 Out of this very unequal private benefit grow 
 ing out of the public loan, arises a demand, I 
 will say a claim, for reciprocal accommodation ; 
 a claim resting upon justice, though of course not 
 to be enforced by law. A claim, the justice of 
 which every upright mind sees, and every honest 
 heart acknowledges. Then, I repeat, that if in 
 the four quarters of the State, great and important 
 private advantages have been derived from the 
 loan of the State credit over and above the advan 
 tages derived equally to all the citizens of the 
 State ; and if these private advantages have been 
 attained by a lien upon the private property of 
 those living out of the range of these advantages 
 then I say these citizens who have obtained no 
 private advantages from such public loan or credit, 
 have a claim, and I think a strong and irresistible 
 one, for reciprocal accommodation and favor. 
 
 As this point has not been before alluded to, I 
 will dwell a moment upon it. 
 
 The people of this State, dwelling along the 
 lines of various railroads, and especially upon the 
 line of the Western, have derived great benefit 
 individually from the loan of the State credit, in 
 which benefit the people living in the north 
 western part of the State had no interest. But 
 the people living in the north-western part of the 
 State, were as much bound, and their prop 
 erty as much pledged to pay said loan, as were 
 those living in the benefited districts. Now, 
 it seems to me, that out of this fact which 
 exits, and has existed for years, the people 
 of the north-western part of this State have a 
 claim, a forcible and a valid claim, upon the people 
 of the other parts of the State for reciprocal favor 
 a claim which will not be lost sight of, and 
 not be the less urgent, because there is no tribunal 
 to enforce it. And while such a claim exists, and 
 is unrealized, it is, as it appears to me, a gross 
 piece of injustice to increase the difficulty, and 
 throw impediments and obstacles in the way of 
 obtaining that reciprocal benefit to which they are 
 entitled. I cannot reconcile it to my sense of 
 justice and propriety, thus to shut down the gate 
 
 at this time, and stop the flow, I will not say of 
 favor, but of equity. 
 
 But, it will be said that the proposition now 
 before us does not shut down the gate, it only 
 increases the ordinary and common difficulty of 
 accomplishing the object. This is true in the end, 
 but not, I think, in fact. I think it shuts down 
 the gate. 
 
 Sir, the gentleman for Manchester, (Mr. Dana,) 
 in his forcible argument, stated that the questions 
 which would arise in relation to the State credit, 
 would be sectional questions. This is true, and 
 need not to be put in a prospective form. It is 
 now, here on this floor, and has been and will be 
 in our legislative hall, a sectional question. We 
 hear it here in the speeches on what should be an 
 abstract question. We see it in the votes. The 
 interests promoted by and connected with the 
 Western llailroad, are here, and have been else 
 where, an adverse party to this claim in equity. 
 There is no pretence that that corporation is not 
 deeply interested in this question, and did not 
 influence many votes upon it. Now this is sec 
 tional. That road runs, with its adjunct having 
 identical interests, through the whole length of 
 the State. Its interests are identified with the 
 interests of the people dwelling upon its line, 
 between Boston and the New York line. There 
 is a tremendous local and sectional interest al 
 ready blossomed, and fast running to seed, stand 
 ing before the public, and in divers ways operating 
 upon public sentiment adversely to the exercise 
 of the proposed power by the legislature. 
 
 Now, Sir, we have agreed to a basis of repre 
 sentation which, in future, will give a House of 
 four hundred and seven members ; a majority will 
 be two hundred and four, and two-thirds two 
 hundred and eighty- one. It will require, then, 
 seventy- seven more votes in a full House to carry 
 such a measure, if the proposition before us be 
 carried, than it will to pass ordinary bills. Is 
 there here a single individual who believes that a 
 bill of the character of the Hoosac Tunnel bill 
 could ever be carried by such a vote, in the face 
 of such an enormous local and sectional opposition 
 as has already manifested itself, and is lively and 
 active at this moment? And this, too, entirely 
 irrespective of the merits of the case. For the 
 greater the merits of the case, the stronger and 
 more vigorous the opposition. If the Tunnel 
 cannot be made, then the interests on the line of 
 the other road have no special reason for opposi 
 tion ; but the more feasible such an enterprise is 
 proved to be, the more those interests are endan 
 gered, or deemed to be endangered. 
 
 I cannot, therefore, think that any person can 
 vote for the proposal before us, who is not willing 
 
10 
 
 LOAN OF STATE CREDIT. 
 
 [58th day. 
 
 Friday,^ 
 
 WILKIXS LADD. 
 
 [July 15th. 
 
 to pass judgment upon the Tunnel enterprise, and 
 shut down the gates of right and equity upon the 
 people of that section of the State. 
 
 Now, Sir, allow me to say a word in relation 
 to the effect which such an article in the Consti 
 tution will probably have upon its adoption. I 
 do not profess to know very well what the people 
 will do and what they will not do, in given circum 
 stances. They have done some things which I 
 thought they could not do, and they have some 
 times failed to do what I thought they could do. 
 But, Sir, we all know that sectional feeling is not 
 all on one side. When it is indulged in in one 
 region, a counter feeling will certainly be engen 
 dered in the other. If the proposed provision be 
 inserted in the Constitution, how will the northern 
 half of this State, from Boston to the New York 
 line, vote upon it ? Sir, it seems to me that we 
 need no prophet to tell us ; it seems to me that 
 the people in that region, must be hungering and 
 thirsting for a new Constitution, if they are wil 
 ling to adopt one containing a clause so hostile 
 to their interest, and inserted with almost the 
 avowed purpose of rendering the execution of a 
 favorite enterprise forever impossible. 
 
 Mr. President, allusion has been made here to 
 the practice of other States. It seems that a con 
 siderable number of the other States of the Union, 
 have adopted a clause in their Constitutions, 
 prohibiting their legislatures from granting the 
 credit of the State to the aid of individual or cor 
 porate enterprises. Sir, I imagine that there is 
 some misapprehension upon that subject. Most 
 of the States which have adopted this provision 
 at all events very many of them are States which 
 have been unfortunate in their undertakings, and 
 have suffered considerable loss in conseqxience, 
 and incurring large debts. But, Sir, I apprehend 
 that in most of the cases in which losses have been 
 sustained, they have been those in which the 
 State itself has undertaken to carry out the enter 
 prise, and not in instances in which their credit 
 has been loaned to companies for that purpose. 
 Michigan, Illinois, Indiana, and Pennsylvania, to 
 some extent though not to the full extent and 
 all the other States which have suffered, are those 
 States which have undertaken to do their own 
 work, and reap the profits. I do not remember 
 to be sure I am not very well posted up in these 
 matters, and there may be instances which have 
 not come to my knowledge but I do not believe 
 that a single instance can be found of any of those 
 States having loaned their credit to the amount of 
 a single pistareen to any private company ; and 
 what losses they may have incurred, have doubt 
 less been in consequence of having undertaken 
 these works themselves ; and there can be no 
 
 doubt, that they have met with great losses. The 
 State of New York has adopted both of these 
 modes. She has both loaned her credit, and car 
 ried on internal improvements on her own account. 
 She has aided companies ; and one which I have 
 now particularly in my mind, is the New York 
 and Erie Railroad. When that road was first 
 projected, the company raised a certain sum I 
 do not remember how much biit having a very 
 hard grade to overcome in passing from the Hud 
 son River to Orange County, they spent all their 
 money, and the State loaned them several millions. 
 Still, not having enough to complete it, the State 
 took the road and sold it at auction, but did not 
 realize anything worth while, and the State itself 
 sustained considerable loss. But now that road 
 is completed ; and \vhen four or five millions of 
 dollars had been expended upon it, and the princi 
 pal difficulties overcome, another company came 
 in and took up the road and completed it. Nbw, 
 Sir, it is quite probable, that the whole of that 
 region would yet have been without that railroad 
 accommodation, had it not been for the expenditure 
 of the State ; and if you now go into that State, I 
 doubt whether you can find five reasonably intelli 
 gent men in the whole of it, who do not rejoice 
 at this day that the State made this advance. 
 
 [Here the hammer fell.] 
 
 Mr. LADD, of Cambridge. I am glad to find 
 at length that the policy in regard to granting the 
 aid of the State credit in furthering and carrying 
 on the great objects of improvement in our Com 
 monwealth, has at last received its proper con 
 sideration ; and while I concur entirely in what 
 appear to me to be the very conclusive views of 
 the gentleman for Erving, (Mr. Griswold,) on 
 this subject, as a reason why we should not now, 
 and at this stage of our progess, forever close 
 all chance in the future of aid from the Com 
 monwealth in regard to projects of this char 
 acter, I will take the liberty of presenting very 
 briefly my views upon this question ; and while 
 they may be very general in their character, 
 I will premise that if they have no other quality 
 to recommend them, they shall at least have that 
 of brevity. 
 
 I am one of those who, from principle, have 
 always adhered to that policy of legislation which 
 is not confined to the minimum amount of legis 
 lation not to those simple and naturally general 
 laws but I have always regarded it as one of 
 the highest functions of the Commonwealth, and 
 of its legislature, to extend a beneficent and pa 
 rental aid to those projects which tend to develop 
 all the resources of the State, and for the improve 
 ment of the possessions of all its citizens ; and is 
 there any gentleman on this floor, or any man in 
 
58th day.] 
 
 LOAN OF STATE CREDIT. 
 
 11 
 
 Friday,] 
 
 LADD HATHAWAY. 
 
 [July loth. 
 
 this Commonwealth, that will deny that that pol 
 icy which has been pursued for twenty or twenty- 
 five years in encouraging these enterprises, has 
 been a good policy ? Is there any man who will 
 deny that it has been a sound policy ? Will any 
 man deny that it has brought untold riches to the 
 Commomvealth, and that it has contributed, di 
 rectly or indirectly, to the wealth and prosperity 
 of our citizens ? No gentleman, I think, will 
 deny it. Then the question comes, whether 
 at this time the policy should be changed ; 
 whether we should introduce into our organic 
 law in absolute prohibition that no legislature 
 hereafter shall grant any such aid ? And yet I 
 understand that to be the effect of the amendment 
 as it now stands, if it should be adopted. This 
 matter, then, it seems to me, depends upon higher 
 considerations. If we come to that conclusion, 
 we must foresee that the time has arrived when 
 no farther aid should be granted, and all supplies 
 of this nature in future should be forever stopped. 
 Now, this is sufficiently answered, by the fact 
 that we have brought into this discussion a great 
 enterprise, in which a large portion of the Com 
 monwealth is directly or indirectly interested. 
 It can only be brought in here for the purposes 
 of illustration ; and does not every gentleman 
 know that if this provision passes, requiring a 
 vote of two -thirds of both houses of the legisla 
 ture before any such grant is made, it will defeat 
 the object to which I refer, and perhaps every 
 object, however meritorious ? 
 
 I concur with the gentleman forErving, that it 
 might, and in all probability will, have that effect 
 in the organization of the legislature of the Com 
 monwealth on questions of that kind ; that there 
 will be differences of opinion honest differences of 
 opinion in the first place, as to its necessity, and 
 in the second place, as to its security, and in 
 the third place, as to the propriety of grant 
 ing aid in any particular instance ; and the re 
 sult will be in every case, however meritorious, if 
 you require two-thirds of each House of the legis 
 lature to concur in the grant, that they never will 
 concur. I think, therefore, that gentlemen ought 
 not to come hastily to the conclusion that it may 
 never hereafter be desirable that such aid should 
 be granted. And if that be so, are gentlemen 
 prepared to incorporate a provision into the Con 
 stitution, the effect of which will be to declare that 
 it never hereafter shall be granted ? Such will 
 be the effect of the provision as it now stands. 
 Why require that two-thirds of the legislature 
 shall be required to concur ? Sir, it seems to me 
 that such a provision originates in this consider 
 ation : that you are not willing to trust the legis 
 lature. A distrust of future legislatures, appears 
 
 to me to be the sole foundation of the argument 
 on which the proposition is based. And why 
 should that be so ? Why are you unwilling to 
 repose in successive legislatures a reasonable con 
 fidence that they will not abuse the trust confided 
 to them ? With all the checks and securities that 
 you have, is there any danger that they will over 
 stretch their power ? Is there any danger that 
 any proposition will be passed, unless it be 
 such a one as ought to be adopted ? Sir, with 
 the light of past experience, with the facts which 
 we have all around us, illustrating the policy of 
 the Commonwealth on this subject, it seems to 
 me that we cannot shut our eyes to the impor 
 tance of leaving this matter entirely free to the 
 legislature. We do not, and we cannot know 
 what important questions may arise. I am, there 
 fore, in favor of a reconsideration of this subject, 
 with a view to strike out that provision requiring 
 the concurrence of two- thirds of each House. I 
 would have the matter left entirely to the 
 wisdom and discretion of successive legislatures 
 to determine. We must repose confidence 
 somewhere ; and I do not know where we can 
 repose it better, or more securely, than in the 
 legislature chosen by the people to watch over 
 their interests. 
 
 Mr. HATHAWAY, of Freetown. When this 
 subject was under consideration the other day, I 
 had, I believe, about four or five minutes time in 
 which to express what I desired to say. I then 
 stated to the Convention, that at some future time, 
 if I found an opportunity, I should endeavor to 
 present my views in relation to this matter of 
 loaning the State credit. As my friend from Fall 
 River, (Mr. Hooper,) remarked, a day or two ago, 
 I never made a set speech in my life, and there 
 fore my remarks may be of rather a desultory 
 character ; but I have my views in respect to this 
 question, and they are views which I have enter 
 tained for a long period of time. 
 
 Permit me to say, before advancing farther, 
 that the gentleman for Erving remarked that 
 this was not a part of the programme under which 
 the Convention was called together. I do not 
 know that it was ; but I know very well as well 
 as that gentleman knows that this matter has been 
 before the people, and has been discussed for years, 
 and years, and years, that have passed by ; and, 
 as my friend from Taunton, (Mr. Morton,) said 
 the other day, such is the truth. I have had 
 something to do with this matter for years, and 
 years, and years ; and I am not yet convinced but 
 that the argument I am not about to say in 
 reference to the particular matter which has been 
 referred to, whether all the farms were mortgaged 
 or not, or whether our farmers would suffer from 
 
12 
 
 LOAN OF STATE CREDIT. 
 
 [58th day. 
 
 Friday,] 
 
 HATHAWAY. 
 
 [July 15th. 
 
 the establishment of railroads or not but the 
 principle involved in this provision I then main 
 tained, and yet maintain to this day, as being true. 
 In reference to this matter of loaning the credit 
 of the State, or the funds of the State, I have to 
 say, that the funds of the State belong to the 
 State ; the credit of the State belongs to the peo 
 ple, and to the individuals who make up that 
 people. But, permit me to say, Sir, that the in 
 dividuals who make up the people, have an inter 
 est not only in the credit of the State, but they 
 have an interest, also, in the money that is in the 
 treasury of the State. I was remarking the other 
 day, when I was up before, when the proposition 
 of the gentleman from Tauntoii was under discus 
 sion, that that proposition did not go far enough 
 for me, but yet that I should vote for it, because I 
 thought it probably was the best we could get. 
 After it was negatived in the Convention, I 
 made up my mind to take the next best that 
 I could find, and that came as near shutting 
 down the gates as might be ; and hence I voted 
 for the proposition of the gentleman from Boston, 
 that is now the subject of reconsideration. If 
 any corporation, Sir, in this Commonwealth I 
 lay it down as a rule, and more especially rail 
 road corporations, when fairly looked at and con 
 sidered will probably yield six per cent., and the 
 community are satisfied that it will yield six per 
 cent., there will always be a sufficient amount of 
 private capital in the Commonwealth to take the 
 stock. It probably never will be otherwise in all 
 time. Hence, if the Hoosac Mountain is to be 
 bored, if there is a tunnel to be made through it, 
 if a railroad in that direction will be a six per 
 cent, paying stock, there is no danger but that 
 sharp-eyed individuals and keen-sighted specu 
 lators the men of money and of means will be 
 ready to take that stock ; aye, plenty of them ; 
 and there will be no necessity for ever asking the 
 loan of the State credit. 
 
 Sir, the Western Railroad was a matter of ex 
 periment ; so, too, was the great canal which was 
 opened from Buffalo to Albany. Both of these 
 were mere experiments. Every one saw the ne 
 cessity of having a great highway from Albany 
 to Buffalo, in order that the waters of the Hud 
 son and the waters of the lakes might be con 
 nected. Every one saw the necessity of having 
 a highway between Boston and Albany, as the 
 products of the West might as well and as cheaply 
 find their way to the eastern section of the coun 
 try, as to go down the waters of the Hudson to 
 the city of New York. But, because we have 
 experimented once or twice, and may have come 
 out well, is that any reason why we should be 
 continually experimenting so long as any person 
 
 wishes so to experiment ? By no means. Shall 
 we bring our experiments into competition with 
 each other ? I think that that is altogether un 
 necessary. 
 
 If the Western Railroad does all that is neces 
 sary to be done, and all that was expected to be 
 done, under that experiment, then why experi 
 ment farther ? Sir, I am not disposed here to go 
 into statistics, although I have seen some statis 
 tics upon this subject. I am not disposed to show 
 here, if I could, that the reduction upon the car 
 riage of freight is going to be but very small, 
 provided you build your railroad from here to 
 Troy. I rather think that a matter not to be dis 
 cussed here. 
 
 But, in reference to this matter of experiment, 
 what are the facts ? The great State of New York 
 took the lead, as to these great avenues of travel 
 which have been opened. She opened her canal 
 from Albany to Buffalo. Pennsylvania followed, 
 and she not only opened her canal, but a railroad, 
 in order to connect the two extremes of the canal 
 on either side of the mountains from Johnstown on 
 the one side, to Hollidaysburg on the other. It 
 was an undertaking which required a great 
 amount of capital, but being an experiment, not 
 an individual who was a capitalist, dared to hazard 
 his money upon it. It became necessary, then, in 
 order to ascertain whether this experiment would 
 be profitable or not, that the State should loan its 
 credit to the enterprise. It did not exactly loan 
 its credit either, for that great internal improve 
 ment belonged to the State, and not to an indi 
 vidual corporation. The State took the stock, 
 and the State built it. There was no asking the 
 State to loan its credit for the encouragement of 
 any association of individuals. The work was 
 State property. 
 
 Well, what folio wed in process of time ? The next 
 thing we see, so far as the State of New York is 
 concerned, is a railroad laid along, almost upon the 
 banks of the canal, from Albany to Buffalo. The 
 different links in the chain were built and owned 
 by different corporations, but they are virtually 
 one. Was there any loaning of the State credit 
 to this corporation. No, there was not. But in 
 stead of this, individuals of capital vested their 
 money in different portions of that chain, as they 
 advanced from one stage to another. And what 
 did the State of New York do ? She imposed 
 upon that road burdens, and because the State 
 itself owned the canal, she would not permit the 
 railroad from Albany to Buffalo to carry a single 
 pound of freight over their road, between those 
 two points, without paying precisely the same 
 duty to the State, which the owners of property 
 transported upon the canal, paid to the State. 
 
58th day.] 
 
 LOAN OF STATE CREDIT. 
 
 13 
 
 Friday,] 
 
 HATHAWAY. 
 
 [July 15th. 
 
 That was very well for the time being. In process 
 of time, the project of the New York and Erie 
 road was started. I supposed the gentleman from 
 Boston was going through the history of that en 
 terprise ; but he did not tell us the end of the mat 
 ter. That road went on for a time, and they 
 asked the loan of the State credit to assist them. 
 Mark, the first experiment in reference to the 
 canal was paid out of the public purse, and 
 the first road built from Albany to Buffalo, 
 Was an experiment paid for out of individual 
 funds. Then comes the New York and Erie 
 road, the object of which was to open another 
 great highway between the waters of the lakes 
 and the waters of the Hudson River and the 
 ocean, for the exportation and the importation of 
 goods, from this section to that section, and the 
 produce of these different sections to New York. 
 They call upon the great State of New York to 
 loan its credit. The loan was made, to the 
 amount, according to my recollection, of three 
 millions of dollars. Well, they undertook to 
 build their road that is, the corporation, and not 
 the State with the loan of about three millions 
 of dollars of the State credit to assist them. They 
 constructed the road as far as the village of Elmira, 
 and there they stopped, for want of funds. The 
 stock was not worth a dollar in the market. But 
 they formed a connection with another road 
 which came down from the head of Seneca Lake 
 to Elmira. By this means they were able to di 
 verge to that lake, take a steamboat, and land 
 at Geneva. Now, pray tell me, if they stopped 
 there in the construction of their road, how much 
 better off the State of New York would have 
 been for this loan of three millions of dollars r 
 What was the consequence ? The State of New 
 York, to induce that company to carry through 
 their road in a given reasonable time, said : 
 " Gentlemen, I know you will never proceed an 
 other inch, and the people of the State will lose 
 the money they have loaned you. We know 
 your work is to come into competition for the 
 same business done upon our canal and by the 
 other road. We cannot raise a single dollar from 
 the road to pay us our three millions, and if you 
 will go on and complete your road in a given 
 time, we will give you the three millions of dol 
 lars." 
 
 That was the condition in which that great Erie 
 road stood. They went through with the work, 
 and yet, with this gift of $3,000,000, how much 
 is the stock worth ? Is it worth the one hundred 
 dollars the share, the par value ? By no means, 
 and never will be ; and I do not believe that any 
 man in his senses believes it ever will be worth 
 that. After that contribution of three millions, I 
 
 believe the stock is worth about eighty or ninety 
 dollars on the share. But that is not the end of 
 the matter. The road between Albany and Buf 
 falo comes to the legislature, and says : " You have 
 imposed a restriction upon us in regard to the 
 transportation of freight, and now you have put 
 a road in competition with us. Now, we do not 
 ask of you a gift of $3,000,000, but we ask per 
 mission to carry freight free of tolls at that season 
 of the year when your canal is frozen up. You 
 have imposed upon us a duty, when you could 
 not carry a pound of freight upon your canals. 
 We ask you to remove that restriction, and put 
 us upon the same footing with the other road." 
 
 And what did the State of New York do r 
 They took off the duty, and that road is now per 
 mitted to carry freight in precisely the same man 
 ner as the southern road docs, and although duty 
 is to be paid upon goods transported upon the 
 canals, no duty is paid upon that which is carried 
 upon the railroads. 
 
 This is the history of the internal improvements 
 of the State of New York. Now, who has suf 
 fered from that policy ? Who but the individuals 
 that live in the State of New York ? 
 
 Sir, I should not have said a word in reference 
 to the history of these great matters in the State 
 of New York, had not the subject of the Hoosac 
 Tunnel been introduced here. I am opposed to 
 the proposition of loaning the State credit, from 
 principle. If I had been here at the time when 
 the credit of the State was loaned to the Western 
 Railroad, I should have been opposed to it, be 
 cause it was a matter of experiment ; raid I hold 
 that the agents of the people ought never to ex 
 periment with, the people s money. But the loan 
 was granted, and I pray it will turn out well for 
 the State. 
 
 I believe the State of New York also loaned its 
 credit to another railroad, called the Hudson and 
 Berkshire Railroad. What is the condition of 
 that road to-day r I understand it is advertised 
 for sale for the non-payment of the interest to the 
 State. It never will be a road paying six per 
 cent. 
 
 Well, Sir, what is applicable to a great com 
 munity is applicable to a small community, and 
 what is applicable to a small community is appli 
 cable to a great State. Now, let us see how this 
 matter has worked, when applied to a smaller 
 body than the State. The city of Bridgewater, in 
 Connecticut, under the authority of the legisla 
 ture, loaned their credit to a railroad called the 
 Housatonic. They did this under the mania and 
 fever that was then raging in relation to railroads. 
 Repudiation was the consequence. When the 
 scrip winch was issued by them became redeem- 
 
14 
 
 LOAN OF STATE CREDIT. 
 
 [58th day. 
 
 Friday,] 
 
 HATHAWAY SCHOULER. 
 
 [July 15th. 
 
 able, there was a perfect tumult in reference to 
 the matter ; arid yet I venture to say that every 
 person in Bridgewater, at the time the scrip was 
 issued, was in favor of it. Yet repudiation took 
 place, and execution after execution issued to en 
 force the payment. They went to the supreme 
 court of Connecticut, and it was not until the 
 law had been confirmed, over and over again, 
 that they would pay. 
 
 In consequence of the great amount of internal 
 improvements in which Pennsylvania became in 
 terested, she almost came to the door of repudia 
 tion. Time after time she could not pay the 
 interest upon the money she had borrowed in 
 Europe. 
 
 How has this matter been at the West ? This 
 perfect avalanche of excitement and feeling in re 
 lation to railroads, which seemed to pervade the 
 whole community here, found its way to the 
 West. And what was the result ? Repudiation 
 after repudiation, and disgrace after disgrace ; and 
 I would by no means bring the ancient Common 
 wealth of Massachusetts within that vortex of 
 repudiation which has been exhibited all over the 
 "Western States. 
 
 But I would go even farther than, to prohibit 
 the loaning of the State credit. I would not only 
 say that the legislature should not loan the State 
 credit, but I would not permit the legislature to 
 authorize any municipal corporation to loan its 
 credit to, or take stock in, any corporation what 
 ever. 
 
 How came this matter of repudiation to be so 
 extensive at the West ? I think I know some 
 thing about it. The burnt child always dreads 
 the fire. I had a slight visitation in reference to 
 that matter, and perhaps I am not exactly a dis 
 interested witness in relation to it. 
 
 Mr. WILSON. I wish to ask the gentleman 
 if he will have the goodness to inform the Con 
 vention which of the Western States have repu 
 diated their debts ? 
 
 Mr. HATHAWAY. Why, Mr. President, I 
 thought what I alluded to was a matter of pub 
 lic notoriety. It will be recollected that Penn 
 sylvania did not pay her interest. I suppose the 
 gentleman would not call that repudiation. There 
 are some of the Western States which, in a like 
 manner, have declined to pay the interest upon 
 their liabilities. I call that repudiation, but I 
 presume the gentleman would not. The differ 
 ence between us is a mere difference of words, 
 and I am sure we shall not quarrel about that. 
 He knows what I mean, when I speak of repu 
 diation. I do not say that the people of these 
 States refuse, absolutely, to pay their liabilities, 
 but they did decline to pay the interest upon 
 
 them, and that I regard as an element of repu 
 diation. 
 
 Now, Sir, in reference to these Western States, 
 how came they by these State debts ? Just look 
 at the history of the matter. It was not in con 
 sequence of the great internal improvements by 
 the States themselves. It was not in opening 
 these great public channels of communication, 
 but it was because the people of the various sec 
 tions of those States seemed to have an absolute 
 mania for these improvements. Corporation 
 after corporation was authorized by the legisla 
 ture, supposing that they would be equally bene 
 ficial with those great projects which the State 
 had entered into. And what was the conse 
 quence ? Why individuals connected with those 
 corporations were the sufferers. I speak what I 
 know in reference to this matter, for I have been 
 a sufferer, to some extent, from that mania in one 
 of those corporations. Under Providence, it was 
 my fortune to have a little patrimony, located 
 within the limits of one of them, and it hap 
 pened to be real estate, and I felt the effects of it. 
 Every town, every county almost, became con 
 nected with these projects for internal improve 
 ments. And what was the consequence ? Why 
 individuals failed in their bonds. They would 
 carry their roads through certain sections, and 
 then bring up. Then they would go into the 
 next county, perhaps, and say : "If you will take 
 half a million of our stock, or get leave of the 
 legislature to authorize you to loan your credit to 
 that amount, one or the other, you may have the 
 railroad through your county. Otherwise, we 
 must go through the adjoining county." Well, 
 Sir, this mania continued to prevail among the 
 people 
 
 Here the hammer fell, the half-hour, fixed by 
 order of the Convention, as the limit for speech 
 es, having expired. 
 
 Mr. SCHOULER, of Boston. The gentleman 
 from Freetown, (Mr. Hathaway,) has spoken 
 about every State, except the State of Massachu 
 setts. 
 
 Mr. HATHAWAY. I was going to speak 
 about that, when the half-hour cut me off. 
 
 Mr. SCHOULER. Well, Sir, I do not know 
 what the gentleman would have said, if the half- 
 hour had not cut him off, but I wish to make a 
 remark in relation to what he has already said. 
 In the first place, I understood him to say that 
 he had always been opposed to loaning the State 
 credit to private corporations, though he had 
 never committed himself fully upon the mort 
 gage question. He had never expressed his opin 
 ion definitely, upon the question of mortgaging 
 the farms of the people. 
 
58th day.] 
 
 LOAN OF STATE CREDIT. 
 
 15 
 
 Friday,] 
 
 SCHOULER. 
 
 [July 15th. 
 
 Mr. HATHAWAY. If the gentleman will 
 permit me, I will explain. What I did say was, 
 that in former times, there was a question before 
 the people in reference to the matter of which 
 the gentleman speaks, but whether it was right 
 or wrong, I had nothing to say. 
 
 Mr. SCHOULER. Now I wish to say a word 
 to the reformers of this Convention. A great 
 deal has been said about the reform party in this 
 Convention, and, as I place myself in that cate 
 gory, I wish to address myself to the reform 
 members of the Convention. 
 
 A MEMBER. As brothers ? 
 
 Mr. SCHOULER. Yes, as brothers. Now, 
 Sir, we have made some improvements in our 
 Constitution. But that Constitution has yet to 
 receive the sanction of the people, before it be 
 comes the organic law of the Commonwealth. It 
 seems to me that there is such a disposition to 
 load it down with all manner of local questions, 
 that you will kill the Constitution before the 
 people. The very fact of putting into your 
 Constitution this provision, which you are con 
 sidering, will, in my judgment, deprive it of a 
 great many votes. In certain parts of the State, 
 disguise it as you will, this Hoosac Tunnel ques 
 tion is one which will have an influence on the 
 acceptance of the Constitution we may submit, 
 if it contains a provision incorporated for the 
 purpose of preventing the aid of the State being 
 given for that work. In the northern and west 
 ern portions of the State, there is a very strong 
 feeling in favor of that Tunnel, and if you place 
 in your Constitution a restriction which shall pre 
 vent the majority of the legislature, and a ma 
 jority of the people of the State, from expressing 
 their opinions upon the subject of loaning the 
 credit of the State to aid in its construction, a 
 large class of the people in those sections of the 
 State, will vote against your Constitution for 
 that reason. I want the reformers of this Con 
 vention to consider that fact. 
 
 Now, Sir, I want the majority of the legislature 
 to settle this question, just as they have settled it 
 under the present Constitution, in years past. 
 However much we may talk about the improvi 
 dence of other States, there has been no improvi 
 dent legislation in Massachusetts upon this sub 
 ject of the credit of the State. 
 
 I hold in my hand the Report of the Auditor, 
 from which I find that the whole amount of res 
 ponsibility upo n the part of the State, to the dif 
 ferent railroads of the State, is about $5,000,000, 
 and here are the details : 
 
 Western Railroad 
 
 Due April 1,1868, 
 
 " Oct. 1, 1868, 
 
 " " 1, 1869, 
 
 135,000 
 337,500 
 90,000 
 
 Due April 1, 1870, 
 " 1, 1871, 
 
 180,000 
 157,400 
 
 899,900 is $3,999,555 56 
 
 Add for exchange, $320,000. 
 Eastern Railroad 
 
 Due July 1,1857, . . . $100,00000 
 " Sept. 1, 1853 ..... 109,000 00 
 
 " April 1, 1859, . . . 300,000 00 
 -- 
 
 Norwich and Worcester Railroad, due July 1, 
 1857 ....... 
 
 Andover and Haverhill Railroad, now Boston 
 
 and Maine, due August 1, 1857, . . 
 
 Boston and Portland, now Boston and Maine, 
 
 due August 1, 1859, .... 
 
 500,000 00 
 400,000 00 
 100,000 00 
 
 50,000 00 
 $5,049,555 56 
 
 Now, Sir, the State has a clear mortgage upon 
 every dollar of property belonging to every one 
 of these railroads for the money, or rather the 
 credit she has loaned them, amounting, in all 
 probability, to not less than from $20,000,000 to 
 $25,000,000. Does that look like repudiation on 
 account of these improvements ? Sir, there is not 
 a man in this Convention ; there has not been 
 an attempt in this debate, to show where the State 
 of Massachusetts ever run any risk, or that she is 
 likely to lose a single cent, by any act of her legis 
 lature in loaning the State credit. 
 
 Now, Sir, I am ready to leave this question to 
 the legislature. If it should appear that there 
 is any portion of the State which has not enjoyed 
 the benefit of any assistance upon the part of the 
 State to develop its resources, and the loan of 
 the credit of the State is necessary to carry out 
 any great project which they have in view for 
 that purpose, I say, in God s name, let them 
 have it. 
 
 Sir, I say and I say it without fear of contra 
 diction that if the State of Massachusetts had to 
 pay every cent of scrip to which she has put her 
 name, for the encouragement of these internal 
 improvements, it would be money spent to better 
 advantage than any ever spent since she became 
 a State. It has raised up the State ; it has added 
 to her population ; it has added to her taxable pro 
 perty as much as $200,000,000. And if we had 
 not lent the aid of the State, or, at least, if they had 
 not been carried out and it is exceedingly doubt 
 ful whether they would ever have been carried out 
 without the aid of the State we should have 
 fallen in every respect far behind what we are 
 now ; we should have fallen farther behind, in 
 proportion to our former position, than any State 
 in the Union. 
 
 I am surprised, that at this late day, when we 
 have the light of experience, that gentlemen 
 should talk about crippling the energies of the 
 State, by placing a provision in our Constitution 
 which shall deprive the legislature by depriving 
 a majority of the people of the State, through the 
 representatives in the legislature of the power of 
 
16 
 
 LOAN OF STATE CREDIT. 
 
 [58th day. 
 
 Friday,] 
 
 SCHOULEB. 
 
 [July 15th. 
 
 expressing their opinion upon this subject. I am 
 opposed to any such provision. I hope the vote 
 of the Convention, by which the provision now 
 before us was adopted, will be reconsidered, and 
 that the whole matter will be left in the power of 
 the legislature. 
 
 It will be found very difficult, in practice, to 
 get two-thirds of the members of the legislature 
 to go for any measure of that kind. If such a 
 provision had been incorporated into our present 
 Constitution, in all probability, we should never 
 have had the Western Railroad at all. True, it 
 was an experiment. We could not tell how it 
 would work. But, Sir, when it came to be put 
 through, and to develop the wealth and resources 
 of the Commonwealth, we found that we had 
 made a good experiment. But now we have the 
 light of experience. We know what can be 
 done, by what has been done. And yet, gentle 
 men are afraid to trust the majority of the legis 
 lature, to say whether they will loan the credit of 
 the State, or not. 
 
 Sir, it seems to me that it comes with a rather 
 bad grace from the members of the Convention, 
 from the city of Boston, and from members who 
 come from those portions of the State which have 
 been enriched by the credit of the State, to come 
 here and try to cramp the energies of the Com 
 monwealth; to try to place a bridle upon our 
 necks, and to prevent us hereafter from ever assist 
 ing that portion of the Commonwealth which has 
 never received one single dollar for the purpose 
 of developing its resources. I am in favor of 
 treating every portion of the Commonwealth with 
 equal liberality. 
 
 Now, Sir, the gentleman from Freetown, (Mr. 
 Hathaway,) and every other gentleman who has 
 spoken here upon the same side of the question, 
 will find it impossible to make out any argument 
 in favor of the provision now before us, from any 
 act of the legislature of Massachusetts upon the 
 subject. If the legislature had been improvident, 
 that might have furnished some ground for an 
 argument. But it has not. The gentleman from 
 Freetown told us of three millions given up by 
 the State of New York, which she had loaned to 
 the Erie Railroad. Why, Sir, if that road could 
 not have been built without the aid of that three 
 millions of dollars and I take it for granted that 
 it would not have been built I ask any gentle 
 man here whether it was not a good investment 
 upon the part of the State of New York ? Where 
 could she have invested her three millions to 
 better advantage ? And I may say just as much 
 for the Erie Canal, which has been so great a 
 source of wealth and population both to the State 
 and city of New York. The whole West have 
 
 become tributary to her. And, Sir, we wish to 
 avail ourselves of some portion of the wealth of 
 these Western States. 
 
 In regard to the State of Illinois, every one 
 knows there was a system of log-rolling carried 
 on in her legislature, which was the cause of all 
 the trouble. In order to get one project through 
 the legislature, members were obliged to vote for 
 others, in which other members were interested, 
 but which were of no public interest or impor 
 tance whatever. That is the way in which these 
 Western States have become so deeply involved 
 in debt. And I believe repudiation has taught 
 them a lesson in this respect. But, Sir, these 
 States are rapidly filling up, and the time will 
 come when these very improvements, which, up 
 to the present time have not been productive, 
 will become productive, and they will more than 
 compensate for all the losses they have occasioned. 
 But here in Massachusetts we have involved our 
 selves in no such difficulties. Everything has 
 gone on well, and why not allow the system to 
 remain as it is ? 
 
 The gentleman talks about experimenting with 
 the credit of the State, and experimenting with the 
 people s money. I will ask him whether it is not, 
 at least, as bad to experiment with the Constitu 
 tion of the State ? He proposes to experiment 
 with the fundamental law in reference to this 
 subject, and I ask him whether the credit of the 
 State is any more sacred than the fundamental 
 law of the State ? 
 
 Sir, I am willing to stand by the past experience 
 of the State, and I believe the people are willing 
 to stand by it. But I should like to ask the gen 
 tleman from Freetown, whether he can tell me if 
 many of these appropriations of other States did 
 not pass by a majority of two-thirds ? I think 
 the probability is, that at the time when there 
 was such a rush for these internal improvements, 
 many of the appropriations were passed by a two- 
 thirds vote ? There are a number of States which 
 a few years ago were repudiating States, but one 
 by one they have got back again. Pennsylvania 
 was one of the repudiating States, but she has 
 entirely recovered, and I have no doubt, in a 
 great measure, in consequence of these very in 
 ternal improvements which were the cause of her 
 repudiation. Now she is not a repudiating State. 
 I thought a few minutes ago that Mississippi was 
 the only State in the Union that actually repu 
 diated, but I think Illinois has once not been able 
 to pay her interest, and she will, therefore, have 
 to be placed in the same category. But, Sir, that 
 State is filling up rapidly, and I doubt not the 
 time will come, and within ten years too, when 
 the State of Illinois will be able to pay every cent 
 
58th day.] 
 
 LOAN OF STATE CREDIT. 
 
 17 
 
 Friday,] 
 
 SCHOULER BISHOP. 
 
 [July loth. 
 
 of principal and interest upon her public debts. 
 It cannot be otherwise. 
 
 I had no intention of speaking upon this sub 
 ject, but I believe it to be a question of consider 
 able public importance ; and I believe if the 
 Constitution goes out to the people with this 
 provision in it, it falls dead. That, of itself, will 
 engender such an opposition as to defeat it. The 
 whole people on the line of the railroad for which 
 this loan of the State credit is now asked, will go 
 against it. In the northern part of Berkshire, in 
 the whole of Franklin, in parts of Hampshire, in 
 the city of Boston, and scattered here and there 
 all over the State, there is a class of men who are 
 determined that the credit of the State shall be 
 lent to that corporation, and if this Convention 
 undertakes to go out of its way to prevent it, they 
 will vote against the Constitution. 
 
 Again, I ask the reform members of this Con 
 vention if they are ready to put this lump of lead 
 round the neck of your Constitution, which w r ill 
 sink it so deep that you will never be able to find 
 it again ? I trust not. I go for the reconsidera 
 tion of tliis vote, and for leaving the Constitution 
 precisely where it now stands in regard to this 
 subject. I ask that the people in their representa 
 tive capacity may decide the matter for them 
 selves, and that this Convention shall not under 
 take to do that for them. 
 
 Mr. BISHOP, of Lenox. Mr. President: 
 On Saturday last, upon the motion of the dele 
 gate from Boston, (Mr. Giles,) this Convention 
 resolved that " the legislature shall not have power 
 to grant the credit of the State to any individual 
 or corporation, without a two-thirds vote of the 
 House of Representatives and the Senate in its 
 favor." 
 
 The delegate from Charlestown, (Mr. Thomp 
 son,) has moved a reconsideration of the vote 
 adopting this resolution. To its general object 
 and policy, I have no disposition, and am not 
 called upon by the motion for reconsideration, to 
 object. The power of the legislature to pledge 
 the credit and good faith of the people, if not a 
 questionable, is, in my opinion, a very limited 
 one. I deny its power, to aid by this mode, 
 enterprises of a merely private character. It has 
 no authority to sign and endorse negotiable notes, 
 or draw and accept bills of exchange, in the name 
 of the State, for the accommodation of individu 
 als, mercantile or manufacturing firms, or corpo 
 rations, engaged in manufactures, navigation or 
 commerce, for their benefit solely, or to make the 
 people their copartners in business. From this 
 proposition, no well-informed legal gentleman 
 would, I think, dissent. If there be danger of 
 the people s becoming involved, through the act 
 
 of their legislature, in the hazardous enterprises 
 of navigation, manufacturing, banking, &c., it is 
 wise to dispel it at once, by some decisive consti 
 tutional restriction. No danger of this sort, 
 however, is apprehended. The sole question is 
 this, shall the State aid by its credit, those im 
 provements of a public character, now made and 
 to be made by corporations for the benefit of the 
 people, and which can be authorized only by the 
 legislature. Improvements of this character, 
 when too vast for individual capitalists, are, in 
 other States, made, owned, and carried on, by the 
 people themselves. It is thus, with the great 
 canals of New York and Pennsylvania. They 
 are the work, and under the administration, of 
 the State. This State has adopted a different 
 policy, whether safe and prudent, wise or un 
 wise, is too late now for discussion. The policy 
 is fixed and settled, and has now gone too far, 
 perhaps, to be arrested. "Whether the people 
 should not have retained in their own hands 
 those great and perilous powers which they have 
 imparted to corporations, and have done on their 
 own account and at their proper charges, 
 what they have employed these corporate bodies 
 to do for them, is a subject past the period of 
 debate and inquiry. The instrumentalities of 
 effecting the great and necessary public facilities, 
 which bring about the intercommunication of 
 Massachusetts with the rest of the world, are 
 established. I can say with truth, to my much 
 respected friend from Taunton, (Governor Mor 
 ton,) this was no policy of yours or mine. That 
 day may yet turn out to be an evil day, when 
 the legislature of this State carved from the 
 sovereignty of the people, so much thereof, as 
 relates to railroads, and dished it out to corpora 
 tions. This system of legislation, if pursued in 
 relation to other matters, as it has been in relation 
 to railroads, might, in time, and at some day not 
 very far away in the future, strip the people 
 entirely of that portion of their sovereign power 
 by which they may now plan and execute for 
 themselves, and fatally weaken and abridge the 
 means which they may be required to use here 
 after, by the frequently occurring and constantly 
 varying demands and exigencies arising from pro 
 gressive changes and improvements. Such grants, 
 fixed and rendered irrevocable by the doctrine of 
 vested rights, as that doctrine has been expounded 
 and enforced, may leave the people mere specta 
 tors of the achievements of their own delegated 
 strength, and like Sampson, shorn and shaven, 
 they may wake up and find their strength de 
 parted, and themselves bound down by Philis 
 tines, which their own charters have made. 
 The people demanded these improvements. 
 
18 
 
 LOAN OF STATE CREDIT. 
 
 [58th day. 
 
 Friday,] 
 
 BISHOP. 
 
 [July 15th. 
 
 The world demanded them. In space, they are 
 local. In usefulness, however, as parts of a 
 great system, they are world- wide. The people 
 have chosen to make them by chartered compa 
 nies, giving to these companies, for their hazards 
 and investments, an equivalent in special benefits 
 and exclusive privileges. It is solely upon the 
 ground of their having undertaken the State s 
 business, that they are entitled to the State s aid 
 and favorable regard and care upon the ground, 
 that having assumed the people s obligations, they 
 are entitled to their encouragement and support. 
 No\v, Sir, I am opposed to the restriction of this 
 encouragement and aid, which the resolution 
 proposes. I regard it as thoroughly prohibitory ; 
 and, if not so, as partial, inequitable, unjust 
 defeating the reasonable expectations which have 
 been raised. No system of public improvements 
 should be adopted by the State, which is not 
 general ; and in considering the question before the 
 Convention, the relative claims and present con 
 dition of the several sections of the State, should 
 be regarded. If the system, in order to its com 
 pletion, ought to be farther extended, if certain 
 parts of the State are not provided with the rail 
 road facilities accorded to others, whose claims 
 are no better, some sound reason should be 
 adduced for withholding them. Impracticable 
 schemes and embarrassed finances would unques 
 tionably be good cause for prohibiting future, or 
 withholding present assistance. If the past 
 shows recklessness, and improvidence, or waste 
 fulness, limitations should be placed upon the exer 
 cise of legislative power. With the present influ 
 ence of railroad corporations over legislative 
 proceedings an influence, not peculiar, but com 
 mon to them and all men, and bodies of men of 
 great means and control, I regard the vote passed, 
 not as a restriction, not as a limitation, but as a 
 full inhibition. It is proposed that the Senate 
 consist of forty members. Fourteen only are 
 required to stifle all action upon this subject. It 
 is the interest of existing railroads to prevent 
 their multiplication to monopolize, if I may use 
 the word, and secure to themselves the entire 
 transportation of men and merchandise ; and can 
 they not, with all convenient ease, without appar 
 ent activity, or semblance of trick or artifice, 
 throw into that body, of those personally inter 
 ested, enough to prevent competition by new 
 roads, and defeat every project, which, if carried 
 out, might diminish their profits ? The answer 
 is obvious. It would place the enlargement 
 and multiplication of this branch of public im 
 provements, entirely under the control of existing 
 corporations, and to them, in the first instance, 
 would the people have to apply, to extend these 
 
 great facilities, now made necessary to all depart 
 ments of industry. In short, upon this great 
 subject, intimately interwoven with the leading 
 interests and prosperity of the country, corpora 
 tions virtually would legislate, and not the 
 people, through their representatives. Is not 
 this, by indirection, to be sure, but substantially 
 and effectually, a grant by the people, through 
 their legislature, of a part of their sovereign 
 power and right of eminent domain ? The grant 
 may hereafter be revoked, if it does not get to be 
 too strong, but while in force, are not that power 
 and that right suspended. I am confident, that 
 such would be the effect of the proposed restric 
 tion that while it takes a measure of power from 
 the legislature, it imparts exactly the same meas 
 ure to existing corporations. Sir, I am not for 
 such a limitation of legislative action. I am not 
 for a prohibition, which passes over all, which is 
 prohibited to bodies which have had their full 
 share of legislative succor which have had all 
 they could ask all, which is necessary to the 
 completion and success of their enterprises. I am 
 for no such constitutional restriction upon the 
 government, as shall operate as a grant of the 
 patronage and aid left to it to those, to whom 
 aid and patronage have been meted out in gen 
 erous and abundant measure. " To him that 
 hath shall be given," may be sound theology, 
 but " from him, that hath not, shall be taken 
 away even that which he hath," certainly requires 
 to be examined, before being adopted, as a rule 
 in the distribution of legislative favors. If the 
 chartered powers and immunities, through which 
 we have chosen to construct our public works, 
 operate safely and beneficially, make them gen 
 eral, as the public good requires. If they prove 
 productive of evil, should not that evil come to 
 us diluted by diffusion. I discuss this question 
 by itself, disconnected entirely from any of the 
 other modes proposed to abridge legislative author 
 ity over public credit. I look at it, as an abstract 
 proposition, apart from any particular railroad, 
 which now is, or is proposed to be made. 
 
 Much has been said about the "Western Railroad, 
 and the Hoosac Tunnel. They are entitled to no 
 specific consideration in the debate upon the pro 
 posed limitation. They may be parts of a whole, 
 which may have relation to it. I certainly enter 
 tain no hostility to the first, and would not favor 
 the execution of the other, if it be impracticable, 
 or not called for by the general welfare, and 
 whether it be practicable, or would be of public 
 benefit, I certainly am not advised. These ques 
 tions require more close and accurate investigation 
 than one not specially concerned is inclined to 
 give, or can give. If those mountain barriers can 
 
58th day.] 
 
 LOAN OF STATE CREDIT. 
 
 19 
 
 Friday,] 
 
 BISHOP. 
 
 [July 15th. 
 
 be perforated, so as to admit to a passage through, 
 a locomotive and its train, without great and dis- 
 proportioiial expenditures, and the voice of the 
 people call for it, and they can be assured by the 
 severest inquiry which they may make, that no 
 loss will be incurred, let the mountains be tun 
 nelled. Pledges, as solid as the bonds of the " solid 
 men of Boston," should be required, if the State, 
 by her credit, gives aid. It is right that such 
 pledges be required, for although a public work, 
 it is to be executed mainly upon the judgment of 
 individuals, and largely by their capital, who 
 carefully compare and balance the privileges 
 granted with the risks assumed, and should stand 
 by them. 
 
 It is said that the "Western Railroad is not 
 only an exhibition of the active, intelligent en 
 terprise, but a standing monument of the mu 
 nificent wisdom of the State. It has, indeed, 
 thus far accomplished all the purposes of its crea 
 tion ; all that it promised, it has doubly fulfilled, 
 and more. Its security is pronounced ample, 
 firm as " terra firma "subject to diminution 
 only by earthquakes or volcanoes. Stripped of 
 it, the State would be without one of its greatest 
 sources of prosperity, and, so long as it shall be 
 administered as it has been, with reference to the 
 public accommodation and wants, and economi 
 cally and efficiently ; so long as it shall, as it has 
 done, appoint for its conducting officers gentle 
 men, courteous, kind, and attentive, to whom we 
 can commit our wives, our children, ourselves, 
 assured of exposure to those casualties only, which 
 come in spite of human vigilance and forecast, 
 it will retain, as it holds, the special favor and re 
 gards of the people, and their government. It has, 
 however, been created for special purposes. Its 
 rights and its powers are limited and defined. 
 Other rights, it cannot claim, other powers it can 
 not exercise, without transcending and violating 
 its charter, and exposing it to forfeiture. It is 
 said that this corporation is here in the Conven 
 tion that it sat with the last legislature, during 
 its protracted session. It has no business here. 
 It had no business there. It has no power to make 
 constitutions or laws, except for " the orderly 
 conducting of its own business." It has a legal 
 existence only is a legal person, with specific 
 functions, created for determinate purposes, and 
 should it assume other offices, or attempt other 
 purposes, its claim to exist would and should cease. 
 It is enough that its stockholders have and 
 retain their several individual rights, and can de 
 fend and protect their interest, as others may, 
 whether that interest be in lands, chattels, or 
 stocks. Its officers, like other men, are eligible 
 as delegates and legislators, and if, like others, 
 
 they are jealous and watchful of their rights, 
 the corporate body, of which they are members, 
 would hardly be obnoxious to censure. When 
 corporations shall appear voluntarily, as such, in 
 either department of the government, expending 
 their funds and using their powers to control its 
 proceedings in matters not within their charters, 
 and attempt to arrest public improvements, crip 
 ple private enterprises, or get rid of lawful com 
 petition, the time will have come, either for their 
 entire disfranchisement, or for severely stringent 
 circumscriptions, for the world is old enough to 
 have learned, that if there be such a thing as a 
 legal conscience, it has no sting to it. To those 
 who see imminent perils in the factitious powers 
 created by special legislation powers which set at 
 defiance individual competition, and are strong 
 and dangerous because they can do so, this con 
 solation, at least, is left : that thus far they have 
 been employed, with few exceptions, by honorable 
 men, who know as well their obligations as their 
 rights, and are willing to fulfil them. May a 
 wholesome jealousy watch and guard them, till 
 men, single-handed, with private capital, shall be 
 able to cope with them, as I trust in the revolu 
 tions of business they may be, or until a system 
 of general laws, by their impartial operation, shall 
 have placed them upon common ground. 
 
 That the inhibitory restriction proposed, should 
 have found an advocate among the delegates from 
 this city is most wonderful. That every one of 
 them should be found prudent, cautious, in favor 
 of a reasonable, and even a stringent limitation, 
 is not surprising. They are "solid men," so all 
 believe so said the oracle. The industry and 
 prosperity of city and country are compactly in 
 terwoven. The interest of mart and field are 
 almost identical. They should be brought, if 
 possible, into close proximity. The heart beats, 
 not for itself alone, but for the extremities, and 
 their twenty terminals. Boston is not Boston, 
 for her own sake only, but also for every moun 
 tain, where the chopper builds his cabin for 
 every hoof-trod hill-side for every corn-clad 
 valley. Her citizens should cooperate with those 
 of the country, in all reasonable ways, to enable 
 the latter to come here, at the least expense, and 
 in the shortest time. Fears are expressed of cen 
 tralization. Centralization of government is, in 
 deed, to be feared, and stout resistance to it should 
 be made. No man, unless it be constitutionally 
 delegated, should have more political control, than 
 belongs to him individually. He is one only of 
 many equal parts, a unit in the whole number ; 
 and no municipality or city should be suffered to 
 exercise any more of legislative or administrative 
 influence, than its just popular dividend. Busi- 
 
20 
 
 LOAN OF STATE CREDIT. 
 
 [58th day. 
 
 Friday,] 
 
 BlSHOP StJMNER. 
 
 [July 15th. 
 
 ness centres, however, have been, and always will 
 be, so long as streams unite and form navigable 
 rivers, and there are found upon the shores of the 
 ocean, at wide intervals only, secure retreats from 
 its storms. Boston is one of these central points, 
 where land meets sea, in safe and commodious 
 harbor where landsmen meet seamen, and will 
 always meet them where they interchange the 
 necessities, conveniencies, and luxxiries of life, 
 and where, I hope, there will always be an inter 
 change of material things not only, but of the 
 sentiments of kindness, respect, confidence, and 
 hearty good- will. Conventionalities may obstruct 
 the ease and frankness of intercourse, may gene 
 rate castes and classes, may canker the hearts of 
 the exclusives with pride, and tincture the spirits 
 of the excluded with envy. Conventionality and 
 jealousy are everywhere. They are incident to 
 humanity, and among the diversified forms in 
 which human folly and human weakness show 
 themselves. Those who institute invidious com 
 parisons between city and country, claiming for 
 the one all the wealth and munificence, for the 
 other all the solid intelligence and stern virtue, do 
 a positive evil, by postponing the day, when well- 
 bred intercourse and cordial good fellowship will 
 convict each of mistake, and lead to the mutual 
 correction of errors. Away with all factitious 
 social distinctions. There is no place for them 
 among the serious actualities of life no time for 
 them with those, who by steam and railroad 
 would bring the world into one neighborhood 
 into one common feeling of mutual confidence 
 and love. Leave such silly matters to brainless 
 men and idle women. An avenue from every 
 section and corner of the State, if it be called for, 
 and will pay, should be opened to her great com 
 mercial capital ; and it should no longer be com 
 plained of by the dwellers on the western moun 
 tains, that it costs double to reach their own cher 
 ished commercial capital, to what it does to go to 
 that of a neighboring State, at a greater distance 
 from them. Sir, what can be done, with full 
 assurance of no consequent loss to the State, in 
 the way of reaching this city cheaply and quickly, 
 should find no obstacles here or anywhere. 
 
 "Why, Sir, from the western part of Massachu 
 setts, we come to Boston, thank Heaven, much 
 more readily than we did ; but it is a fact, that 
 in order to reach our own commercial capital, we 
 pay four hundred per cent, more than we are 
 obliged to pay in order to reach a great commer 
 cial capital of another State, at a greater distance 
 from us. There may be physical difficulties in 
 the way, which cannot be removed ; and all that 
 we ask is the removal of every obstacle, the filling 
 up of every valley that can be filled, the lowering 
 
 of every mountain which can be brought down, 
 that we may reach our own commercial capital, 
 transact business with our own citizens, and de 
 rive our full benefit from the fact that we have a 
 reat commercial city which we love, whose in 
 terests we shall cultivate, and with which we 
 shall forever be connected. 
 
 Mr. SUMNER, for Marshfield. Mr. President : 
 I have no desire to enter upon the broad discus 
 sion which has been opened by the question now 
 before the Convention. There are considerations, 
 of clear and palpable force, which will determine 
 my vote, and which are as simple as they ought 
 to be decisive. These, with your permission, Sir, 
 I will briefly indicate. 
 
 It is proposed, by a permanent provision of the 
 Constitution, to tie the hands of the legislature, 
 so that it cannot hereafter, as in times past, lend 
 the credit of the State in aid of any private corpo 
 ration ; and an amendment has been introduced 
 by my friend from Boston, on the other side of 
 the House, (Mr. Giles,) allowing such loan ; but 
 only on the difficult and almost impossible con 
 dition of a vote of two -thirds of the legislature. 
 Both of these provisions the original proposition 
 and the amendment though differing in form 
 and degree, are identical in principle. They both 
 contemplate a restraint upon the existing powers 
 of the legislature in this regard. 
 
 Now, Sir, waiving all question of the propriety 
 of such restraint on grounds of abstract policy, or 
 on grounds suggested by the experience of other 
 States, I believe I may assume, without fear of 
 contradiction, that in times past no crying evil 
 has occurred in Massachusetts from its absence. 
 The credit of the Commonwealth has been rarely 
 lent; and when lent, it has been on sufficient 
 security, and for the general good. Witness the 
 instances which have been adduced in this debate. 
 We are not, then, pressed to this measure by any 
 special experience of evil. We have in no respect 
 suffered from the want of it. No such urgency 
 exists. This is something, and, of itself, in the 
 absence of any commanding principle, may well 
 make us hesitate to depart from the established 
 policy of the Commonwealth. But there is an 
 other consideration, to which reference has been 
 already made by gentlemen who have preceded 
 me, which completely disposes of the whole ques 
 tion. 
 
 Sir, it is notorious that an application has been 
 recently made to the legislature in conformity 
 with usage in similar cases for aid in an impor 
 tant, and, as I believe, practicable work of Internal 
 Improvement, which, when completed, will be a 
 glory to the Commonwealth, and a mighty chan 
 nel of trade and travel. This application, after 
 
58th day.] 
 
 LOAN OF STATE CREDIT. 
 
 21 
 
 Friday,; 
 
 SUMNER GILES. 
 
 [July 15th. 
 
 ample discussion, found favor in the House of 
 Representatives, but was rejected, on a very close 
 division, in the Senate I think by a single vote. 
 But the parties having this grand enterprise at 
 heart, avow their determination to renew it at 
 another session. It is, therefore, at this moment, 
 in the nature of a Pending Question of Internal 
 Improvement, of which the legislature, under the 
 existing Constitution, has jurisdiction. But this 
 is not all. At the very time honorable members 
 were chosen to this Convention, it was then a 
 Pending Question before the legislature. Under 
 these circumstances, and in the absence of any 
 besetting evil, or controlling principle, it seems to 
 me highly impolitic and meddlesome for the Con 
 vention to undertake, directly or indirectly, to 
 deal with it. Directly, you would not ; indirectly, 
 you should not. On a question thus peculiarly 
 circumstanced standing by itself, and unlike any 
 other now before the Convention Public Opin 
 ion should be left to operate in its customary 
 channel, without any impediment or breakwater 
 from us. 
 
 Sir, I am against the proposition on two 
 grounds; first, because it is not vindicated by 
 any, obvious principle, or by any ruling necessity, 
 or even expediency, founded upon the experience 
 of our Commonwealth ; and, secondly and chiefly, 
 because, notwithstanding its generality of form, it 
 is practically an offensive interference with a 
 Pending Question of Internal Improvement, 
 which we were not summoned to determine. 
 
 Mr GILES, of Boston. I ask the indulgence 
 of the Convention for a few moments, to express 
 some of the sentiments which I have in relation 
 to the resolution now before the Convention. It 
 so happened, the other day, that I found this 
 question up and under discussion. The general 
 drift of the motions before the Convention, was 
 to place a limit upon the legislative power to grant 
 the credit of the State. With that intention I 
 concurred, but I did not assent to the various pro 
 positions to obtain that object. During the vote 
 upon one of them, I framed the amendment which 
 is now before the Convention, and with reference 
 to which, as I understand, a motion has been 
 made, and is now the immediate question before 
 us, to reconsider, and which was offered by my 
 friend from Charlestown, (Mr. Thompson). The 
 object which 1 had in view in framing that reso 
 lution, which was done on the spur of the mo 
 ment, was two -fold ; first, to make it intelligible, 
 and second, to make it in a form which would ad 
 mit of being easily amended. It therefore provides 
 that the legislature shall not have power to grant 
 the credit of the State, to any private corporation 
 without two-thirds of the House, and two-thirds 
 
 of the Senate agree to it ; and it so stands, that if 
 any gentleman wishes to strike out the provision 
 requiring a two-thirds vote of the Senate, and 
 insert one requiring a majority only, or to strike 
 out the provision req-iiring a two-thirds vote of 
 the House, and insert a majority, it may be easily 
 done. 
 
 I wish now to suggest some reasons upon which 
 I found the expediency of some limitation, and 
 make a few remarks with reference to the points 
 which have been started this morning, in the 
 debate. Mr. President, what is the foundation of 
 this resolution ? Is it baseless as a vision or a 
 dream in the night; or has it a foundation in 
 reason ? If so, what is it ? I say it does stand 
 on a foundation ; and that foundation is, first, 
 that the granting of the State credit is no part of 
 governmental action ; it is an exception, an ex 
 traordinary act, and it is no part of ordinary 
 governmental action to grant the credit of the 
 State to private corporations. 
 
 That being one corner-stone of the resolve, I 
 say that the act of granting the State credit, 
 should be guarded farther than the ordinary acts 
 of the legislature, which simply require a major 
 ity. The other foundation is, that the history of 
 these grants of the State credit to individuals and 
 corporations in this country, including the gov 
 ernment of the Union, and the government of 
 each State in the Union, shows that there is dan 
 ger of abuse. I am not going into any partic 
 ulars ; I am not going to assert that any particular 
 instance is an abuse ; but I do say that it is the 
 conviction of the public mind in this country, 
 and not only in this country, but in other coun 
 tries, that there is danger of abuse from this 
 power of the legislature. 
 
 Then, this being an extraordinary act, and one 
 which is in danger of being abused, it does call 
 for more guards than ordinary legislation, to wit : 
 the majority vote. 
 
 The proposition the other day, was to put the 
 question to the people. I opposed it ; not upon 
 the ground of any distrust of the people. I said 
 then, and I say now, that if I thought there was 
 not sufficient intelligence in the people to enable 
 them to pass upon any proposition which this 
 Convention should put to them, I would vote to 
 double the school fund again and again till there 
 was. But the reason why I would not put it to 
 the people, was this. I am in favor of internal 
 improvements, as well as my friend for Erving, 
 (Mr. Griswold) ; I go for them, heart and hand. 
 I always have and always will. I wish these im 
 provements to have the good will of every man in 
 the Commonwealth ; and that is the reason why 
 I would never put one of these great enterprises 
 
22 
 
 LOAN OF STATE CREDIT. 
 
 [58th day. 
 
 Friday,] 
 
 GILES. 
 
 [July 15th. 
 
 to the people in a shape that would compel them 
 to take sides for or against it. You put a propo 
 sition of this kind to the people, and they are 
 compelled, by all the machinery of caucus and 
 electioneering, and party influences, to take sides 
 for or against it. And what would be the result ? 
 Suppose they go for it, and you get the credit of 
 the State. Good. But suppose that half, or 
 nearly half, the people of the Commonwealth go 
 against it, and you do not get the credit of the 
 State. Bad ; bad every way ; bad, because the 
 corporation has not got the State credit to aid the 
 enterprise, and because there will be thousands of 
 men in the Commonwealth ready to rejoice in 
 the failure, and say that it was but a fulfilment of 
 their prophecies, that they always knew it was a 
 bad enterprise, and must fail. That is the reason 
 why I would never put a part of the people in a 
 position which would make them the enemies of 
 any project for internal improvement. Credit is 
 based on good- will. I wish every one of the im 
 provements in the State to have the general good 
 will, and the particular good-will, of every man 
 in the Commonwealth. 
 
 My friend says, leave it to the legislature. So 
 say I. But not without a limit, because the very 
 legislature to which you leave it, is the identical 
 legislature which will be deeply interested in the 
 question for or against it, and men are but men, 
 and subject to influences, and I am not one to 
 stand here and condemn the fact that men are 
 subject to influences. I agree with the old philo 
 sophic doctrine, that man is but a bundle of in 
 fluences. I assent to the sentiments of Cicero, 
 uttered in the chamber of the Senate of Rome, on 
 a remarkable occasion, when he made a remarka 
 ble oration, and was reproached by the dema 
 gogues of that city and that day, who said that 
 his knees trembled so that they knocked together 
 in the presence of that august body of patricians ; 
 and his reply was : "I did tremble ; and my 
 knees did knock together, but not because I feared 
 the face of man, but because I was a man ; and I 
 thank the gods that I am subject to influence, be 
 cause if I am not subject to influence by others, 
 how can I influence others myself." 
 
 Now, Sir, it is the part of wisdom not to im 
 peach our Maker, and condemn his arrangement 
 of the human mind and human system, but to 
 take it as we find it, and act wisely in reference to 
 our organic laws, for their action and development. 
 My friend said again, that the experience of this 
 State has been fortunate ; that it has not lost a 
 dollar. Agreed. That it will not lose a dollar. 
 Grant it. That it will make, has made, and does 
 make, much money. True. But I do not assent 
 to that policy. I say it is wrong for a State to 
 
 enter into the business of the people, and take it 
 out of the people s hands. I am for having this 
 business done, but I am for having it done by the 
 people, and if it be successful, I would have the 
 people put the money into their own pockets, and 
 not be obliged to go into competition with cor 
 porations aided by the State. Therefore, it is no 
 argument in favor of granting the State credit, 
 that the State will thereby replenish its treasury. 
 If that be good policy, I would say to the gen 
 tleman from Lenox, why not go into the issuing 
 and endorsement of bills of exchange, and go into 
 the bonding system, and inspect the board of 
 fancy stocks, day by day. Nobody wishes for 
 that. 
 
 One word more, Mr. President, upon the sub 
 ject of corporation influence upon the legislature. 
 I have called no corporation by name, and I shall 
 not do so I allude to no individual and to no 
 corporation ; that makes no part of my thoughts, 
 or of my argument. My friend from Lenox said 
 that no corporation is here to-day. I wish that 
 were true ; but if no corporation is here to-day, 
 why do we hear of any corporations ? Now, Sir, 
 I am ready to express the conviction which I 
 have for several years felt ; but before I do it, I 
 will state what is hardly necessary for me to state 
 to anybody who knows my course, that I am a 
 friend to corporations that I have called them, 
 and I still believe them to be, the right arm of the 
 industry and enterprise of this Commonwealth. 
 I could talk an hour upon their beneficent action, 
 and describe the blessings which they have spread 
 through the land, where they have brought com 
 fort and luxury, and have stimulated all the best 
 appetites and tastes of our nature ; but I have not 
 time for that. I say they have done what must 
 be done, and what will not be done at all except 
 by associated wealth, in every new country. But 
 there is a period coming, and it has begun in this 
 country, when your corporate production cannot 
 compete, and will not compete, with individual 
 production, and enterprise, and capital, because it 
 can no more produce a yard of cotton cloth so 
 cheap as I can, than the State can do it so cheap 
 as I can. No, Sir : it neither makes the market 
 more than it is, nor has its sensitive hand upon 
 the public pxilse to know when to produce, and 
 when to stop when to buy, and when to sell ; 
 and it has, in addition to its ordinary expenses, a 
 whole roll of corporation expenses, salaries, &c. 
 But in reference to corporation influence upon 
 the legislature, what is my conviction ? It is this. 
 I speak from what I do know ; I am not going to 
 speak from anybody s knowledge, but from that 
 which produces my own convictions ; and I say 
 here, to this Convention, and to the people of the 
 
58th day.] 
 
 LOAN OF STATE CREDIT. 
 
 23 
 
 Friday,] 
 
 GILES. 
 
 [July 15th. 
 
 Commonwealth of Massachusetts, that your cor 
 poration wealth is, at this day, and at this moment, 
 too strong for your Commonwealth. Your cor 
 poration wealth has been increasing, is increasing, 
 and in my judgment, ought to be restrained. 
 Your corporation influence has increased, is in 
 creasing, and in my judgment, ought to be re 
 strained. It is too strong for the Commonwealth, 
 and your corporate wealth is too strong for the 
 Commonwealth ; and I say that, in my judgment 
 friend to corporations as I am, and it may go 
 for what it is worth I say woe to the corporate 
 institutions of Massachusetts, and the corporate 
 interest and the corporate influence of Massachu 
 setts, when, by intermeddling with the legislature 
 of the people, or the conventions of the people, 
 they shall touch and rouse the heart, and muscle, 
 and bone, of the masses of the people to come to 
 the rescue of the people s legislatures and the peo 
 ple s conventions against corporations. "Woe to 
 them, when they bring that day upon their heads, 
 and that day they are bringing. 
 
 One other point I will allude to. I must go by 
 points or I shall not get through. That is this : 
 I have heard it said by distinguished gentlemen 
 here to-day, and heretofore, that the State credit 
 is to be claimed, is now claimed, and I know it 
 has been claimed from other quarters, independ 
 ent of the specific merits of the specific cases, 
 merely because the State has granted its credit to 
 others ; and every road and every enterprise is in 
 its nature local, and is producing great advantages 
 in a particular locality. The claim comes up ; 
 " You have granted it here, you have granted it 
 there, and you ought to grant it again, because 
 you have granted it so and so before." Now, Sir, 
 every road is local ; every road must lead some 
 where. I will say what was once said by a dis 
 tinguished man in reference to a western road, 
 the Maysville Road no road can lead everywhere, 
 except the road to ruin. I do not recognize the 
 solidity of this argument in favor of the State 
 granting its credit, merely because it has done so 
 before ; for that would lead us into the maelstrom 
 of speculation, and if we came out whole and 
 sound, we should have another cause in addition 
 to the innumerable instances which we now have, 
 of grateful acknowledgment to that superintend 
 ing Providence which is wiser than we, and most 
 wise where we are the least so. 
 
 Now, Sir, in regard to the particular number 
 of two-thirds, amend it as you please make it 
 two-thirds of the House and a majority of the 
 Senate, or the other way, or suppose you adopt 
 anything near two-thirds, anything that shall 
 accomplish this result ; when a case comes up, I 
 wish the attention of the legislature drawn right 
 
 to this point is this an extraordinary exigency ? 
 Is it one that will justify the State in granting 
 its credit ? I want it to serve at the same time as 
 a caution to them and to the petitioners, and to 
 support your legislature and your governor ; for 
 I do believe that every successive legislature and 
 governor that shall ever honor this State and be 
 honored by it and I hold that the State and its 
 officers, thus far in its history, to have mutually 
 honored each other will be thankful for some 
 thing of this kind in your Constitution. Any 
 basis of representation that is likely to be adopted 
 will result in this, that two-thirds of your House 
 may be elected by about one-half of your people ; 
 and that is an idea that is worthy of consideration. 
 This restraint will not, therefore, be like a restraint 
 upon the majority of the people, so far as this is 
 concerned. 
 
 Now, with regard to the effect which this would 
 be likely to have if ingrafted into your amend 
 ments to the Constitution, when you put it to the 
 people for a poptilar vote upon its adoption or re 
 jection, that is a thing that I have not looked at ; 
 but it is a consideration worthy of being looked at. 
 I would not put anything in which I thought 
 would be likely to endanger that which I deem 
 important and valuable ; and I would put no 
 thing in which was not needed to bring the Con 
 stitution nearer to perfection. If, therefore, you 
 think that such a proposition would endanger 
 any of its associates, put it separately, so that the 
 people can say yea or nay upon it, and nothing 
 else ; and if a majority of the Convention shall 
 deem that its being in their amendments at all 
 will endanger the rest, do with it in your wisdom 
 what you please. I have myself but one course, 
 and that is, to consider every effect within my 
 knowledge of the course of action which I am 
 about to take, and to do as well as I can, accord 
 ing to the dictates of my judgment and my con 
 science, and put unbounded confidence in the 
 good and judicious action of the people; in other 
 words, I shall do according to what is termed 
 part of the code of a gentleman, and that is, to 
 consider every man a gentleman until he proves 
 himself to be no gentleman, and treat him accord 
 ingly ; and I shall treat the people accordingly. 
 I will put to them, therefore, what I deem to be 
 best ; and if they do not agree to it, they can reject 
 it, as we have agreed they shall. I have no desire 
 to have one improvement in the Constitution car 
 ried by connecting it indissolubly with another, 
 when it is of a doubtful character ; but I do believe 
 in the expediency of some restriction upon this 
 granting of the State credit. 
 
 My friend alluded to the idea that this restric 
 tion was in the nature of a cramp ; yea, and a 
 
24 
 
 LOAN OF STATE CREDIT. 
 
 [58th day. 
 
 Friday,] 
 
 GILES LORD. 
 
 [July 15th. 
 
 cramp upon the industry of the people. But do 
 I go for any such thing ? No, Mr. President. 
 Did I not say to him the other day, lay not the 
 icy hand of death upon the enterprise of the 
 people of this Commonwealth ? This enterprise 
 is instinct with trade, with life, and energy ; and 
 I said then, as I say now support, encourage, 
 cherish, sustain that enterprise, here and every 
 where. But it is with the enterprise of this com 
 munity as it is with the leading and dominant 
 spirit that acts in man and in the nation ; it is 
 not to be cramped, but it is to be guided, and this 
 is the way in which you are to aid it. Let the 
 flood burst from your mountains, and fall into a 
 course where there are no banks; will it not 
 overrun your plains and devastate your fields ? 
 But let it go in such channels as the Maker of the 
 earth has formed for such beneficent streams, and 
 what is the result ? It makes a river, bordered 
 with cities and villages ; it is then a blessing to 
 the country, for it makes it populous, prosperous, 
 productive, and happy. I claim, therefore, that I 
 go with him who goes the farthest in favor of 
 enterprise and credit, energy and industry, and 
 everything that we deem good ; but I claim it to 
 be wise, from past experience and the nature of 
 the case, to impose some restriction upon the 
 granting of the State credit. 
 
 I will say to my friend from Lenox, who 
 doubts the constitutionality of any grant, that the 
 Constitution says that the legislature shall have 
 power to enact all wholesome and reasonable 
 laws, and to take private property for public 
 uses. There is the foundation of this policy, and 
 there let it be. It has worked well, and it will 
 work well; but when you come to grant the 
 State credit, which is my credit, and your credit, 
 and his credit, and every man s special and private 
 credit, as well as the associated credit of the whole, 
 then let it be done wisely. Let the instance be 
 such as to commend itself to more than a bare 
 majority, under all the influences which I do not 
 deprecate, but which I expect will be brought to 
 bear upon the legislative body in that particular 
 case ; and if the case be a good one, it can com 
 mand more than a bare majority of the legislature, 
 and it will command the assent of the people. 
 But if it fail, this failure will not destroy its own 
 credit, as a failure under a mere majority might. 
 If it succeeds, it will give you not only the 
 amount in millions, but it will double that 
 amount in the good- will and cooperation of the 
 whole people in your favor. That is what you 
 need that is what I want you to have that is 
 what I design to give you, and that is the object 
 of this resolution, so far as my individual mind 
 enters into it. It is in the power of the Conven 
 
 tion to do with it as seems just and expedient to 
 them, and I shall be content. 
 
 Mr. THOMAS, of Weymouth. Mr. President, 
 this subject has been amply discussed on both 
 sides ; every member of this body has probably 
 made up his mind upon the subject, and I there 
 fore move the previous question. 
 
 The motion was agreed to. 
 
 The question being then taken on reconsidering 
 the vote by which the resolution was ordered to 
 be read a second time, on a division there were 
 ayes, 189 ; noes, 87 so it was agreed to. 
 
 The question then recurred, on ordering the 
 resolve to a second reading, as amended. 
 
 Mr. FREEMAN, of Franklin, demanded the 
 previous question. 
 
 Mr. E ARLE, of Worcester. I desire to inquire 
 of the Chair, whether, if the main question were 
 not pending, it would not be in order to move for 
 a reconsideration of the vote by which the Con 
 vention adopted the amendment which now 
 stands as the resolve. 
 
 The PRESIDENT. It would be in order. 
 
 Mr. EARLE. I suppose that many gentlemen 
 voted for a reconsideration under the belief that 
 it might be done. 
 
 Mr. LORD, of Salem. I move to amend the 
 resolve by striking out the words " two-thirds," 
 and inserting the words " a majority." The re 
 solve now reads : 
 
 That the legislature shall not have power to 
 grant the credit of the State to any individual or 
 corporation without a two-thirds vote of the 
 House of Representatives and the Senate in its 
 favor. 
 
 I understand the motion to reconsider, is made 
 with the view of striking out the words " two- 
 thirds" and inserting instead the words "a ma 
 jority," and if I understand rightly, the President 
 ruled that amendment out of order. Since that 
 time, I understand that the President has reversed 
 that rule, and now rules that such a motion is in 
 order. I only desire to know whether the Presi 
 dent considers that motion before the Convention, 
 so that if the previous question be voted down, 
 the question will recur on that amendment, or 
 whether the previous question having been called 
 for at a time when the President ruled the motion 
 out of order, that motion will now stand. 
 
 The PRESIDENT. The Chair will state to 
 the gentleman from Salem, the position of the 
 question as it now stands. The resolution is as 
 follows : That the legislature shall not have 
 power to grant the credit of the State to any in 
 dividual or corporation, without a two-thirds 
 vote of the House of Representatives and the 
 
58th day.] LOAN OF STATE CREDIT. 
 
 25 
 
 Friday,] YEAS NAYS. 
 
 [July 15th. 
 
 Senate in its favor. To strike out the words re 
 
 Rogers, John 
 
 Turner, David P. 
 
 ferred to by the gentleman from Salem, and in 
 sert those proposed by the gentleman from Mon- 
 
 Ross, David, S. 
 Royce, James C. 
 Sikes, Chester 
 
 Wallis, Freeland 
 Walker, Samuel 
 Ward, Andrew H. 
 
 son, would make a change in that to which the 
 
 Simmons, Perez 
 
 Waters, Asa H. 
 
 Convention have already agreed, and it is not, 
 
 Simonds, John W. 
 
 Weeks, Cyrus 
 
 therefore, in order at this time. 
 
 Sprague, Melzar 
 
 Wetmore, Thomas 
 
 Mr. GRAY, of Boston. I would ask the 
 
 Stevens, Granville 
 
 Wilbur, Daniel 
 
 Chair if the demand for the previous question 
 prevails, and the main question is ordered, wheth 
 
 Stevens, Joseph L., Jr. 
 Stevenson, J. Thomas 
 Stiles, Gideon 
 
 Wilbur, Joseph 
 Wilkinson, Ezra 
 Williams, Henry 
 
 er that main question will not be the passing to 
 
 Taber, Isaac C. 
 
 Williams, J. B. 
 
 its next stage, of the amendment of my col 
 
 Taft, Arnold 
 
 Wilson, Wfflard 
 
 league ? 
 
 Talbot, Thomas 
 
 Winslow, Levi M. 
 
 The PRESIDENT. That will be the main 
 
 Taylor, Ralph 
 Tilton, Horatio W. 
 
 Wood, Nathaniel 
 Woods, Josiah B. 
 
 question. 
 
 Turner, David 
 
 Wood, Otis 
 
 The call for the previous question was sus 
 
 
 
 tained. 
 
 NAYS. 
 
 Mr. CROWNINSHIELD, of Boston, moved, 
 that when the vote be taken, it be taken by yeas 
 
 Abbott, Josiah G. 
 Adams, Benjamin P. 
 
 Cooledge, Henry F. 
 Cressy, Oliver S. 
 
 and nays. 
 
 Allen, Charles 
 
 Critteiicleii, Simeon 
 
 The motion was agreed to, and the yeas and 
 
 Allen, James B. 
 
 Cross, Joseph W. 
 
 nays being taken, resulted yeas, 112 ; nays, 199 
 as loJlows .^~* 
 
 Allen, Joel C. 
 Alley, John B. 
 
 Cummings, Joseph 
 Cushman, Henry W. 
 
 
 Allis, Josiah 
 
 Cushman, Thomas 
 
 
 Alvord, D. W. 
 
 Dana, Richard H., Jr. 
 
 YEAS. 
 
 Andrews, Robert 
 
 Davis, Charles G. 
 
 Aldrich, P. Emory Hapgood, Seth 
 
 Aspinwall, William 
 
 Day, Gilmaii 
 
 Appleton, William Haskell, George 
 
 Atwood, David C. 
 
 Dean, Silas 
 
 Austin, George Hathaway, Elnathan P. 
 
 Ayres, Samuel 
 
 Denison, Hiram S. 
 
 Barrows, Joseph Hayward, George 
 
 Baker, Hillel 
 
 Duncan, Samuel 
 
 Beach, Erasmus D. Heard, Charles 
 
 Ballard, Alvah 
 
 Durgiii, John M. 
 
 Beal, John Hersey, Henry 
 
 Ball, George S. 
 
 Eames, Philip 
 
 Bliss, Gad O. Hobart, Aaron 
 
 Bancroft, Alpheus 
 
 Easland, Peter 
 
 Boutwell, Sewell Hopkinson, Thomas 
 
 Barrett, Marcus 
 
 Edwards, Elisha 
 
 Bradford, William J. A. Hurlburt, Samuel A. 
 
 Bates, Moses, Jr. 
 
 Edwards, Samuel 
 
 Breed, Hiram N. Jackson, Samuel 
 
 Bell, Luther V. 
 
 Ely, Joseph M. 
 
 Briggs, George N. James, William 
 
 Bennett, William, Jr. 
 
 Eustis, William T. 
 
 Brown, Hiram C. Jenkins, John 
 
 Bennett, Zephaniah 
 
 Far well, A. G. 
 
 Browncll, Frederick Knight, Hiram 
 
 Bigelow, Edward B. 
 
 Fay, Sullivan 
 
 Cady, Henry Knight, Jeiferson 
 
 Bird, Francis W. 
 
 Fellows, James K. 
 
 Carter, Timothy W. Lawton, Job G., Jr. 
 
 Bishop, Henry W. 
 
 Fisk, Lyman 
 
 Case, Isaac Lincoln, Abishai 
 
 Booth, William S. 
 
 Foster, Aaron 
 
 Chapin, Chester W. Littlefield, Tristram 
 
 Boutwell, Gco. S. 
 
 Foster, Abram 
 
 Clark, Henry Lowell, John A. 
 
 Braman, Milton P. 
 
 Fowler, Samuel P. 
 
 Cogswell, Nathaniel Miller, Seth, Jr. 
 
 Brinley, Francis 
 
 Freeman, James M. 
 
 Copeland, Benjamin F. Morey, George 
 
 Bronson, Asa 
 
 French, Charles A. 
 
 Crane, George B. Morton, Elbridge G. 
 
 Brown, Alpheus R. 
 
 French, Rodney 
 
 Crowninshield, F. B. Morton, Marcus 
 
 Brown, Artemas 
 
 French, Samuel 
 
 Davis, Solomon Morton, Marcus, Jr. 
 
 Brown, Hammond 
 
 Gale, Luther 
 
 Deming, Elijah S. Newman, Charles 
 
 Brownell, Joseph 
 
 Gates, Elbridge 
 
 Denton, Augustus Nichols, William 
 
 Bryant, Patrick 
 
 Gilbert, Washington 
 
 Doane, James C. Norton, Alfred 
 
 Bullock, Rufus 
 
 Giles, Charles G. 
 
 Dunham, Bradish Oliver, Henry K. 
 
 Bumpus, Cephas C. 
 
 Gooding, Leonard 
 
 Earle, John M. Orcutt, Nathan 
 
 Burlingame, Anson 
 
 Graves John W. 
 
 Eaton, Lilley Orne, Benjamin S. 
 
 Butler, Benjamin F. 
 
 Green, Jabez 
 
 Ely, Homer Parker, Adolphus G. 
 
 Caruthers, William 
 
 Griswold, Josiah W. 
 
 Fitch, Ezekiel W. Parker, Joel 
 
 Chandler, Amariali 
 
 Griswold, Whiting 
 
 Fowle, Samuel Peabody, George 
 
 Chapin, Henry 
 
 Hadley, Samuel P. 
 
 Gardner Henry J. Peabody, Nathaniel 
 
 Childs, Josiah 
 
 Hall, Charles B. 
 
 Gilbert, Wanton C. Pease, Jeremiah, Jr. 
 
 Churchill, J. McKean 
 
 Hapgood, Lyman W. 
 
 Giles, Joel Perkins, Noah C. 
 
 Clark, Ransom 
 
 Harmon, Pliineas 
 
 Gray, John C. Rantoul, Robert 
 
 Clarke, Alpheus B. 
 
 Haskins, William 
 
 Hale, Artemas Rawson, Silas 
 
 Clarke, Stillman 
 
 Hawkes, Stephen E. 
 
 Hallett, B. F. Reed, Sampson 
 
 Cleverly, William 
 
 Hayden, Isaac 
 
 Hammond, A. B. Rock wood, Joseph M. 
 
 Cook, Charles E. 
 
 Heath, Ezra 2d, 
 
26 LOAN OF STATE CREDIT, &c. [58th day. 
 
 Friday,] NAYS ABSENT. [July 15th. 
 
 Henry, Samuel Perkins, Jesse 
 
 Curtis, Wilber Loud, Samuel P. 
 
 Hewes, James Phelps, Charles 
 
 Cutler, Simeon N. Marvin, Theophilus R. 
 
 Hewes, William H. Phinney, Silvanus B. 
 
 Davis, Ebenezer Mixter, Samuel 
 
 HiUard, George S. Plunkett, William C. 
 
 Davis, Isaac Monroe, James L. 
 
 Hindsdale, William Pomroy, Jeremiah 
 
 Davis, John Morss, Joseph B. 
 
 Holder, Nathaniel Pool, James M. 
 
 Davis, Robert T. Nash, Hiram 
 
 Hood, George Prince, F. O. 
 
 Dawes, Henry L. Nayson, Jonathan 
 
 Hooper Foster Putnam, George 
 
 Dehon, William Nute, Andrew T. 
 
 Howard, Martin Read, James 
 
 DeWitt, Alexander Packer, E. Wing 
 
 Hoyt, Henry K. Rice, David 
 
 Dorman, Moses Paige, James W. 
 
 Hunt, Charles E. Richards, Luther 
 
 Easton, James, 2d Parker, Samuel D. 
 
 Hunt, William Richardson, Nathan 
 
 Eaton, Calvin D. Parsons, Thomas A. 
 
 Huntington, George H. Richardson, Samuel H. 
 
 Fiske, Emery Payson, Thomas *E. 
 
 Hurlbut, Moses C. Sanderson, Amasa 
 
 French, Charles H. Perkins, Jonathan C. 
 
 Ide, Abijnh M., Jr. Sanderson, Chester 
 
 Frothingham, Rich d, Jr. Pierce, Henry 
 
 Jacobs, John Schouler, William 
 
 Gardner, Johnson Powers, Peter 
 
 Jenks, Samuel H. Sheldon, Luther 
 
 Gooch, Daniel W. Preston, Jonathan 
 
 Kellogg, Giles C. Sherril, John 
 
 Gould, Robert Putnam, John A. 
 
 Kendall, Isaac Sleeper, John S. 
 
 Goulding, Dalton Richardson, Daniel 
 
 Kimball, Joseph Souther, John 
 
 Goulding, Jason Ring> Elkanah, Jr. 
 
 Kingman, Joseph Spooner, Samuel W. 
 
 Greene, William B. Rockwell, Julius 
 
 Knight, Joseph Stevens, William 
 
 Greenleaf, Simon Sampson, George R. 
 
 Knowlton, Charles L. Sumner, Charles 
 
 Hale, Nathan Sargent, John 
 
 Knowltoii, J. S. C. Thayer, Willard, 2d 
 
 Heywood, Levi Sherman, Charles 
 
 Knowlton, William H. Thomas, John W. 
 
 Hobart, Henry Smith, Matthew 
 
 Knox, Albert Thompson, Charles 
 
 Hobbs, Edwin Stacy, Eben H. 
 
 Kuhn, George, H. Tilton, Abraham 
 
 Houghton, Samuel Stetson, Caleb 
 
 Ladd, Gardner P. Tower, Ephraim 
 
 Howland, Abraham H. Stevens, Charles G. 
 
 Ladd, John S. Train, Charles R. 
 
 Hubbard, William J. Storrow, Charles S. 
 
 Lawrence, Luther Tyler, William 
 
 Huntington, Asahel Strong, Alfred L. 
 
 Leland, Aldeii Underwood, Orison 
 
 Huntington, Charles P. Stutson, William 
 
 Lincoln, Frederic W., Jr.Upham, Charles W. 
 
 Hyde, Benjamin D. Sumner, Increase 
 
 Livermore, Isaac Viles, Joel 
 
 Johnson, John Swain, Alanson 
 
 Marble, William P. Vinton, George A. 
 
 Kellogg, Martin R. Thayer, Joseph 
 
 Marcy, Laban Walcott, Samuel B. 
 
 Keyes, Edward L. Tilcston, Edmund P. 
 
 Marvin, Abijah P. Walker, Amasa 
 
 Kinsman, Henry W. Tyler, John S. 
 
 Mason, Charles Warner, Marshal 
 
 Langdon, Wilber C. Upton, George B. 
 
 Meader, Reuben Warner, Samuel, Jr. 
 
 Little, Otis Wales, Bradford L. 
 
 Merritt, Simeon Weston, Gershom B. 
 
 Loomis, E. Justin Wallace, Frederick T. 
 
 Moore, James M. Wheeler, William F. 
 
 Lord, Otis P. Wright, Ezekiel 
 
 Morton, William S. White, Benjamin 
 
 Lothrop, Samuel K. 
 
 Noyes, Daniel White, George 
 
 
 Ober, Joseph E. Whitney, Daniel S. 
 
 Absent and not voting, 107. 
 
 Osgood, Charles Whitney, James S. 
 
 
 Paine, Benjamin Wilder, Joel 
 
 So the resolution was not ordered to be read a 
 
 Paine, Henry Wilkins, John H. 
 
 second time. 
 
 Park, John G. Wilson, Henry 
 Parris, Jonathan Wilson, Milo 
 Parsons, Samuel C. Winn, Jonathan B. 
 
 On motion, by Mr. WILSON, of Natick, the 
 Convention then adjourned until three o clock, 
 
 Partridge, John Wood, Charles C. 
 
 P. M. 
 
 Penniman, John Wood, William H. 
 
 
 Perkins, Daniel A. 
 
 
 
 AFTERNOON SESSION. 
 
 ABSENT. 
 
 
 Abbott, Alfred A. Brown, Adolphus F. 
 
 The Convention reassembled at three o clock. 
 
 Adams, Shubael P. Buck, Asahel 
 
 
 Allen, Parsons Bullen, Amos H. 
 
 A Committee Appointed. 
 
 Banks, Nathaniel P., Jr. Chapin, Daniel E. 
 
 
 Bartlett, Russel Choate, Rufus 
 
 The PRESIDENT announced the following 
 
 Bartlett, Sidney Clark, Salah 
 
 gentlemen as constituting the Committee, under 
 
 Bates, Eliakim A. Coggin, Jacob 
 
 the order adopted by the Convention, relative to 
 
 Beebe, James M. Cole, Lansing J. 
 Bigelow, Jacob Cole, Sumner 
 Blagden, George W. Conkey, Ithamar 
 Bliss, Willam C. Crockett, George W. 
 
 legal remedy to representatives of persons deceased 
 by railroad accidents : Messrs. Hallett, for Wil- 
 braham, Stevenson, of Boston, Haskins, of Med- 
 
 Bradbury, Ebenezer Crosby, Leander 
 
 ford, Richardson, of Middletown, and Fowler, of 
 
 Bre-vrster, Osmyu Crowell, Seth 
 
 Danvers. 
 
58th day.] 
 
 HARVARD COLLEGE, &c. 
 
 27 
 
 Friday,] 
 
 MARTIN KNOWLTON. 
 
 [July 15th. 
 
 Vacancies Filled. 
 
 The PRESIDENT appointed Mr. Knowlton, 
 of Worcester, to fill the vacancy in the Commit 
 tee, on Reporting and Printing the Debates and 
 Proceedings of the Convention, occasioned by the 
 death of the Hon. F. R. Gourgas. 
 
 Also, Mr. Bird, of Walpole, to fill the vacancy 
 in the Committee, on the Preservation of the 
 Records. 
 
 Orders of the Day. 
 
 On motion of Mr. BROWN, of Medway, the 
 Convention proceeded to the consideration of the 
 Orders of the Day. 
 
 Reconsideration. 
 
 The first subject on the Orders of the Day, 
 was the motion of Mr. Marvin, of Winchendon, 
 to reconsider the vote by which the Report of 
 the Committee on the Qualification of Voters, 
 was accepted. 
 
 Mr. MARVIN, of Winchendon. I ask the 
 indulgence of the Convention for a few minutes, 
 to explain the design which I had in offering this 
 order. The order, as will be seen, requires that 
 all persons who may attain to the right of voting 
 in the year 1856, shall be able to read the Con 
 stitution of this Commonwealth, printed in the 
 English language ; and, as the object which I 
 had in view in offering it, has been much mis 
 understood, I have desired the privilege of briefly 
 stating what that object was. This is the reason 
 why I made the motion to reconsider. 
 
 From conversations which I have had with va 
 rious gentlemen, I believe that there is very little 
 probability of this order being passed, and I sup 
 pose, probably, the chief reason is, that it is too 
 far in advance of the times. I merely wish to 
 explain it. 
 
 The object, as will be seen, is so to provide in 
 the Constitution, that from and after the year 
 1856, all persons admitted to vote for any officer 
 in the State of Massachusetts, shall be able to 
 read the Constitution of the Commonwealth, in 
 the English language ; because, I think if they 
 can read that, they can read almost anything else. 
 The design is not, as many gentlemen suppose, to 
 restrict the right of suffrage at all ; and the order 
 was submitted to the Committee for the Encour 
 agement of Literature, because the object of it 
 was the promotion of education. It did not, by 
 any means, look to the restriction of the right of 
 suffrage. I will go as far as any gentleman, in 
 extending that right ; but it seems to me, in 
 adopting this order, we put into operation a 
 strong motive to induce every person, and es 
 pecially every man, to learn to read. It would 
 
 not affect any person who has the right to vote 
 at present, nor any one who might become en 
 titled to the right of suffrage previous to that 
 time. All young men, who are eighteen years 
 of age, and upwards, would have three years in 
 which to learn to read ; and, as we have the 
 means of education provided for all who choose 
 to avail themselves of it both children and 
 adults there is no reason why every man in the 
 Commonwealth, in the course of three years, 
 should not be able to read the English language. 
 That was the object I had in view, and it ap 
 peared to me to be an object highly worthy of 
 our attention, if, by any possibility, it could be 
 reached. 
 
 Some few years ago, it was recommended that 
 all persons should be compelled to send their 
 children to school. I suppose, however, that that 
 could not be done. Indeed, I suppose it never 
 would be done at least, I hope not, for I dislike 
 compulsion in this matter ; but if a provision of 
 that kind was made, there would be an induce 
 ment held out to every man to learn to read. 
 
 I will not dwell upon the subject longer, except 
 to say that nothing would contribute more to 
 the honor of Massachusetts, than that every man 
 who was a voter was able to read ; and secondly, 
 that having such a provision in our Constitution, 
 it would make every man who might come to our 
 State from other countries, truly American. I do 
 not mean by this, that we should do anything 
 to prevent foreigners from coming amongst us ; 
 I hope that every foreigner who comes into the 
 country will be welcomed by us with cordiality 
 that they will feel that they are at home here, and 
 that they will learn our customs, and support and 
 honor our institutions. 
 
 Having made this explanation, and understand 
 ing that there is no hope of this order being 
 adopted, I will now move to lay the motion to 
 reconsider on the table. 
 
 The motion was accordingly laid upon the table. 
 
 Harvard College. 
 
 On motion by Mr. KNOWLTON, of Worces 
 ter, the Orders of the Day were laid upon the 
 table, and the Convention resolved itself into 
 
 COMMITTEE OF THE WHOLE, 
 
 On the Report of the Committee on Harvard Col 
 lege, Mr. Morton, of Taunton, in the chair. 
 
 The resolution reported by the Committee, was 
 read, as follows : 
 
 Resolved, That the Constitution ought to be 
 amended by adding to chapter 5, section 1, the 
 following article, to wit : 
 
 The legislature shall forever have full power 
 
28 
 
 HARVARD COLLEGE. 
 
 [58th day. 
 
 Friday,] 
 
 KNOWLTON. 
 
 [July 15th. 
 
 and authority, as may be judged needful for the 
 advancement of learning, to grant any farther 
 powers to, or alter, limit, annul, or restrain, any of 
 the powers now vested in the President and Fel 
 lows of Harvard College : provided, the obliga 
 tion of contracts shall not be impaired ; and shall 
 have the like power and authority over all cor 
 porate franchises hereafter granted for the pur 
 poses of education in this Commonwealth. 
 
 Mr. KNOWLTON, of Worcester. Mr. Chair 
 man. It would have been more agreeable to me, 
 and more just to the cause, if the duty of sustain 
 ing this Report had been assigned to one of larger 
 experience in deliberative assemblies. But trust 
 ing to the forbearance of the Convention, I shall 
 present some of the considerations which seem to 
 me to be pertinent to the subject. My colleagues 
 of the Committee will be able to supply my 
 deficiencies. 
 
 Harvard College, Sir, is not alone a question of 
 to-day ; but in many of its phases it is a question 
 of the past and of the future. It covers a period 
 of more than two centuries of our history ; start 
 ing from a point almost back to that in which the 
 germ of our civilization, now so largely devel 
 oped, was perilled in a bleak winter, upon a des 
 olate coast. The college was, undoubtedly, 
 among the ideas which the colonists brought with 
 them, for its foundation was laid only sixteen 
 years after the landing at Plymouth. Something 
 of history, as well as of legal and moral right, 
 must therefore enter into the discussion of this 
 resolution. 
 
 The rights of the Commonwealth in the col 
 lege, and the power of this Convention to inter 
 fere with its organization, depend largely upon 
 certain facts in history. Those facts must arrange 
 themselves around one or two points : first, who 
 was the founder of the college ; and second, what 
 were the rights of the founder, and were they 
 ever transferred or surrendered ? 
 
 These two questions involve two theories, the 
 practical results of which are wide asunder. 
 
 If John Harvard was the founder of the col 
 lege, by his own will or the will of the govern 
 ment, and his rights as founder were never trans 
 ferred or surrendered, then the power of this 
 Convention to touch the organization of the col 
 lege, may perhaps be questioned. But if, as I 
 believe, the Commonwealth was the founder, and 
 has never parted with its rights as founder, then 
 the whole subject is clearly within the power of 
 this Convention. We may do what we please, 
 and as we please, with the college, provided we 
 do not subvert or contravene the original pur 
 poses of its foundation. 
 
 It does not become me, Mr. Chairman, in this 
 Convention, or elsewhere, to assert what is law 
 
 and what is not law, upon a question of so much 
 importance as this. But I understand, Sir, that 
 our laws and the laws of England are coincident 
 upon this subject; and that the general principle is 
 that the founder of the college be he the king, 
 an individual, or the state is the one who first 
 erects and endows it; and that all subsequent 
 donors stand to it in the relation of benefactors. 
 It matters not how great or how numerous may 
 be their donations ; they cannot dispossess the 
 founder of his rights as such. He may transfer 
 them to another; but he cannot rightfully be 
 deprived of them ; and if he does not part with 
 them, they descend to his heirs or successors. 
 
 What, then, are the rights of the founder ? If 
 he places the property in the hands of trustees, he 
 parts with none of his rights, but may recall the 
 trust. But if he places it in the charge of a 
 corporation, the right of control is then vested in 
 the corporation ; and nothing remains to the 
 founder but the right of visitation ; that is, a sort 
 of judicial authority over the corporation to call 
 the corporators to account for any perversion of 
 the funds, or any divergence of the corporation 
 from the aim originally given it. This great 
 right of visitation exists of necessity. If the 
 founder fails to provide for its exercise, then the 
 law provides it for him. If Harvard, as some 
 assert, was the founder of the college, and failed 
 to provide for a visitor, or if the right was parted 
 with or lost, then the general court is in full pos 
 session of it. But if the Commonwealth was the 
 founder, then the State, having a self- perpetuating 
 existence, retains the right forever unbroken. 
 
 Now, Mr. Chairman, what are the facts which 
 history teaches on this subject ? 
 
 At a session of the general court held in Bos 
 ton in September, 1636, as the record says, " the 
 court voted, for the erecting of a public school or 
 college, at Cambridge, 400, to be paid out of the 
 country treasury." It has been found conven 
 ient, in later times, to deny that this sum was 
 ever paid ; but the denial will avail nothing 
 against the fact of the grant ; and besides, the 
 treasurer of the college, in a recent publication, 
 places this grant of the general court of 1636 at 
 the head of the list of donations to the college. 
 
 In 1637, Nathaniel Eaton was chosen professor 
 of the school, and was charged with the manage 
 ment of the donations, or funds, or " college 
 stock," as the properties of the college were desig 
 nated in those times. 
 
 In the following year, 1638, the Rev. John 
 Harvard, of Charlestown, died, and made by will 
 a donation to the college of 779 in money, and 
 320 volumes of books. The general court, the 
 same year, in gratitude for this princely benefac- 
 
58th day.] 
 
 HARVARD COLLEGE. 
 
 29 
 
 Friday,] 
 
 KNOWLTON. 
 
 [July 15th. 
 
 tion, for such it was in those times, and in the 
 then condition of the infant colony, ordered that 
 the name of Harvard should be given to the 
 college. At that time, there was no corporation 
 in existence. None was then created. It was 
 emphatically the college of the general court. 
 The court had established the rights of the Com 
 monwealth as founder by making the first dona 
 tion. It appointed the first officers. It directed 
 where and how the college should be built. It 
 took John Harvard s donation, and, to perpet 
 uate his memory, it gave the college his name. 
 But nowhere, and at no time, did it decree that 
 he should be held as the founder of the college, 
 or that his heirs or successors should have the 
 ordinary visitatorial powers that attach to the 
 founders of such institutions. On the contrary, 
 four years afterwards, in 1642, the general court 
 proceeded to establish not a corporation but a 
 Board of Overseers, with power to manage the 
 funds, and make all necessary laws for the gov 
 ernment of the college ; and, at the same time, 
 accountable in all things to the general court. 
 
 Such was the character and condition of the 
 college for the first fourteen years of its exist 
 ence from 1636 to 1650 ; and during those four 
 teen years there was no act of the government 
 that declared Harvard the founder of the college, 
 or even indicated an intention of the court to 
 recognize in him, his heirs or successors, the well- 
 established rights of the founder of such an insti 
 tution. It is not to be supposed that there was 
 any accidental omission to make such recognition ; 
 for the colonists, be it remembered, had but re 
 cently left the mother country, where the whole 
 subject of college law was thoroughly understood, 
 and in whose colleges many of them had been 
 educated. 
 
 Harvard himself was a remarkable man. He 
 was an educated clergyman, comparatively afflu 
 ent, as. money was then valued, and yet bestow 
 ing his wealth in the full confidence of one gifted 
 with the power to anticipate the wants of the 
 advancing generations of men, and to foresee the 
 coming glories of the land on which he had 
 scarcely pressed his foot before he went to sleep 
 in its bosom. Yet nowhere, and at no time, did 
 he express a desire to be considered as the founder 
 of the college, or to reserve to his heirs or succes 
 sors the ordinary visitatorial power incident to a 
 founder. 
 
 He came up to the general court with no such 
 petty interrogatory upon his lips as, " What se 
 curity can you give me for my money ? " No, 
 Sir; he participated in the idea common to the 
 colonists, that it was their mission to establish, 
 upon the new continent, a new order of civiliza 
 
 tion, founded upon the Christian doctrine of the 
 equality of all men, in the state as in the church. 
 He recognized, in its full force, the democratic idea 
 of popular sovereignty, and of the capacity of the 
 people to make a perpetual demonstration of the 
 Christian rule that the powers of government are 
 in the people themselves, and not in the institutions 
 of government which they themselves may organ 
 ize. Acting upon this idea, he placed his munificent 
 donation in the hands of the general court, with 
 no injunction, but to TAKE IT USE IT ; in the con 
 cise and explicit language of Puritan legislation, 
 "For the advancement and education of youth in 
 all manner of good literature, arts, and sciences." 
 He did not ask that a self-perpetuating corpora 
 tion should be established, to watch over his do 
 nation; but he trusted to that strong sense of 
 right that pervades the broad bosom of the peo 
 ple, in full assurance that his confidence would 
 never be found misplaced. He no more dis 
 trusted the future than he distrusted the Ruler of 
 the universe. He believed that the living ages, 
 as they should advance in perpetual succession, 
 would be just to the ages gone by ; and, while he 
 had faith in their integrity, he believed in. their 
 right to adapt their institutions to their existing 
 condition. 
 
 I come now, Mr. Chairman, to the considera 
 tion of the second period in the existence of the 
 college that of its charter, in 1650. The gen 
 eral court then gave it form, substance, and exist 
 ence, as a corporate body. Did the general court 
 give it the character of a close corporation ? or 
 was there an essential reservation in the charter ? 
 
 By the charter, the corporation was to consist of 
 seven persons, with power to receive and manage 
 the college funds ; to fill vacancies caused in their 
 body by death or resignation ; to choose college 
 officers or servants; and, generally, to make all 
 necessary rules for the government and conduct 
 of the college. But there was an important res 
 ervation in the charter. The counsel and consent 
 of the board of overseers, as established in 1642, 
 were required, to give force and effect to the acts 
 of the corporation. That board is fully recog 
 nized, but was not established, by the charter. 
 As its name implies, it was not an independent 
 body, but stood around the college to oversee and 
 guard the rights of the Commonwealth in the 
 institution. Neither body alone was the govern 
 ment ; and conjointly their powers were not full 
 powers. The corporation, with the consent of 
 the overseers, had the power to fill vacancies in 
 its body, but it had not the power to create va 
 cancies. It could, by the terms of the charter, 
 choose its officers, and remove them ; but it could 
 not, by the charter, remove one of its fellows, 
 
30 
 
 HARVARD COLLEGE. 
 
 [58th day. 
 
 Friday,] 
 
 KNOWLTON. 
 
 [July 15th. 
 
 that power belonging to the founder in the exer 
 cise of his visitatorial or judicial authority over 
 the college. The visitatorial right, as we have 
 seen, was never in John Harvard, or in any of 
 his heirs or successors. It was originally in the 
 general court, as the founder ; it was not trans 
 ferred or surrendered by the court when it grant 
 ed the charter, in 1650 ; it has never, as I believe, 
 been transferred since that day; and being in 
 the law-making branch of the government, in 
 the outset, it lias continued so through the suc 
 cessive generations of men that have held in their 
 hands the legislative power of the Commonwealth 
 during the two centuries that have passed ; and 
 must, of necessity, continue there through all 
 time, unless specially and explicitly transferred 
 by the people, or their authorized representa 
 tives. 
 
 The charter of the college was subsequently 
 amended in 1657 and in 1672, but was in no way 
 materially changed. Other changes were subse 
 quently made, and with like effect. 
 
 In 1691, the provincial government was estab 
 lished by William and Mary, in place of the col 
 onial government ; and in 1707, the general court 
 confirmed the college in all the rights it had by 
 the charter of 1650. That confirmation was 
 given in these words : 
 
 " And inasmuch as the first foundation and 
 establishment of that house, (Harvard College,) 
 and the government thereof, had its original from 
 an act of the general court, made and passed in the 
 year 1650, which has not been repealed or nulled, 
 the President and Fellows of the said college are 
 directed, from time to time, to regulate themselves 
 according to the rules of the constitution by the 
 said act prescribed, and to exercise the powers 
 and authority thereby granted for the government 
 of that house, and the support thereof." 
 
 Four charters were sent to England, but were 
 disallowed by the crown, because the general 
 court would not surrender its control of the col 
 lege to the royal authority. This was after 
 the colonial charter had been recalled by the 
 crown. 
 
 By the charter of 1650, thus revived and con 
 firmed by the general court in 1707, the college 
 was made not an absolute but a qualified corpo 
 ration. The president and fellows had not then, 
 and have never had, any vested rights which were 
 distinctively their own. All their rights are 
 rights of trust ; and those rights were placed in 
 their hands originally by the general court, as the 
 founder of the college, with the explicit provision 
 that they should hold and manage, for specific 
 purposes, the properties given to the college by 
 the founder, and by its long and brilliant array of 
 
 benefactors, in successive generations, from Harv 
 ard to Bussey, and Lawrence, and Phillips. 
 
 I have said that it was not an absolute corpo 
 ration. The act of 1642 established the board of 
 overseers as the representatives of the general 
 court. In the college charter granted in 1650, 
 the power of the corporation is qualified by an 
 explicit recognition of the board of overseers, in 
 these words : 
 
 "And the said seven persons, or the greater 
 number of them, procuring the presence of the 
 Overseers of the college, and by their counsel and 
 consent shall have power, and are hereby author 
 ized, at any time or times, to elect a new Presi 
 dent, Fellows, or Treasurer, so often, and from 
 time to time, as any of the said persons shall die, 
 or be removed," &c. 
 
 Through the whole original charter, and in its 
 subsequent modifications none of which were 
 material the counsel and consent of the over 
 seers were made essential to render valid the acts 
 of the corporation, with the single exception of 
 receiving and investing of funds, or dealing in 
 real estate for the use and benefit of the college. 
 
 The power of the overseers was not a mere 
 advisory power. Their consent was necessary to 
 most of the acts of the corporation. They had 
 the power to render null the elections and ap 
 pointments of the corporation. They and the 
 corporation had the power to dismiss the officers 
 and servants of the college ; but the two boards, 
 neither separately nor conjointly, had the power 
 to dismiss a member of the corporation. That power 
 was in the general court, as the visitor on in its 
 foundation ; it was exercised by the court, and 
 has never been given up ; and cannot be given 
 up unless the present generation or future gene 
 rations shall be false to the great trusts confided 
 to them by the founders of the Common 
 wealth. 
 
 Whatever power the Commonwealth had over 
 the college by the charter granted in 1650, it has 
 fully and completely at this day. It is true that 
 in the transitions of political power, consequent 
 upon the English Revolution of 1688, the result 
 of which, so far as this Commonwealth was con 
 cerned, was the substitution of the provincial for 
 the colonial government it is true, that the gov 
 ernment was unable, at times, to exercise its rights, 
 through the overseers ; but at no time did it lose 
 those rights ; and to whatever extent it might have 
 been stayed in the execution of them, they were 
 fully revived and confirmed when the crown 
 tacitly gave its assent to the act of the general 
 court, in 1707, which reaffirmed, in all its original 
 force and effect, the college charter of 1650. 
 
 Now, if John Harvard was the founder of 
 
58th day.] 
 
 HARVARD COLLEGE. 
 
 31 
 
 Friday,] 
 
 KNOWLTON. 
 
 [July 15th. 
 
 the college, by his own will, or was made founder 
 by the act of the general court, as I understand 
 the college at this time maintains, then the gen 
 eral court, from that time, had no visitatorial 
 power in the premises ; and, of course, it could 
 exercise no such power. But what was the fact ? 
 By no charter, act, resolve, or decree of the gen 
 eral court, did the court expressly, or impliedly, 
 transfer, surrender, or part with its original visi 
 tatorial or judicial power over the college. In 
 compliment to its first private benefactor, it gave 
 the college the name of Harvard ; and that was 
 all it gave. On the contrary, the court went on 
 in the execution of its duty as founder and visi 
 tor of the college, the same as it would have done 
 if no such man as Harvard had ever existed, or 
 no such fund had ever been given to the college. 
 Contemporaneous construction shows the char 
 acter of the charter. 
 
 The college charter, let it be borne in mind, 
 was granted in 1650. In 1654 four years only 
 after the establishment of the corporation its 
 first president, the learned and pious Henry Dun- 
 ster, resigned his place as president of the college 
 and of the corporation. To whom did he resign ? 
 Not to the corporation, or the overseers, who had 
 the power to iill the vacancy, but to the general 
 court, in a letter addressed, in his own language : 
 " To the worshippful and honored Richard Bel- 
 lingham, Esq., Governor of the Massachusetts 
 Colony, with the rest of the honored Assistants 
 and Deputies in the General Court at Boston, 
 now assembled." 
 
 In the conclusion of his letter, he says : 
 " Therefore I here resign up the place wherein 
 hitherto I have labored with all my heart, (bless 
 ed be the Lord who gave it,) SERVING YOU AND 
 YOURS. And henceforth, (that you in the interim 
 may be provided,) I shall be willing to do the 
 best I can for some weeks or months to continue 
 the work, acting according to the orders pre 
 scribed to us," &c. 
 
 Upon receiving Dunster s resignation, June 
 10th, 1654, the general court passed this order : 
 
 " In answer to a writing presented to this Court 
 by Mr. Henry Dunster, wherein among other 
 things he is pleased to make a resignation of his 
 place as president, this Court doth order : That it 
 shall be LEFT to the care and discretion of the over 
 seers of the college to make provision, in case he 
 persists in his resolution more than one month, and 
 inform the overseers, for some meet person to 
 carry an end that work for the present, and also 
 to act in whatever necessity shall call for until the 
 next sessions of this court, when we shall be bet 
 ter enabled to settle what will be needful in all 
 respects with reference to the college. And that 
 the overseers will be pleased to make return to 
 this court, at that time, of what they shall do 
 
 herein. The Deputies have passed this, and de 
 sire our honored Magistrates consent thereto. 
 
 1654. WILLIAM TOIUIEY, Clerk. 
 
 Consented hereunto by the Magistrates, 
 
 RICHARD BELLINGHAM, Governor." 
 
 In this matter, the overseers did not act from 
 any rights of their own, but under powers ex 
 pressly delegated to them by the general court ; 
 and for their exercise they were required to make 
 a return to the court. This resignation of Dun 
 ster s implied something more than a voluntary 
 retiring from the college. He had fallen under 
 censure for some heretical notions on the subject 
 of baptism ; and therefore the overseers, acting 
 for the court, said to him, that " unless he would 
 give satisfaction, according to the rules of Christ, 
 they must be constrained to furnish the college 
 with another president." That, is he must be 
 dismissed from the presidency, and another ap 
 pointed in his place. 
 
 In the same year in which Dunster resigned 
 the presidency of the college into the hands of the 
 court four years after the charter was granted 
 the general court exercised, in a remarkable 
 manner, its visitatorial power over the college. 
 The records say that the court, " on perusal of 
 the return of the committee appointed to consider 
 of the college business, order that the stock ap 
 pertaining to the college should be committed to 
 the care and trust of the overseers of said college." 
 
 By the law of 1642, the funds were placed in 
 the hands of the overseers ; by the charter, they 
 were taken from the overseers and confided to 
 the corporation ; and then, four years afterwards, 
 as I have shown, the corporation was dispossessed 
 of the funds, which were again placed in the 
 keeping of the overseers. A member of the cor 
 poration, writing upon this transaction, nearly a 
 century after ward, said : 
 
 " At first view this may seem an extraordinary 
 act in the court, who, by a solemn grant in the 
 charter of 50, had vested the property of that 
 stock in the said corporation. But there is really 
 nothing extraordinary in this act ; for, as visitors 
 of their own college, the court had the right at 
 all times, to see that this stock was well taken 
 care of." " This was an act that, in common 
 law, the visitors of a college had a right to do." 
 
 Twenty years afterwards, in 1674, the general 
 court again exercised its visitatorial right over the 
 college. The president, the corporation, the over 
 seers, and the students, were summoned before 
 the court ; and, after an examination into the con 
 dition of the college, the court voted : 
 
 " That if the college be found in the same Ian- 
 guishing condition at the next session, the presi- 
 
HARVARD COLLEGE. 
 
 [58th day. 
 
 Friday,] 
 
 KNOWLTON. 
 
 [July loth. 
 
 dent is concluded to be dismissed without farther 
 hearing." 
 
 In 1G93, Increase Mather was president of the 
 college. He was a man of ability and learning, 
 but exceedingly ambitious to figure in politics, as 
 well as in religion and literature. He not only 
 chose to retain his place as pastor of the North 
 Church in Boston, but he even left both his 
 church and the college, to go on a political mis 
 sion to England. In view of his course, the 
 general court voted, that "the president of Har 
 vard College, for the time being, shall reside there, 
 as hath been the custom in times past ;" and five 
 years afterwards the court found it necessary to 
 declare again, that " the president should reside 
 at Cambridge." But president Mather, still dis 
 regarding the wishes of the government, the gen 
 eral court, in 1701, dismissed him from the presi 
 dency, and placed the college in the charge of vice- 
 president Willard; and in 1707, Willard having 
 deceased, John Leverett was chosen to fill the 
 place, and the general court, accepting and ap 
 proving of the appointment, voted to pay him a 
 salary of 150 from the public treasury, "for his 
 encouragement and support during his continu 
 ance in said office, he residing at Cambridge, and 
 discharging the proper duties to a president be 
 longing, and entirely devote himself to that ser 
 vice." 
 
 In 1742, Nathan Prince, who had been a mem 
 ber of the corporation for fourteen years, was 
 dismissed by a vote of the Board of Overseers. 
 He was a vigorous and earnest writer, and 
 although guilty of some dereliction in those rigor 
 ous times, he was not disqualified to bear witness 
 to future times against an act of usurpation on the 
 part of the overseers. In his appeal to the public, 
 he said : 
 
 " The next, and the only other dismission of a 
 member of said corporation, was on February last, 
 1741-2; without any power from the court, or 
 any act of said corporation for the same, but by 
 the sole and sovereign authority of the overseers 
 of the college ; who, having no plain law for it, 
 nor from times immemorial any instance of such 
 a thing on their side, seemed now resolved to 
 make one, that so they might plead in future 
 times. Precedents against law are dangerous 
 things ; especially if they rise so high as to turn 
 out members of corporations. Such a thing done 
 in England would cause an insurrection ; and if 
 this power does not belong to the corporation and 
 overseers of said college by law, the overseers of 
 said college, by such an act, have assumed to 
 themselves the powers of the general court, viz. : 
 those powers, which in President Dunster s case 
 were not the powers of the overseers, but were 
 delegated to them from the court, and so icere the 
 powers of that court. Nothing, therefore, can de 
 
 mand a more critical examination than such pre 
 cedents ; and that at their first beginning, before 
 they acquire the force of laws, and in future times 
 will be pleaded as laic, against the rights of the 
 general court itself" 
 
 The whole drift of Prince s appeal, was to the 
 effect that the power of removing a fellow of the 
 corporation, was not given by the charter to the 
 college government, but, in his own words, " that 
 the court had reserved it to themselves ; " thus 
 bearing his own testimony, in the most emphatic 
 manner, to the visitatorial right and power of the 
 general court as the founder of the college. 
 
 The general court, in all the times of the colony 
 and province, showed its zeal in maintaining the 
 foundation it had established, by paying, for a 
 long period of time, the salary of the president of 
 the college out of the country treasury ; by nu 
 merous payments to professors in the college ; by 
 grants of land ; and by donations of 1,500 in 
 1718, for the erection of Massachusetts HaU ; of 
 1,000 in 1726, for the president s house; of 
 2,500 in 1762, for Hollis Hall; and of 4,100 
 in 1764, 1765, and 1766, for rebuilding Harvard 
 Hall ; amounting in the aggregate, down to 1786, 
 as stated by the treasurer of the college, to over 
 $91,000. And he says that in those early days 
 money had a value six or seven times greater than 
 its value in later times. 
 
 But the Commonwealth s bounty to the college 
 did not stop with grants of money. In 1640, it 
 gave the college the ferry across Charles river. 
 How much income it afforded, I have not the 
 means of knowing. But in 1785, after the charter 
 of the Charles liiver Bridge Company, the general 
 court provided for an annual payment of 200 a 
 year by that company for the benefit of the col 
 lege; and subsequently, for 100 a year each, 
 from two other bridges across the same stream. 
 
 In the consideration of this subject, Mr. Chair 
 man, I come now to the third period in the exist 
 ence of the college ; and that is under the Consti 
 tution of the Commonwealth, as established in 
 1780, and revised by the Convention of 1820. 
 
 The college had existed in name, though not in 
 law, as a college, from 1636 to the time of its 
 charter in 1650. It then became both in law and 
 in fact a college. The board of overseers, as I 
 have already said, was recognized by the charter, 
 and made a component part of the government. 
 An appendix to the charter was given in 1657. 
 Another modification was made in 1672 ; and the 
 whole was confirmed by the general court in 
 1707. 
 
 These were all the laws that were in force 
 touching the college, when the Convention of 
 1780 assembled. Such was the understanding of 
 
58th day.] 
 
 HARVARD COLLEGE. 
 
 33 
 
 Friday, 
 
 KNOWLTON. 
 
 [July 15th. 
 
 that body, and such is the voice of history upon 
 the subject. 
 
 In forming the Constitution, the Convention 
 proceeded to secure the rights of the corporation, 
 and the rights of the people as the founder, so 
 that they should be transmitted unimpaired, to 
 future times. The result of its action was the 
 fifth chapter of the Constitution, which was ap 
 proved and adopted by the people. 
 
 The chapter is divided into three sections. The 
 first declares : 
 
 " That the president and fellows of Harvard 
 College, in their corporate capacity, their officers 
 and servants, shall have, hold, use, exercise, and 
 enjoy all the powers, authorities, rights, liberties, 
 privileges, immunities, and franchises, which 
 they now have, or are entitled to have, hold, use, 
 exercise, and enjoy ; and the same are hereby 
 ratified and confirmed unto them, and to their 
 successors, and to their officers and servants 
 respectively forever." 
 
 The second section confirms to the college all 
 the gifts, grants, devises, legacies, and convey 
 ances, made to the college, to be held and used in 
 conformity to the will of the donors. 
 
 The third section provides for the perpetuity of 
 the board of overseers, closing with this proviso : 
 
 " Provided, that nothing herein shall be con 
 strued to prevent the legislature of this Common 
 wealth from making such alterations in the gov 
 ernment of the said University as shall be condu 
 cive to its advantage and the interest of the 
 republic of letters, in as full a manner as might 
 have been done by the legislature of the late 
 province of the Massachusetts Bay." 
 
 This proviso refers not to the corporation alone, 
 or the overseers alone, for neither of them in their 
 separate capacity constitutes the government of the 
 college. The form of expression is such that it 
 must embrace both boards, or it would be without 
 sense and meaning. Of course, under the consti 
 tution, the legislature of to-day has the same 
 powers of legislation which were had by the 
 general court previous to 1780 ; and what that 
 power was we have seen in the whole history of 
 legislation during the times of the colony and the 
 province. The court claimed and exercised its 
 rights of visitation, as founder, in as full and per 
 fect a manner as it would be possible for it to claim 
 and exercise any right pertaining to the functions 
 of government. To deny this, is to deny the 
 whole history of the Commonwealth. It is to 
 deny that the college was built, located, and 
 named by the general court. It is to deny that 
 the court watched over it by day and guarded it 
 by night, and sustained it as a parent sustains a 
 
 3 3 
 
 child, in all its trials and perils, from its infancy, 
 when Cambridge itself was but a wilderness, up 
 to its strong and vigorous manhood. Without 
 this visitatorial guardianship of the Commonwealth 
 over the college, its light would have gone out, 
 its funds would have been dissipated, its charter 
 would have been a dead letter, and the donations 
 of Harvard, and other generous benefactors, 
 would have been lost forever ; and there would 
 have been no broad foundation on which to pile 
 up the splendid legacies of later days. 
 
 With all deference, Mr. Chairman, to the 
 opinions of gentlemen learned in the law, I am 
 unable to believe that this is a case beyond the 
 reach of ordinary comprehension ; or that it is 
 involved in intricacies and mysteries which com 
 mon sense cannot fathom. The corporation itself, 
 in its memorial two years ago, told the legislature 
 that : 
 
 " There is no doubt that the founder of a charity 
 has the right in its creation to prescribe the terms 
 and tenure upon which it shall be held, and the stat 
 utes by which it shall be governed, and to reserve 
 the power of altering them from time to time ; as 
 also general legislative and judicial axithority over 
 the trustees, with power of removal and substitu 
 tion ; provided that such terms, tenure, and reser 
 vations, be not repugnant to the general law. Nor 
 can it be doubted that, if the grant be general in 
 its terms, for the purposes of the charity, without 
 prescribing any terms upon which it shall be held 
 and managed, such general legislative and judicial 
 po^cer will remain in the founder, to be exercised at 
 his pleasure ; nor that, if the whole tenure and 
 government are not granted to the trustees or 
 other persons, the portion not thus parted ivith will 
 remain in him. And any power thus expressly 
 or tacitly reserved in the founder, is called visita 
 torial, and may remain in him, or be at any 
 time granted to other persons ; and it constitutes a 
 valuable estate or property, recognized as such in 
 courts of law and equity." 
 
 This opinion is signed by the chief justice of 
 our supreme court, and by one of the judges of 
 the United States court, and may, therefore, be 
 taken as sound law in the case. This doctrine is 
 not inconsistent with that of Mr. Justice Holt, 
 that if the founder of an institution fails to pro 
 vide a visitor, the law provides one for him. 
 
 But if I understand the memorial, it avoids the 
 conclusion, by the assertion that Harvard College 
 is a close corporation ; and that its franchise is a 
 vested right in the Fellows, which the legislature 
 cannot touch. 
 
 If that be so if John Harvard was the founder 
 of the college, and the right of visitation was in 
 him, his heirs, and successors then Harvard Col 
 lege can be brought into the same category with 
 Dartmouth College ; and the law of the United 
 
34 
 
 HARVARD COLLEGE. 
 
 [58th day. 
 
 Friday, 
 
 KNOWLTON. 
 
 [July 15th. 
 
 States court will apply in the one case as well as 
 in the other. But I find no analogy between 
 them. 
 
 Dr. Wheelock was the founder of Dartmouth 
 College, and retained for himself, his heirs, and 
 successors, a visitatorial right over the foundation. 
 The legislature of New Hampshire intervened, 
 and changed the organization of the corporation. 
 The trustees appealed to the United States court 
 for redress, under that provision of the United 
 States Constitution which declares that " no State 
 shall pass any law impairing the obligation of 
 contracts." The court sustained the appeal, and 
 the legislature was defeated. But whether a con 
 tract was or was not involved in that case, is a 
 question I leave to the logic of the legal profes 
 sion ; as also those other questions, whether the 
 same doctrines were upheld by that court, and if 
 so, how far, in the more recent case of the War 
 ren Bridge ; and also whether, as the supreme 
 court of the United States has been constituted of 
 late years, it is probable that the same doctrines 
 would now be laid down as law which ruled in 
 fihe decision of the Dartmouth case. 
 
 In the Convention of 1820, Mr. Webster ad 
 mitted, in his report, that the college was founded 
 by the Commonwealth. His opinion will, of 
 course, have great weight with a portion, at least, 
 of this Convention. If he was correct in his 
 opinion, then the Commonwealth has a perfect 
 right to modify the organization of the college, 
 whenever the exigencies of the case may require 
 it. Should it do so, upon the theory admitted by 
 Mr. Webster, then there will be no impairing of 
 the obligations of a contract that would make a 
 case that could stand for a moment in the United 
 States court. The exigencies of the case must 
 rule the decision. The court will admit the full 
 rights of the Commonwealth as visitor upon its 
 own foundation ; unless, of which I should en 
 tertain no serious apprehension, it should throw 
 over the case one of those constructive interpre 
 tations of power in the general government, 
 which tend to rob the States of their sovereignty, 
 concentrate all power in the general government, 
 and subvert the liberties of the people. 
 
 If the Commonwealth has all the rights and 
 powers of founder of the college, and there exists 
 an exigency, then the corporation is in the power 
 of the general court, acting under such consti 
 tutional provisions as the people may prescribe ; 
 and there is, and can be, no contract that can be 
 impaired by the action of the people through a 
 Convention, or the general court. In good faith 
 to our forefathers who established the college, and 
 watched over it in its early perils, and fully re 
 cognized it in the Constitution and especially in 
 
 good faith to its early and its later benefactors, who 
 have enriched it with a princely munificence 
 we are under the most sacred of obligations to see 
 that its funds are not perverted from the purposes 
 to which they were dedicated. If a perversion is 
 proved or a failure to give them their full force 
 and effect then the exigency is made out ; as it 
 was in the case of Dunster in 1654, and in the case 
 of the summons to the college to appear before the 
 general court in 1674. In such a case, the plea 
 of a contract cannot avail against the Common 
 wealth. 
 
 But in supposed cases of conflict between the 
 general government and the government of a 
 State, it is important to bear in mind the relative 
 powers of each to the other the theory of civil 
 government among us, and the mode in which 
 power is distributed by our institutions. 
 
 The general government is an organization of 
 delegated power. It has no original sovereignty. 
 It is a creature of the States, which created it 
 by contributions from their own sovereignty, 
 powers and rights. It can act upon such powers 
 only as were expressly delegated to it by the 
 States ; and the powers which it may exercise are 
 plainly and specifically defined and set forth in 
 its constitution, as well as the powers which it is 
 forbidden to exercise. With the single exception 
 of the powers thus delegated, every State is sover 
 eign of itself, up to the full measure of its reserved 
 powers, rights and privileges ; and can be held ac 
 countable in no manner to the general government, 
 except for an invasion of the powers it expressly 
 delegated to that government when it became a 
 party to the compact between the States of the 
 Union. When, therefore, there is no collision 
 between a State and the general government, and 
 no question in dispute in the nature of a contract 
 to be impaired, the Commonwealth cannot be 
 called to account in the courts of the United 
 States for any exercise of its reserved sovereignty 
 and power in or upon its own institutions. Upon 
 these premises, it is my full belief that the gen 
 eral government, acting within the limits of its 
 delegated sovereignty, and without the line of the 
 reserved rights of the States, has no more right 
 to touch the Commonwealth for its action upon 
 Harvard College, than it has for its action upon 
 the State Lunatic Hospital, or the State Reform 
 School. Both of those institutions are corpora 
 tions, substantially of the same nature as the cor 
 poration of Harvard College admitted itself to be, 
 from the period of its organization down to about 
 the commencement of the present century. 
 
 The provision that " no State shall pass any 
 law impairing the obligation of contracts," was 
 originally a compact of amity between the sev- 
 
58th day.] 
 
 HARVARD COLLEGE. 
 
 35 
 
 Friday,] 
 
 KNOWLTON. 
 
 [July 15th. 
 
 eral States, to protect the rights of the citizens of 
 one State from destruction or invasion by the 
 government of another State. 
 
 By the resolution upon your table, Mr. Chair 
 man, it is proposed to affirm in the Constitution 
 the full power of the legislature over Harvard 
 College, as a State institution ; subject, however, 
 to such restrictions as shall forever protect the 
 college in all its legal rights. It is a simple pro 
 position, and needs no labored exposition. It 
 gives to the legislature all the power which the 
 people have over the college. It places it in the 
 Constitution as an express power, where it now 
 exists in the nature of an implied or inferential 
 power ; the extent of which has always to be 
 determined by judicial interpretation. The lan 
 guage of the resolution is almost identical with 
 the charters of the other two colleges in the 
 Commonwealth. The charter of Williams Col 
 lege was granted in 1793 ; and in it the general 
 court expressly provided, in these words : 
 
 "That the legislature may grant any farther 
 powers to, or alter, limit, annul, or restrain, any 
 of the powers vested by this act in the said cor 
 poration, as shall be judged necessary to promote 
 the best interests of the said college." 
 
 This charter was given thirteen years after the 
 adoption of the Constitution of 1780 ; and, (as 
 suggested by a member of the committee,) was 
 in all probability an exposition of the view which 
 was then entertained of the powers of the gener 
 al court, affirmed by the Constitution, as exist 
 ing under the Province Charter. 
 
 Thirty- two years afterwards, in 182-5, the legis 
 lature chartered Amherst College, and placed in 
 its act of incorporation a transcript of the provi 
 sion contained in the charter of Williams College ; 
 with the farther provision, however, that the 
 legislature should forever elect a portion of the 
 trustees of the college. And that is now done. 
 
 One other point, Mr. Chairman, remains to be 
 briefly considered, and that is whether there 
 exists a necessity for the Commonwealth to in 
 tervene, in the exercise of its visitatorial rights 
 and powers, to correct abuses in the organization 
 and operations of the college ; or to give to the 
 institution greater force and effect. 
 
 In the matter of the funds of the college, I 
 make no charges against the corporation. I have 
 none to make. If any are to be made, they 
 must come from some other source. I know 
 nothing of its funds how they have been in 
 vested and applied except in common with the 
 whole community. 1 never entered the doors of 
 the college, and know nothing of its internal 
 order and life. Its own reports, and the records 
 
 of the general court, show that it has been en 
 dowed with a profusion that is almost prodigal. 
 And what is the result ? A less number of 
 students than is found in some colleges more 
 recently established, and charges for education 
 that are onerous to many who avail themselves 
 of its benefits. 
 
 These facts have led to the inquiry whether 
 the college has, or has not, failed to meet the 
 just expectations of the people. Those expecta 
 tions were expressed in the charter. They were 
 not that it should be a select school for the 
 education of classes or cliques in particular theo 
 ries, principles, or tenets, religious or secular 
 but, in the concise language of the charter, " for 
 the advancement and education of youth in all 
 manner of good literature, arts, and sciences." 
 
 What, then, Mr. Chairman, is the relation 
 which the college now holds to the Common 
 wealth ? 
 
 Its corporation is now, and long has been, 
 composed of men who are understood to be of 
 one sect in religion, and of one party in politics. 
 That religious sect does not embrace more th,an 
 one-tenth of the people of the Commonwealth. 
 I do not charge, Sir, that in some of its acts the 
 corporation has shown a culpable insensibility 
 to public opinion ; but I do say, that while the 
 college remains in the hands of a sect or a party, 
 it is outside, over and beyond, the reach of the 
 sympathies, the approval, the cooperation of the 
 mass of the people. 
 
 Its founders and benefactors never designed 
 that it should be a sectarian, a narrow, or an 
 exclusive institution. They, of course, had their 
 peculiar notions in theology and in government ; 
 but they nowhere incorporated them into the 
 constitution of the college, or made provision that 
 they should rule in its administration. 
 
 For one, Mr. Chairman, I propose to make no 
 changes in the original character and purposes of 
 the college. All I propose, is to bring back the 
 college upon its first foundation ; to give greater 
 activity and effect to those means of education 
 that have been so liberally supplied by the Com 
 monwealth, and by the largesses of its long line 
 of private benefactors ; and, by future constitu 
 tional legislation, to place the college in full con 
 tact with the beating pulse of the great heart of 
 the Commonwealth, that the generous sympa 
 thies of the whole people may cluster around it 
 in the present and in all coming time. Ours is 
 a powerful Commonwealth. Its amplitude of 
 means is daily augmenting. The platform of the 
 college is a broad one. Without impairing the 
 efficiency of the institution that now occupies but 
 one of its corners, the Commonwealth can rear 
 
36 
 
 HARVARD COLLEGE. 
 
 [58th day. 
 
 Friday,; 
 
 KNOWLTOX B RAM AX. 
 
 [July 15th. 
 
 upon it an organization such as the progress of 
 society may demand. 
 
 Of course, Mr. Chairman, I have no sympathy 
 with those who cherish errors and abuses because 
 they are old ; and dread the progress of truth be 
 cause its revelations are new ; who regard every 
 change as innovation ; and who hope that the 
 future may be as the present is, or as the past 
 has been. The Committee with whom I have 
 had the honor to act in reporting this resolution, 
 do not even contemplate a subversion of the es 
 tablished order of the college, or a change of its 
 studies or discipline. If there are duties unper 
 formed, all will agree that they should no longer 
 be neglected. If there are drones in the hive, 
 they should be set to work, or driven out. But 
 these are the appropriate duties of an energetic 
 administration of the college, that comprehends 
 its duty, and has the moral courage to do it. 
 
 Harvard College has the means and what it 
 has not it can have to place it beyond the reach 
 of competition from all other American Colleges. 
 Popularized as it should be, and in a land that 
 is progressing with giant strides, it should have 
 its thousands of students where it now has its 
 hundreds. It should be a great centre of good 
 influences the prolific fountain, from which " all 
 manner of good literature, arts, and sciences" 
 should flow out in abundant streams, to enlarge, 
 to invigorate, to refine, the public mind. It 
 should be the head of our system of public in 
 struction : not standing aside, in narrow exclu- 
 siveiiess, to furnish a few individuals for the 
 professions : but educating men, of all classes, 
 for a higher aim in all the pursuits and avoca 
 tions of life especially that great body of pub 
 lic teachers who are hereafter to give tone and 
 direction to the ideas and sentiments of the peo- 
 pie. 
 
 "With these views, thus imperfectly presented, 
 and with the hope that my colleagues of the 
 Committee will supply my deficiences, I ask par 
 don, Mr. Chairman, for the extent to which I 
 have trespassed upon your forbearance. 
 
 Mr. BRAMAN, of Danvers. Being a mem 
 ber of the Committee which made this Report, 
 I ask the indulgence of the Convention for a short 
 time, in order that I may have an opportunity of 
 expressing my views. With some of the views 
 which have just been expressed by the chairman 
 of that Committee, I entirely concur ; but from 
 others of them I as entirely dissent, although, 
 without doubt, those views are conscientiously 
 and honestly entertained. 
 
 I should have preferred to have stricken out of 
 the Constitution all that related to Harvard Col 
 lege ; and failing in that, as the next best thing, 
 
 I would have chosen to have retained the provi 
 sion as it is in our present Constitution, without 
 alteration or addition. 
 
 I have some objection to the present Report. 
 The principal objection I have to it is, that it 
 leaves the relation between the government and 
 the college precisely where it was. It neither 
 confers an additional power on the legislature, nor 
 does it compel them to do anything which they 
 had no power to do, without such a provision. I 
 do not think it wise to make any change in the 
 Constitution, without something is to be effected 
 without some new power is granted to the leg 
 islature, which it did not possess before. 
 
 Another objection which I have is, that it 
 rather invites the legislature to do what I believe 
 it has no power to do ; and if it should undertake 
 to exercise such power, it would be in contraven 
 tion of the Constitution of the United States. 
 The contract to which allusion has been made, is 
 a contract which comes within the meaning of 
 the article of the Constitution of the United States, 
 which provides that no State shall pass any law 
 impairing the obligations of contracts, and they 
 probably would refer to the celebrated Dartmouth 
 College case as an authority. In 1769, the crown 
 of England created a corporation consisting of 
 twelve of the corporators of Dartmouth College, 
 by which the whole management of that institu 
 tion was intrusted. The college continued to 
 flourish under this charter, fulfilling the benevo 
 lent intentions of its founder and benefactors, till 
 in 18 16, the legislature of New Hampshire think 
 ing, as many do now, with respect to the corpo 
 ration of Harvard College, that the institution 
 could be rendered more extensively useful, by 
 putting it immediately under the control of the 
 State proceeded to provide that there should be 
 two new boards created. Nine trustees were 
 added to the original twelve. There was also a 
 board of overseers, consisting of twenty-five, 
 having a negative upon the acts of the corpora 
 tion ; and the members of both of these boards 
 are made elective by the governor and council. 
 The corporation of Dartmouth College resisted the 
 act. They contended that it was an invasion of 
 their chartered rights, and that it was an indirect 
 contravention, both of the Constitutions of New 
 Hampshire, and of the United States. They took the 
 case into the courts of New Hampshire, and then, 
 after the decision of the courts of that State went 
 against them, they appealed to the United States 
 court, and, after an argument, conducted by some 
 of the most eminent legal men of the country, 
 and after an investigation by the court, adorned 
 by the names of a Marshall, and a Story, the de 
 cision of the New Hampshire court was overruled, 
 
58th day.] 
 
 HARVARD COLLEGE. 
 
 37 
 
 Friday,] 
 
 BRAMAN BOUTWELL. 
 
 [July 15th. 
 
 and the corporation was restored to its original 
 condition and privileges. 
 
 Now, I maintain, that the charter of Harvard 
 College is as strong as the charter of Dartmouth 
 College, in its main features ; and having read 
 them both, and carefully compared them together, 
 I put it to any legal gentleman, whether there is 
 any such difference between the corporation of 
 Dartmouth College, and that of Harvard College 
 in 1650, as does not place them both alike under 
 the Constitution of the United States. 
 
 Views have been advanced by the chairman of 
 the Committee, and they are advanced also by 
 other individuals, going to show, that the corpora 
 tion of Harvard College stands on a different 
 footing from that of Dartmouth College, and that 
 it is not within the protection of the Constitution 
 of the United States. I am aware that there are 
 some persons who think that this Convention can 
 exercise a control over this college, which cannot 
 be exercised by the legislature of the Common 
 wealth ; but, Sir, there is no foundation for this 
 idea. The Constitution of the United States has 
 just as much power in a State, acting through a 
 Convention, as it has acting through a legislature, 
 and if any act should be passed by this Conven 
 tion, if anything should be incorporated into that 
 instrument which is in contravention of the United 
 States Constitution, it would be just as quickly 
 overruled as it would if it had been done merely 
 by State authority. I know that there are indi 
 viduals who say that the corporation of Harvard 
 College is a State institution, and they therefore 
 maintain that it is under the control of the State. 
 Now, the phrase " State institution " is a very 
 indefinite phrase too indefinite to be made the 
 foundation of an argument, without it is more 
 precisely defined. "What then is meant by call 
 ing it a State institution ? Does it mean that the 
 State gave it its charter of incorporation? Some 
 acts of incorporation are contracts, and are, there 
 fore, exempted from all legislative interference. 
 They are not under the control of the State, and 
 are beyond all interference on the part of the 
 government of the State. It must be determined 
 that the corporation is without the control of the 
 Constitution of the United States, before it can be 
 assumed that it can be interfered with. The ques 
 tion, therefore, depends upon the nature and the 
 objects of the corporation that is created. The 
 act of incorporation determines nothing, one way 
 or the other ; and if the act of incorporation of 
 Harvard College of 1650, was a contract within 
 the meaning of the Constitution of the United 
 States, then, of course, it is protected by that in 
 strument, and is not otherwise under the power 
 and control of the State, than as its members are 
 
 subject to the laws which apply to all other parts 
 of the community. 
 
 The question then arises, whether a power can 
 be deduced on the part of the State in relation to 
 this institution, in consequence of its being a ben 
 efactor to the State. 
 
 It has, doubtless, conferred many peculiar 
 benefactions upon the government, but it would 
 have been impossible for the college to have pro 
 ceeded, without the assistance of the State. But, 
 was it ever known that the conferring of a gift 
 carried with it the power of control over the per 
 son or body to whom it was made ? When was 
 such a thing ever known ? If the State has con 
 ferred a gift upon the college, it carries with it no 
 control, except so far as the power is deduced from 
 the assumed fact that the State is the founder of the 
 college. The learned chairman of the Committee, 
 (Mr. Kiiowlton,) maintained that the State was the 
 founder. This assertion has been disputed, and I 
 think it remains doubtful to this day, whether the 
 appropriation which the State made to the college 
 was ever applied to the uses for which it was made, 
 before the donation of John Harvard was applied 
 to set the college in operation. 
 
 Mr. BOUTWELL, for Berlin. I wish to ask 
 the gentleman whether the existing Constitution 
 of the State does not declare that our ancestors 
 founded Harvard College in 1636, and whether at 
 the Convention of 1779, the corporation and 
 board of overseers did not both assent to the in 
 sertion of that declaration into the Constitution 
 of the State. 
 
 Mr. BRAMAN. The words "our ancestors," 
 may refer to the State, or they may not. But I will 
 waive the point whether the State founded the 
 college or not, because the mere fact that a person, 
 or state, or government, founded an institution, 
 does not necessarily imply that it has the control 
 of it. The doctrine of the common law upon the 
 subject, is this : that the founder retains the right 
 of visitation over the institution as long as he 
 chooses to do so, but he has the right to part with 
 it at any time. He retains the power as long as 
 he lives, and then, I believe, it descends to his 
 heirs, unless he otherwise makes provision for its 
 disposal. But, I say, he has the power to devolve 
 it upon any other body, and when he has disposed 
 of it, whether to an individual, to a state, or to a 
 board of trustees, the whole power is gone from 
 the founder. Mr. Wheelock founded the institu 
 tion of Dartmouth College, and, as such, had the 
 right of visitation and control. But he chose to 
 part with the power and privilege, and the mo 
 ment he did that, he had no more authority to 
 meddle with the institution, than the Emperor of 
 China has. And, I maintain, that the State can 
 
38 
 
 HARVARD COLLEGE. 
 
 [58th day. 
 
 Friday,] 
 
 BRAMAN. 
 
 [July 15th. 
 
 just as well part with its power over a corporation 
 as an individual can. Cannot the State sell, or 
 convey away property, by gift ? Cannot she also 
 dispose of her corporate franchises ? I believe this 
 doctrine is maintained by all the writers upon 
 common law. So the fact, if admitted, that the 
 State founded Harvard College, does not give it 
 any right of control over the corporation, provided 
 it has parted with its power. And I maintain 
 that it parted with all its power when it gave the 
 charter of 1650. If that act does not convey 
 complete control to that body over the college, 
 then there are no terms which can convey con 
 trol ; and if it is not a contract within the mean 
 ing of the Constitution of the United States, it is 
 not in the power of language to frame a con 
 tract. 
 
 But, it is said, that the Constitution of 1780 
 gave to the State all the power over the college 
 which might have been exercised by the provin 
 cial government. That Constitution says : 
 
 " Provided, that nothing herein shall be con 
 strued to prevent the legislature of this Common 
 wealth from making such alterations in the gov 
 ernment of the said university, as shall be condu 
 cive to its advantage, and the interest of the 
 republic of letters, in as full a manner as might 
 have been done by the legislature of the late 
 province of the Massachusetts Bay." 
 
 Now, I think, by a fair construction, that the 
 language refers only to the board of overseers. 
 But, suppose it extends to the corporation also ; 
 then the question is, what was the power which 
 the provincial government might have exercised 
 over the college ? for it is necessary to determine 
 the amount of the one, in order to ascertain the 
 other. 
 
 I ask, first, what power did the provincial 
 government exercise r It never exercised any. 
 From the first moment that the charter was 
 granted, up to its recstablishment in 1707, there 
 was no act of interference by the legislature, un 
 til the Revolution which severed this country 
 from Great Britain. The college went on during 
 that time, and acted according to the powers 
 conferred upon it by the charter, and as inde 
 pendent of the government as though the gov 
 ernment had not existed. 
 
 But I ask, secondly, was it a power which the 
 government attempted to exercise, by one or more 
 of its departments. It was attempted to be ex 
 ercised, but the attempt failed. In 1722, I be 
 lieve, two members of the academic faculty ap 
 plied for seats in the corporation. The corpora 
 tion rested their defence upon the charter, and 
 maintained that that instrument confined the 
 membership of the corporation to residents of 
 
 the college. This measure originated not merely 
 from a desire of the petitioners to obtain seats 
 upon the board, as a desire to remove some ob 
 noxious members from the corporation. This 
 board resisted, and, at length, an appeal was taken 
 to the general court, and the legislature passed 
 resolves favorable to the views of the petitioners. 
 They were concurred in by the council, but were 
 negatived by the governor. 
 
 It is maintained, by some, that this attempt 
 on the part of the provincial government, shows 
 the views they entertained, respecting the lia 
 bility of the corporation to their control, and 
 determines that the government entertained opin 
 ions in favor of its powers over that body, which, 
 though rightly possessed, failed to be carried into 
 accomplishment from motives of expediency. 
 
 But, let me ask, what was the nature of this 
 power, attempted to be exercised over Harvard 
 College ? It was, to all intents and purposes, a 
 judicial power. It undertook to fix the construc 
 tion of the charter. It undertook to interpret the 
 law, and that law a contract, and to depose some 
 individuals of their franchises, and to admit others 
 in their places. 
 
 Now, it belongs to courts of law, and not to 
 the legislature, to exercise judicial powers. I am 
 aware that there are cases where laws are ambig 
 uous and of doubtful construction, and a legisla 
 ture sometimes passes other laws to remove that 
 ambiguity and doubt ; but such laws are, to all 
 intents and purposes, new laws, and not an at 
 tempt to ascertain the intention of previous leg 
 islatures. 
 
 Now, if this was a judicial exercise of power, 
 it does not belong to our legislature, because the 
 Constitution of the Commonwealth expressly 
 makes a distinction between the powers of the 
 legislature and the powers of the judiciary, and 
 says that the one shall not exercise the functions 
 of the other. Of course, therefore, as it was a 
 judicial act, it does not belong to our legislature 
 or to any other. 
 
 Let me also ask, whether it was a power which 
 might be rightly exercised, according to the views 
 of morality, for doubtless it refers to such a pow 
 er as this, if it refers to any power at all. And 
 what is this power ? It has no right to annul 
 the charter of any corporation, or to impair it to 
 any extent whatsoever. 
 
 " When," declares Judge Story, " a private 
 eleemosynary corporation is thus created by the 
 charter of the crown, it is subject to no other 
 control on the part of the crown, than what is 
 expressly or implicitly reserved by the charter 
 itself. Unless a power be reserved for this pur 
 pose, the crown cannot, in virtue of its preroga- 
 
58th day.] 
 
 HARVARD COLLEGE. 
 
 39 
 
 Friday,] 
 
 BRAMAN KNOWLTON HOOPER. 
 
 [July 15th. 
 
 tive, without the consent of the corportion, alter 
 or amend the charter, or divest the corporation of 
 any of its franchises, or add to, or diminish the 
 number of trustees, or remove any of the mem 
 bers, or change, or control the administration of 
 the charter, or compel the corporation to receive 
 a new charter." 
 
 I helieve Judge Story says, in another place, 
 that the idea that a state cannot interfere with 
 the charter of a corporation, is one of the most 
 stubborn doctrines of the common law. 
 
 This was the contemporaneous construction, in 
 1650, when the charter was given, and again, in 
 1707, when the charter was reestablished : that a 
 power which gave a charter could not resume it, 
 and could not impair any of its first rights what 
 soever. 
 
 I am not forgetful of the fact that the parlia 
 ment of England possesses an omnipotent power ; 
 that it has the power of annulling corporate rights, 
 and of violating contracts. It is so, because there 
 is no authority to restrain the exercise of such 
 power, if it chooses to exercise it. It might annul 
 the charters of both Cambridge and Oxford to 
 morrow, if it saw fit to do so. But it will prob 
 ably not exercise such power, because it would 
 create a sensation which would endanger the sta 
 bility of the government. 
 
 But while it is admitted that parliament pos 
 sesses that power, it is also firmly maintained that 
 it is has no moral right to exercise it. Should it 
 proceed to violate a charter, it would be consid 
 ered as an exercise of tyrannical power, and a 
 flagrant outrage upon all principles of morality. 
 
 In 1783, an attempt was made by parliament 
 to alter the charter of the East India Company. 
 But it met with strenuous opposition, and failed. 
 It was styled, in the petition of the city of Lon 
 don, not only a high and dangerous violation of 
 the charter of the Company, but a total subver 
 sion of all the principles of the law and consti 
 tution of the country. It was called, by Lord 
 Thurlow, a rash, atrocious violation of private 
 property , which cut every Englishman to the bone. 
 And this was said, be it remembered, at a time 
 when it was admitted that parliament had 
 omnipotent power. 
 
 Mr. KXOWLTON, of Worcester. I would 
 ask the gentleman whether the English law places 
 the East India Company upon the same basis as 
 that of literary and charitable institutions ; and 
 whether there does not exist a distinct right as to 
 such institutions, which is not recognized by the 
 law of England in regard to business corporations ? 
 
 Mr. BRAMAN. I think there is a distinction, 
 but it is all in favor of private corporations. 
 They have much less power over such corpora 
 
 tions, than they have over the East India Com 
 pany. 
 
 Now, the provincial government might possibly 
 have possessed and exercised the same power, 
 within its sphere, that parliament had. It will be 
 recollected that the colonial government maintain 
 ed that it had, within its own sphere, powers as 
 transcendent as the parliament of England had 
 within its sphere. But suppose that it had this 
 power, it had no more right to exercise it than 
 the omnipotent parliament had. 
 
 It is a power which does not belong to our 
 legislature, and which is against all authority, all 
 right, and all justice. 
 
 But I have another argument upon this sub 
 ject. The Constitution of 1780 confirmed to 
 Harvard College its privileges and franchises. It 
 is declared 
 
 That the President and Fellows of Harvard 
 College, in their corporate capacity, and their suc 
 cessors in that capacity, their officers and ser 
 vants, shall have, hold, use, exercise and enjoy, 
 all the powers, authorities, rights, liberties, privi 
 leges, immunities and franchises, which they now 
 have, or are entitled to have, hold, use, exercise 
 and enjoy ; and the same are hereby ratified and 
 confirmed unto them, the said president and fel 
 lows of Harvard College, and to their successors, 
 and to their officers and servants, respectively, 
 forever." 
 
 It confirmed all their liberties and all their fran 
 chises. Now, what is a franchise ? Blackstone 
 defines it thus : 
 
 "It is likewise a franchise for a number of 
 persons to be incorporated and subsist as a body 
 politic ; with a power to maintain perpetual suc 
 cession, and do other corporate acts ; and each 
 individual member of such corporation is also 
 said to have a franchise or freedom." 
 
 It seems, then, that when the Constitution con 
 firmed these liberties and franchises of Harvard 
 College, it confirmed franchises which it is not 
 in the power of a legislative body to take away. 
 And it was intended as a protection of the col 
 lege against any such interference. Would it 
 have been wise and consistent for them, after 
 having thrown this shield around the college, to 
 have put another paragraph into the Constitution 
 which should proceed to surrender up the corpo 
 ration to the mercy of the legislature. 
 
 [Here the chairman s hammer fell, the half 
 hour allotted to each member to speak, having 
 expired.] 
 
 Mr. HOOPER, of Fall River, moved that the 
 Committee rise, report progress, and ask leave to 
 sit again, with the view to a temporary suspension 
 
40 
 
 HARVARD COLLEGE. 
 
 [58th day. 
 
 Friday,] 
 
 ALLEN BUTLER HOOPER RANTOUL BRAMAN. 
 
 [July loth. 
 
 of the operation of the order adopted this morn 
 ing, limiting speeches to half an hour. 
 
 The motion was, upon a division ayes, 106 ; 
 noes, 86 agreed to, and 
 
 The Committee accordingly rose, and the Pres 
 ident having resumed the chair of 
 
 THE CONVENTION, 
 
 The chairman of the Committee of the Whole 
 reported progress, and leave was granted to the 
 Committee to sit again. 
 
 Mr. ALLEN, of Worcester, moved a suspen 
 sion of the rule limiting speeches to half an hour, 
 for this day. 
 
 Mr. BUTLER, of Lowell, moved to amend the 
 motion of the gentleman from Worcester, so as 
 to suspend the operation of the rule altogether. 
 
 Let us, said Mr. Butler, either have the rule 
 enforced, or let us abrogate it. 
 
 Mr. HOOPER. My object in moving that the 
 Committee rise, was, that the rule might be so 
 far suspended, as to give to gentlemen on each 
 side of the question, an equal chance of being 
 heard. 
 
 The PRESIDENT. By the rules of the Con 
 vention, the question on suspending the operation 
 of the order, is not debatable. 
 
 Mr. WESTON, of Duxbury, moved that the 
 question on the motion of the gentleman from 
 Worcester, be taken by yeas and nays. The 
 motion did not prevail, and the yeas and nays 
 were not ordered. 
 
 Mr. HOOPER moved to amend the motion of 
 the gentleman from Worcester, so far as to give 
 to the gentleman who was last in possession of 
 the floor in Committee of the Whole, the same 
 length of time to reply, as was allowed to the 
 chairman of the committee on Harvard College, 
 who preceded him, to address the Committee. 
 
 Mr. ALLEN accepted the amendment, as a 
 modification of his motion. 
 
 Mr. BUTLER. Is the motion debatable ? 
 
 The PRESIDENT. It is not debatable. 
 
 Mr. BUTLER. Then I move a reconsideration 
 of the vote by which the order limiting the dura 
 tion of speeches, was adopted. 
 
 The PRESIDENT. The question is on sus 
 pending the rule for a limited time. 
 
 Mr. SCHOULER. Does the Chair decide, 
 that the order adopted this morning is one of the 
 rules of this body, requiring a vote of two-thirds 
 for its suspension ? 
 
 The PRESIDENT. It is a standing order, and 
 will require a vote of two-thirds for its suspension. 
 
 Mr. RANTOUL, of Beverly. It seems to me, 
 Sir, that this is a very simple matter, that it is but 
 a matter of simple justice, to allow the gentleman 
 
 representing the minority of the Committee, the 
 same opportunity to explain the views of the 
 minority, that was accorded to the gentleman who 
 represents the majority of the Committee, to ex 
 plain the views of the majority. I hope, there 
 fore, the rule will be suspended, so far as to allow 
 the gentleman from Danvers an opportunity to 
 conclude his remarks. 
 
 The PRESIDENT. The proposition, as modi 
 fied, is that the order adopted this morning be so 
 far suspended, that the gentleman who last ad 
 dressed the Committee of the Whole, be permit 
 ted to conclude his remarks. 
 
 The motion, as modified, was agreed to. 
 
 On motion of Mr. BRIGGS, of Pittsfield, the 
 Convention again resolved into 
 
 COMMITTEE OF THE WHOLE, 
 
 Mr. Sumner, for Marshfield, in the chair, and 
 resumed the consideration of the Report of the 
 Committee on the subject of 
 
 Harvard College. 
 
 Mr. BRAMAN. I am very sorry to have been 
 the occasion of so much inconvenience on the 
 part of the Convention ; I began to wish I had 
 continued to preserve the silence which I had 
 hitherto preserved in the Convention, for I per 
 ceive that I am likely to acquire a good deal more 
 notoriety than fame. 
 
 When I was cut off in my remarks by the fall 
 ing of the hammer, I was proceeding to contro 
 vert the remark, that the legislature exercised, or 
 might exercise, the power of government over 
 Harvard College. Now, Sir, they never exercised 
 any power over that institution, and they never 
 attempted to exercise any power over it, except 
 that of a judicial character. 
 
 Hamilton, in the Federalist, says : " The legis 
 lative department is everywhere extending the 
 sphere of its activity, and drawing all power into 
 its impetuous vortex." 
 
 Now, Sir, what is the use of applying any gov 
 erning power to these institutions, except to re 
 strain abuses ? It was competent for the legisla 
 ture to make any provision, almost, in relation to 
 that college, because there was no power to cir 
 cumscribe its action. They had no power to set 
 the action of a legislative body aside, if its inter 
 ferences with the corporation of Harvard College 
 had been ever so numerous. Yet, it would be 
 just as unreasonable to attempt to justify the leg 
 islature in its acts of interference with that cor 
 poration, as it would to justify the English govern 
 ment in its acts of oppression to its subjects at 
 home and its subjects abroad. It would be just 
 as absurd in one case as in the other. How 
 
58th day.] 
 
 HARVARD COLLEGE. 
 
 41 
 
 Friday,] 
 
 BKAMAN KNOWLTON. 
 
 [July 15th. 
 
 many acts of wrong make a right ? If the first 
 interference with the charter of Harvard College 
 was wrong, then any subsequent act of interfer 
 ence was also wrong. 
 
 It may be maintained, that the acquiescence of 
 the corporation in the acts of interference upon 
 the part of the government, were a tacit admission 
 by that corporation, of the right of the legislature 
 to interfere. But gentlemen must remember that 
 Harvard might have acquiesced because it had no 
 power to resist. It might have forborne opposi 
 tion to the interference of the legislature, because 
 its opposition would have been unavailing. It 
 must also be borne in mind that Harvard College 
 was the weaker power, and that it was dependent 
 upon the beneficence of the State for its pecuniary 
 means to carry on its operations. It might nat 
 urally be expected, that, although they would 
 regard the interference upon the part of the legis 
 lature as improper, yet that they would succumb 
 to an interference upon the part of the State, to a 
 greater or less extent, because the two parties 
 were united together in a contract one strong 
 and the other weak, the latter having no power 
 to restrain any exercise of power upon the latter. 
 But to justify acts of this sort would lead to every 
 possible enormity. 
 
 But, to proceed. In 1657, additional powers 
 were conferred upon these corporations. They were 
 authorized to do certain things which they had 
 not before been authorized to do. Among other 
 things, a board of overseers was recognized. 
 They accepted the act very cheerfully, although 
 they well knew that they could not have pre 
 vented its formation if it had been unaccepta 
 ble. I do not know of but one act of resistance 
 upon their part, which was in 1676, when this 
 charter was attempted to be enforced upon them, 
 and they refused it. 
 
 Subsequent to this period, another act was 
 passed, empowering the president and fellows of 
 Harvard College to impose upon delinquent stu 
 dents a fine, not to exceed ten shillings, and 
 stripes, not exceeding ten in number. This act 
 was considered as enlarging the privileges of the 
 corporation most essentially, because it suited the 
 stern and rigid temper of the men of those times. 
 It conformed with the habits of those men who had 
 lived under monarchical institutions. This priv 
 ilege was made use of very frequently, and under 
 circumstances of very great solemnity. It would 
 even be inflicted in the chapel, after a sermon, 
 and then the president would proceed to pray 
 that the infliction might be sanctified to the of 
 fender. [Laughter.] 
 
 There was also another interference which has 
 been alluded to, and one which was submitted to, 
 
 certainly not because it was considered a proper 
 interference. When the overseers of the corpo 
 ration, with the instructors and students, were 
 called before the legislature to receive a repri 
 mand. Now this was such an act of interference 
 so flagrant in its nature that I suppose no one 
 would claim it as a precedent for interference upon 
 the part of the legislature. I suppose no one 
 would claim it as a precedent, even if the act 
 had been comparatively reasonable and moderate. 
 Suppose that now, we should summons the pres 
 ident, professors, and students of Harvard Col 
 lege, to appear before us for any such purpose. 
 We might call the spirits, but would the spirits 
 come when they were called? When such a 
 summons shall be given by our legislature, like 
 Cowper, I should " like to be there to see." 
 
 Mr. KNOWLTON, of Worcester, (interpos 
 ing). I desire to ask the gentleman whether, 
 when the corporation, officers, students, &c., of 
 Harvard College were summoned by the general 
 court to appear before them, they did not appear 
 thus acknowledging the right of the general 
 court to make the demand ? 
 
 Mr. BRAMAN. They appeared, but it was 
 not necessarily an act of acquiescence. It was 
 rather an act of submission. It was a submission 
 to a power which they could not resist. They 
 submitted to a power they could not control, be 
 cause they did not dare to do otherwise. But, 
 Sir, I should like to see such an act enforced 
 now. I should like to see the board of over 
 seers, with its distinguished members of church 
 and state, preceded by the president of Harvard 
 College, with his academical gown, closely follow 
 ing in his footsteps the venerable chief justice of 
 the Commonwealth, bearing in his presence the 
 awful majesty of the law. Nay, I would follow 
 the professors and tutors, fresh from their literary 
 and scientific pursuits ; and, bringing up the rear, 
 the whole corps of students, wondering at that 
 mysterious and awful power, before which they 
 with their instructors, were to be brought. Well, 
 Sir, all are marched in solemn procession into this 
 hall, to receive, perhaps, the reprimand of the late 
 speaker of the House of Representatives, or of the 
 president of this Convention. Sir, I should like 
 to see how our worthy president would compose 
 himself to his situation. I would like to see him 
 summon dignity adequate to the occasion. I 
 would like to see whether he would proceed to 
 administer that reprimand with all the self-pos 
 session and grace with which he performs the 
 ordinary duties of the Chair. 
 
 But I presume, as I have said, that with regard 
 to the interference of the legislature in this in 
 stance, no one would quote it as a precedent. 
 
42 
 
 HARVARD COLLEGE. 
 
 [58th day. 
 
 Friday,] 
 
 BRAMAN. 
 
 [July 15th. 
 
 But there was another act of interference upon 
 the part of the legislature, to which I wish again 
 to allude. That was, the attempt to force the 
 charter upon the corporation, in 1672. The cor 
 poration refused to receive it. Now, I wish to 
 say that if the interference by the legislature with 
 the corporation of Harvard College upon this oc 
 casion, was an act of contemporaneous construc 
 tion upon one side, the resistance of the corpora 
 tion to the act of the government, was a contem 
 poraneous construction upon the other. One 
 may very well balance the other, and I let them 
 pass for what they are worth. I have only to say, 
 that these are the only acts of interference under 
 the colonial government. One is so flagrant, that 
 no one would think of quoting it as a precedent, 
 and the other was resisted by the corporation. 
 That is the whole amount of control which the 
 colonial government exercised over the corpora 
 tion of Harvard College. 
 
 Let me ask, what would be gained by the 
 change contemplated by the introduction of the 
 Report of the Committee on Harvard University, 
 and the legislature should proceed to elect mem 
 bers of the board of the corporation of that uni 
 versity, instead of leaving them to perpetuate 
 themselves by election, as now. Would any more 
 able and devoted men be secured to the college, 
 than now compose that corporation ? The mem 
 bers that have always, and do now, compose that 
 board, are some of the ablest men in the commu 
 nity, and their fitness to discharge the high trust 
 reposed in them, has never been disputed. No 
 set of men could be elected by the legislature, that 
 would have more needed wisdom to discharge the 
 high obligations which are imposed upon them, 
 and their fidelity and devotion to the interests of 
 the college also are just as freely acknowledged as 
 is their ability. I believe there has been no com 
 plaint in this respect. I do not suppose that their 
 places could be supplied by persons who would 
 be more untiring in their exertions to discharge 
 the high trusts which are reposed in them. Being 
 possessed of such a character themselves, the 
 board would be more likely to choose persons of 
 similar ability and devotion, to serve under them, 
 and thus we have as good security as the nature of 
 human things and the allotment of humanity ad 
 mits, that there would be perpetuated such a body 
 of men to all future generations, as would satisfy 
 all the reasonable wants and expectations of the 
 community. I suppose if the legislature were to 
 elect the corporation, it would be required that it 
 should embody as good a representation as it 
 could, of the various religious denominations of 
 the Commonwealth. These, it is well known, 
 are very numerous, much more numerous than 
 
 could be exhibited in a corporation consisting of 
 seven members at any one time. Let me mention 
 some of them. There are the Unitarians, natur 
 alists and supernaturalists ; the Congregatioiialists, 
 old and new school, and intermediate schools ; the 
 Baptists, Calvinistic and Free Will ; the Metho 
 dists, Protestant, Episcopal, and Protestant Non- 
 Episcopal ; the Universalists, the Restorationists, 
 and the ultra ; the Roman Catholics, and Quakers, 
 not to mention numerous other sects existing in the 
 Commonwealth, composed of the odds and ends 
 and scraps of all other denominations, going under 
 the fanciful name and delectable appellation of 
 Come- Outers. [Laughter.] All these, of course, 
 would claim some sort of representation in the 
 corporation of Harvard University, because, being 
 a State institution, as contended for by gentlemen 
 here, of course they must have their share in the 
 representation. Suppose all should be arranged 
 in this respect. What should be done in regard 
 to filling up the departments of instruction. 
 These are so numerous that they might exhibit a 
 good specimen of the great variety of the religious 
 sentiment of the State. What shall be done with 
 the Hollis Professorship of Divinity, at Harvard ? 
 How will you divide that ? That is a professor 
 ship that acts more powerfully upon the theolog 
 ical opinions and character of the students, than 
 all of the other professorships put together. What 
 shall be done with that ? Shall there be a coali 
 tion formed in regard to it ? Political coalitions 
 of two or more parties, for the purpose of dividing 
 political offices among them, will answer very 
 well in the State, but how are you to divide the 
 Hollis Professorship of Harvard University ? 
 What is one fish, or one loaf, among so many ? 
 The only practicable method would be to select 
 the professors annually, semi- annually, quarterly, 
 or monthly, and let the students select their 
 opinions according to the assortment which these 
 various professorships would present them. I 
 suppose, also, that gentlemen would require that 
 political sentiments should be represented in the 
 department of instruction, as well as the religious 
 sentiments. Not long ago, a very distinguished 
 candidate for a professorship at Harvard, was 
 rejected by the board of overseers, because he had 
 advanced some obnoxious opinions in regard to 
 the Hungarian Revolution. The gentleman from 
 Natick, (Mr. Wilson,) said the other day that he 
 was not removed for his obnoxious political opin 
 ions, but for his ignorance and incompetency. I 
 think, to charge such a body of men as the corpo 
 ration of Harvard University, with choosing an 
 ignorant and incompetent man to fill one of its 
 departments of instruction, is a very strong asser 
 tion for the gentleman from Natick to make. 
 
58th day.] 
 
 HARVARD COLLEGE. 
 
 43 
 
 Friday," 
 
 BRAMAN WILSON BOTTTWELL. 
 
 [July 15th. 
 
 The gentleman said that he was rejected. He 
 told us in another form, rather, that he was 
 rejected because he made a false statement of the 
 truth. A fact is truth. Put it in another form, 
 and it means an untrue statement of truth. 
 
 Mr. WILSON, of Natick. I wish to explain 
 by saying that I did not mean what the gentleman 
 says. I meant precisely and exactly what I said 
 then, and now repeat, that Francis Bowen was 
 rejected for the office to which he was nominated, 
 for three reasons : in the first place, for his senti 
 ments and opinions ; in the second place, for his 
 ignorance of history ; and in the third place, for 
 mis-stating and mis-quoting history ; the truth of 
 which, I am ready, here or elsewhere, to prove. 
 
 Mr. BRAMAN, of Danvers. The expression 
 which the gentleman used, struck me so forcibly 
 at the time, that I am pretty sure I recollect it. 
 I am quite sure that he said he was rejected for 
 ignorance and incompetency. He says now that he 
 was rejected for ignorance. Then, I repeat again, 
 that it is a strong assertion for the gentleman from 
 Natick to make. Let me say farther, that the 
 members comprising the corporation of Harvard 
 University I mean no disparagement to the gen 
 tleman from Natick, for whom I entertain the 
 highest respect are quite as competent as he is to 
 judge whether a candidate for a professorship at 
 Harvard is an ignorant or incompetent man. 
 Was there ever any historian, or narrator of any 
 portion of history whatsoever, who has not been 
 detected in mistakes ; and I have no doubt that 
 if Hume and Gibbon were alive, and should ad 
 vance opinions obnoxious to the ascendant party 
 in the State, that they would be rejected by the 
 board of overseers if they were nominated by the 
 corporation of Harvard, on account of ignorance 
 and incompetency. I have not the least doubt, if 
 Macauley should be presented as a candidate for 
 a professorship, if it was known that any of his 
 opinions would not agree with those of the domi 
 nant party, that he would be rejected also for his 
 ignorance and incompetency, for the reason that 
 some individuals have criticized his history, and 
 detected mistakes, which they consider as impor 
 tant. All historians commit mistakes, and it 
 cannot be otherwise. They belong to the imper 
 fections of humanity. But, however this may be, 
 there is no doubt that a coincidence of opinion 
 with the dominant party would be considered as 
 an indispensable qualification for a candidate. 
 Men would be chosen to fill departments of in 
 struction, on account of their political opinions, in 
 preference to those who are much more compe 
 tent to fill the offices, because they were of a dif 
 ferent persuasion. The numerous offices of in 
 struction at Harvard, would present an invitation 
 
 to patronage too inviting to be resisted, and vio 
 lent partisans would be rewarded with places of 
 instruction in the university, for whom there was 
 no room in the political department. Stump 
 speakers would teach stump rhetoric from the 
 chair of oratory. There would be professors of 
 logic, whose speeches would be of no other use 
 than to make very excellent specimens of false 
 reasoning. The fair sex, not always having a fair 
 representation at the university, knock at the 
 doors of the Convention for admission. I mean 
 the male portion of the sex. [Laughter.] They 
 have already knocked at the doors of the Con 
 vention, and they have knocked at the doors of 
 the university also. I know that the Convention 
 have treated the application of the fair sex in 
 rather an ungallant manner, notwithstanding the 
 earnest advocacy of Mr. Lucy Stone, and Miss 
 Wendell Phillips, Esq. I should not wonder if, 
 in some future time, and the progress of that po 
 litical perfection about which we hear so much, 
 that the women shall be admitted not only to the 
 right of voting, but also to a share in the public 
 offices of the other sex, and along the line of illus 
 trious names of those who have presided over the 
 university at Harvard, would be the names of 
 Abby, Ann, Lucy ; and then when we shall have 
 a bloomer at the head of the university, it would 
 indeed be entitled to the appellation of alma mater, 
 in more senses than one. [Laughter.] Let me 
 say, in conclusion, that I would caution gentle 
 men very earnestly against doing anything which 
 would commit, or seem to commit, the State to a 
 violation of public faith. The character of Mas 
 sachusetts for integrity and adherence to justice, 
 has always been high. She has now repaid her 
 obligations, and her bonds are confided in now, as 
 the most valued securities in the world. This 
 reputation for integrity ought to be dear to all her 
 sons, who, while they take pride in her industry 
 and enterprise, in her literary and historical abil 
 ity, hold dearer than all, her character for upright 
 ness. Let there be no spot on the fair garment 
 of her renown. Let there be nothing done, or 
 attempted to be done, that shall give our posterity 
 cause for emotions of regret and shame ; and may 
 her name go down to future generations adorned 
 with every virtue which shall cause the heart to 
 swell ; and may the Constitution ever be held in 
 grateful and honored remembrance. 
 
 Mr. BOUTWELL, for Berlin. I shall not 
 detain the Convention so long as to prevent the 
 question being taken before the usual hour for 
 adjournment arrives. This question is within a 
 small compass, and does not, to any considerable 
 extent, involve the early history of the university. 
 We propose, by this resolution, to declare that the 
 
44 
 
 HARVARD COLLEGE. 
 
 [58th day. 
 
 Friday,] 
 
 BOUTWELL BRAMAN. 
 
 [July 15th. 
 
 legislature shall have power to do all that may be 
 done by the people, in reference to Harvard Uni 
 versity, and we claim that the people may do 
 everything within the limit of supreme and com 
 plete sovereignty, except so far as their power is 
 controlled by the Constitution of the United 
 States. That instrument declares, that no State 
 shall pass any " law impairing the obligation of 
 contracts." We propose, by this resolution, em 
 bodied in the Constitution of the State, to author 
 ize the legislature to march boldly up to that line, 
 without, however, authorizing them to go one 
 step farther. 
 
 Now, then, the propriety of the resolution is 
 in this : that there is at present some doubt on 
 the question whether the Constitution of the 
 State authorizes the legislature to go thus far, or 
 not. Therefore, if the people, in their Constitu 
 tion, have imposed any restriction upon the leg 
 islature, we intend hereby to remove it. We do 
 not intend to harm the college in any manner ; 
 but propose to place in the legislature the author 
 ity which now resides in the people. This is a 
 plain proposition. Therefore, it does not involve 
 the consideration of the question, whether the 
 college has rights under a contract, or not. I have 
 an opinion on that point. It differs entirely from 
 the opinion expressed by the gentleman from 
 Daiivers, (Mr. Braman,) and I think that in a 
 word or two, I can state the elements on which 
 an opinion may be formed by any individual. It 
 is a plain principle, that that which a person pro 
 duces or creates, is his own. The State created 
 Harvard College ; the Constitution declares that 
 it was founded in 1636, two years before the be 
 quest of John Harvard. The record is, that our 
 ancestors created it ; the fact that the general 
 court, in 1636, appropriated four hundred pounds 
 for a school or college at Newton, afterwards 
 Cambridge, identifies our ancestors, constitution 
 ally speaking. That is the declaration. The 
 general court created this institution and endowed 
 it. Who shall control it? The general court 
 and their successors, the people and government 
 of Massachusetts, or the corporation of Harvard 
 College ? I take it that what our ancestors, as 
 the government of this State, created, we, the 
 governors of the State to-day, control and use, 
 unless we have surrendered that control. I ask 
 gentlemen to consider this plain proposition of 
 law and of right. For there is no difference, 
 whatever men may suppose who have devoted 
 themselves to the consideration of particular top 
 ics, there is no difference between law, the perfec 
 tion of human reason, and that attribute or rule 
 of right and of justice which the Supreme Crea 
 tor has implanted in the breasts of all. What is 
 
 this rule ? It is, that what we have created we 
 may use, and that that which we have created we 
 may use forever, unless we have surrendered its 
 use into other hands. 
 
 Mr. BRAMAN, of Danvers. The gentleman 
 says, that what a person has created, it is his to 
 control entirely. I would like to ask him, if a 
 person who has created a thing has not a right to 
 part with it by giving it away. 
 
 Mr. BOUTWELL. I will come to that soon. 
 Those who claim that the right of control has 
 been surrendered, stand in the place of grantees, 
 and it is for them to show explicitly, definitely, 
 and accurately, when that surrender was made. 
 I would ask the gentleman from Danvers, to point 
 to the time when, and the manner in which, that 
 surrender was made on the part of the Common 
 wealth. Throughout the whole period of its 
 history, it has never surrendered its right to con 
 trol the college at Cambridge. Trace the records 
 all along through the Colony, the Province, the 
 State, covering a period of more than two hun 
 dred years, and you will find nothing to show 
 that we have surrendered our control. There 
 fore, if we have not surrendered it, it stands to 
 day. And it is not for us to show the negative, 
 but for those who contend that it has been sur 
 rendered, to make that fact appear. They will 
 find that a very difficult point. 
 
 I have a word to say to the gentleman in refer 
 ence to the authorities upon this point, and espe 
 cially in regard to the Dartmouth College case. 
 That case I have not read for some time, yet I think 
 I can state the principle upon w r hich the decision 
 of the supreme court of the United States rested. 
 President Wheelock created an institution in 
 1769, afterwards known as Dartmouth College. 
 In that case the supreme court judged, as we 
 judge to-day, that that which an individual has 
 created, he has a right to control, and inasmuch 
 as President Wheelock had invested that college 
 in his successors forever, there was a contract ; 
 and the State of New Hampshire could not come 
 in and violate it. 
 
 Now, we stand upon the doctrine of a con 
 tract ; and inasmuch as our colonial government 
 established this institution, it is not in the power 
 of any body to come in and say we shall not 
 control it. I do not propose to take anything 
 from Harvard College which they have. If the 
 doctrine of a contract gives them exclusive con 
 trol over that institution, they will have it if we 
 pass this resolution and the people adopt it. But 
 the point of difficulty which we wish to relieve, 
 is this. There may be some doubt as to whether 
 the people, by their Constitution, have conferred 
 the authority upon the legislature to deal with 
 
58th day.] 
 
 HARVARD COLLEGE. 
 
 45 
 
 Friday,] 
 
 BOTH-WELL BRIGGS. 
 
 [July 15th. 
 
 Harvard College, to the extent, and in the man 
 ner, that the people themselves may deal with it. 
 We purpose to remove all difficulty upon that 
 point, by giving to the legislature power to do 
 what the people of the State have the right to do, 
 and nothing more. That is safe, proper, wise, 
 and just. Because, whatever may be said of the 
 character of Harvard College, and I am not here 
 to denounce it, or make any imputation upon it, 
 I know, well enough, that there are men on this 
 floor who have been acquainted with it, and who 
 will not endorse the doctrine of the gentleman 
 from Danvers, by any means, either in public or 
 in private. They will not endorse it, Sir ; and I 
 believe there are those connected with the college 
 to-day, who were as much alarmed two years ago, 
 at the proposition to make the overseers elective 
 by the State, as the gentleman from Danvers is in 
 respect to the corporation, and those same gen 
 tlemen are now satisfied that that was a wise and 
 proper measure. The cause of education has 
 been promoted by it ; and I look to this institu 
 tion, notwithstanding the position which I occupy 
 is somewhat hostile, perhaps, as the apex of the 
 educational system of this Commonwealth. And 
 in order that it may be free from sectarianism, and 
 from the control of any party or sect, we put it 
 on the basis on which our common schools rest. 
 Nor will it happen that all the odds and ends of 
 civilization and society will come in and control 
 this college. Gentlemen know well enough the 
 character of Massachusetts ; the people will reg 
 ulate this institution as they regulate other insti 
 tutions in the State. Gentlemen need not be 
 alarmed. Sir, there will be no coalition in ref 
 erence to the university at Cambridge. And if 
 there were, it would not be a very disastrous thing, 
 by any means. It might happen, that by bringing 
 together in that institution, men of different 
 opinions in the government, in the discipline and 
 education of the young men, that some broader 
 and better ideas of humanity might be acquired. 
 I am, therefore, in favor of the passage of the 
 resolution, not because it interferes with any of the 
 rights of the college, for it does not, but be 
 cause it gives to the legislature that power which 
 we now believe resides in the people; and we 
 trust that it will be exercised for the good of the 
 Commonwealth, and the advancement of learning 
 in the university. 
 
 Mr. BRIGGS, of Pittsfield. I had the honor 
 to be a member of the Committee which reported 
 this resolution, and, though I was not present 
 at the meeting when the resolution, was adopted, 
 I was at a previous one, when, I believe, substan 
 tially the same proposition was agreed to. This 
 is a matter environed with a good many difficul 
 
 ties, if we choose to enter upon the ground where 
 those difficulties exist. But, I believe, it was the 
 opinion of the Committee, and I concur with the 
 gentleman who last spoke, that this resolution 
 would avoid difficulties which would open upon 
 us if we advanced farther, and not do any vio 
 lence or wrong to the corporation of the college, 
 and, at the same time, assert all the rights of the 
 people in respect to it. Sir, my wish with re 
 spect to the Cambridge College, was this : that 
 just so far as the State was concerned, we should 
 cut her adrift ; just sever, in an amicable man 
 ner, all connection with her as a State, and let 
 the college stand as the other colleges do, upon 
 her own foundation, and be left to her own con 
 duct and management. But it was found, and I 
 think any gentleman who will look the matter in 
 the face, will find, that it was somewhat difficult 
 to do this ; certainly the Committee could not 
 see their way clear to do it. They, in their la 
 bors, which were repeated and earnest, came to 
 the result which you find in the Report, and I 
 concur with the gentleman who has just taken 
 his seat, that that leaves the matter substantially 
 where it is now, though, perhaps, under a more 
 clear and distinct declaration ; that is, the resolu 
 tion declares that the legislature shall have the 
 power over this institution, which, by the Con 
 stitution of the United States, it may have. Sir, 
 it has that now, as I apprehend. But this is a 
 clear, plain, distinct declaration to that effect. 
 Now, Sir, what that power is, I do not think we 
 should discuss, and, though the gentleman from 
 Worcester, and the gentleman for Berlin, have 
 stated, learnedly, intelligibly and ably, the sub 
 ject, yet, let me say that this is not the place to 
 discuss a great constitutional question of this 
 kind, and the discussion is not needed. The 
 gentleman for Berlin says, he is very clear in his 
 opinions on this subject, as I understand, that the 
 State has the power and control over this corpo 
 ration. It may be so, and it may not be so. It 
 may not be amiss to say, that our predecessors, 
 something like a generation ago, had this same 
 subject before them, and I think they came to a 
 pretty general, if not a unanimous conclusion, 
 that they had no such power as this. They were 
 good men, wise men, learned men in the law, 
 who spoke and acted on that occasion, and they 
 left the matter as we find it. Now, I think we 
 shall do wisely in doing the same thing ; and I 
 believe, if this resolution is adopted, it does not 
 infringe upon the rights of the college ; and if, 
 hereafter, a legislature shall attempt to exercise 
 the powers which the corporation think they 
 cannot exercise, all that will remain to be done 
 will be, to go into the proper judicial tribunal, 
 
46 
 
 HARVARD COLLEGE. 
 
 [58th day. 
 
 Friday,] 
 
 PARKER BRIGGS BOUTWELL KNOWLTON. 
 
 [July 15th. 
 
 and let them settle it. I hope the resolution will 
 pass in the Committee, and that it will pass in 
 the Convention, and, I think it will meet with 
 the approbation and satisfaction of those, of all 
 denominations and politics, who sent us here. 
 
 Mr. PARKER, of Cambridge. I wish to ask 
 of the gentleman from Pittsfield, and the gen 
 tleman for Berlin, and the chairman of the 
 Committee, one or all of them, whether they 
 understand and I wish the one who does under 
 stand that this makes any difference, would make 
 the answer I wish to ask them, whether, if this 
 resolution passes, and is incorporated into the 
 Constitution, it will give the legislature any more 
 power than it will possess, if no action is taken 
 upon the subject ? 
 
 Mr. BRIGGS. For one, I will answer that 
 I do not think it does. I agree with the gen 
 tleman for Berlin, perhaps, in saying, that if 
 the existing Constitution does not confer as full 
 power upon the legislature as the Constitution of 
 the United States would, then this resolution may 
 confer an additional power. My opinion is, that 
 it does confer no power whatever, and that it 
 does not substantially, if at all, change the rela 
 tion between the State and the college. 
 
 Mr. PARKER. I would ask for the under 
 standing of the gentleman for Berlin, on this 
 question, if he has no objection. 
 
 Mr. BOUTWELL. I understand this resolu 
 tion to confer all the power upon the legislature, 
 which the people of the Commonwealth have, 
 with regard to the institution at Cambridge. The 
 existing Constitution may, or may not, confer all 
 the power which the people of the Commonwealth 
 have. If the gentleman asks what I understand 
 to be the limit of that power, I take it to be this : 
 The power of the people of this Commonwealth 
 is complete and supreme over that institution at 
 Cambridge, except so far as it is limited by that 
 provision of the Constitution of the United States, 
 which says, that no State shall make any " law 
 impairing the obligation of contracts." There 
 fore, if there be any doubt about the power con 
 ferred by the present Constitution, the legisla 
 ture has permission to march up to the line laid 
 down by the Constitution of the United States, 
 and we remove that doubt, by giving them the 
 power. 
 
 Mr. BRIGGS. I understand that all the power 
 which the people have over this subject, is the 
 power which they have asserted in the provision 
 of the Constitution alluded to, reserving to them 
 selves and the legislature all the power that be 
 longed to the provincial legislature over the sub 
 ject. 
 
 Mr. PARKER. The purport of my inquiry, 
 
 was, whether, in the opinion of gentlemen, this 
 resolution made any change. If the gentleman 
 for Berlin has no objections, I ask, if in his 
 opinion, this provision inserted in the Constitu 
 tion, will confer a greater power upon the legisla 
 ture, than they possess at present, and if so, what 
 that power is ? 
 
 Mr. BOUTWELL. I suppose the gentle 
 man from Cambridge asks me for an interpre 
 tation of the Constitution of the State. I am 
 not quite prepared to give that. I say, that in 
 the minds of some gentlemen, there is a doubt, 
 as to whether the people of the Commonwealth 
 have conferred upon the legislature all the power 
 which the people themselves have, and that this 
 resolution is for the purpose of removing that 
 doubt. If the legislature has not got the power 
 now to march boldly up to the line laid down by 
 the Constitution of the United States, we desire 
 to give that power, by the act of the people. 
 
 Mr. PARKER. I asked merely for the per 
 sonal opinion of the gentleman for Berlin, in re 
 lation to the matter, whether this resolution makes 
 any change. I turn to the chairman of the Com 
 mittee, and ask him. 
 
 Mr. KNOWLTON, of Worcester. Not being 
 a professor of law, I do not know that I am 
 qualified to answer that question. 
 
 Mr. PARKER. I do not ask the question as 
 a matter of right, but I would be glad to have the 
 gentleman s opinion. 
 
 Mr. KNOWLTON. I understand the matter 
 as has been stated by my friend, the delegate for 
 Berlin. If there is a power in the hands of the 
 people which is not conferred upon the legislature 
 by the present Constitution, over the institution 
 at Cambridge, we express the opinion, that the 
 legislature has that power, and that they may 
 exercise it. It seems to me, to exist in the Con 
 stitution now, rather as a matter of inference, 
 than of express declaration. If it exists there as 
 a matter of inference, then it is to be determined 
 by judicial authority. But, by the resolution, we 
 propose to express an open and explicit declara 
 tion in the Constitution, that the legislature has 
 that power, and shall exercise it. 
 
 Mr. PARKER. I made the inquiry of gentle 
 men in favor of the passage of this resolution, for 
 the purpose of ascertaining the views which they 
 individually have upon the subject, in order that 
 I might govern my action as a member of this 
 Convention not as a professor of law, Sir, but as 
 a member of this Convention upon the subject 
 matter before the Committee at this time. If this 
 resolution, as put into the form of a constitutional 
 provision, is entirely inoperative and ineffective, 
 giving to the legislature no more power than the 
 
58th day.] 
 
 HARVARD COLLEGE. 
 
 47 
 
 Friday,] 
 
 FRENCH BOUTWELL LOTHROP BRIGOS KNOWLTON. 
 
 [July 15th. 
 
 legislature at present possesses, then all the objec 
 tion which I could possibly have to it would be that 
 it is useless. The opinion that I entertain of it 
 myself, after having examined it with all the care 
 of which I am capable, leads me to just that 
 result, that it is entirely inoperative ; and, there 
 fore, I can raise no other objection to it. But, if it 
 is unnecessary and useless, that is, to my mind, a 
 sufficient reason why we should not adopt it as 
 an amendment to the Constitution. If I am mis 
 taken in this, I desire to know how far I am 
 mistaken ; and for this purpose, I wished to 
 ascertain the individual opinions of gentlemen in 
 relation to the operation of this provision, so as to 
 know, if it is to accomplish something, what it is 
 expected will be accomplished by it, and then I 
 could tell better whether I had any objection to 
 it or not. If it is to accomplish anything, I desire 
 to know what it is to accomplish what power it 
 is to give beyond that which is already given. 
 Until I know that, of course I do not know 
 whether I object to it or not. "With the view 
 which I have of it at present, I have no disposition 
 to detain the Committee with any discussion, 
 farther than to say that my vote will be given 
 against it, because I deem it inoperative and use 
 less. 
 
 Mr. FRENCH, of New Bedford. Mr. Presi 
 dent : I regret, Sir, that any gentleman upon this 
 floor, any member of this Convention, should 
 undertake to hold up to ridicule the lady and 
 gentleman who had the honor of appearing before 
 the Committee on the Qualifications of Voters. 
 Sir, they need no defender in me ; for, if that lady 
 and that gentleman were here, and had an oppor 
 tunity of defending themselves, I run no risk in 
 saying, that no member of this Convention would 
 envy the position of the delegate from Danvers, 
 (Mr. Braman,) who so irreverently attacked 
 them. Sir, there are gentlemen whose position 
 enables them to say what they please in many 
 places, and no reply can be made. It is not so 
 here. Let me say through you to that gentle 
 man, that, although he may slander them and 
 hold them up to ridicule, and attempt to excite 
 the mirth of this body by saying " Mr. Lucy 
 Stone," and " Miss Wendell Phillips " he may 
 do that, Sir, but he is powerless to reproach 
 them. 
 
 The question being then taken on the adoption 
 of the resolution, on a division, there were ayes, 
 125 ; noes, 31 so it was agreed to. 
 
 Mr. BOUTWELL moved, that the Committee 
 rise and report to the Convention that the resolu 
 tion under consideration ought to pass. 
 
 The motion was agreed to. The President 
 having resumed the chair of 
 
 THE CONVENTION, 
 
 The chairman, Mr. Sumiier, for Marshfield, 
 reported accordingly. 
 
 The question was then stated on ordering the 
 resolution to be read a second time. 
 
 Mr. LOTHROP, of Boston, moved to amend 
 the resolution, by inserting after the words " Har 
 vard College" the words, " the Board of Trustees 
 of Williams, and the Board of Trustees of Amherst 
 College." 
 
 Mr. BRIGGS. As I said before, Sir, I was 
 not present when this resolution was drawn, but 
 my impression is, that its language conforms as 
 nearly as possible to the language of the acts of 
 incorporation of those colleges. The gentleman 
 from Worcester can state how that is ; but I un 
 derstood that it was intended to place her upon 
 the same ground as the other colleges, in this 
 respect, reserving any rights of contract. 
 
 Mr. KNOWLTOX, of Worcester. I will read 
 the language of the charters of those colleges, and 
 if gentlemen will turn to the resolution as printed 
 in document No. 72, they will see that the lan 
 guage of the resolve is almost identical with that 
 of these charters: "that the legislature of this 
 Commonwealth may grant any farther powers to, 
 or alter, limit, annul or restrain, any of the powers 
 vested by this act in the said corporation, as shall 
 be judged necessary to promote the best interests 
 of the said college." The Convention will find 
 that, by turning to the law passed in the year 
 1793. 
 
 Mr. LOTHROP. I see no objection to my 
 amendment on that account, but a farther argu 
 ment in favor of it, from the fact that the same 
 language is used in the incorporation of those two 
 institutions. If, as has been understood, and as 
 has been stated here by learned legal authority, 
 and by some of the members of the Committee, 
 this resolution does not confer upon the legisla 
 ture any power over Harvard College but what it 
 now possesses, and if we are to have anything 
 about one college in the Constitution, I would 
 have all colleges put upon precisely the same 
 platform. I would have the recognition of one as 
 distinct as that of the other, and the same power 
 that is now expressed in the acts of incorporation 
 reiterated again in the Constitution, if it is neces 
 sary to reiterate it in relation to Harvard College. 
 If the legislature have all the power now which 
 is given to them by this resolve, in relation to the 
 president and fellows of Harvard College, it is 
 unnecessary to make the statement at all ; if they 
 have not all this power, then I would, in the 
 recognition of that institution in the Constitution, 
 recognize all the others, and place them all upon 
 the same platform. No evil is done, certainly, 
 
48 
 
 HARVARD COLLEGE. 
 
 [5 8 tli day. 
 
 Friday,] 
 
 HOPKINSON BOUTWELL GlLES. 
 
 [July 15th. 
 
 by the introduction of two other colleges ; and we 
 announce the great constitutional fact that all the 
 colleges stand upon the same platform and bear 
 the same relation to the State. 
 
 The PRESIDENT. The Chair will state that 
 the amendment moved by the gentleman from 
 Boston, refers to a subject different from that 
 under consideration ; and therefore, by the rules 
 of the Convention, it is not in order. The subject 
 under consideration, is in relation to Harvard 
 College ; and the proposed amendment relates to 
 other colleges. 
 
 Mr. LOTIIROP. I submit to the ruling of 
 the Chair. 
 
 Mr. HOPKINSON, of Boston. I propose to 
 amend the resolve by striking out the words 
 " advancement of learning," and inserting in lieu 
 thereof, the words " best interests of the college," 
 so that it would read as follows : 
 
 The legislature shall forever have full power 
 and authority, as may be judged needful for the 
 best interests of the college, to grant any farther 
 powers to, or alter, limit, annul, or restrain, any 
 of the powers now vested in the president and 
 fellows of Harvard College : provided^ the ob 
 ligation of contracts shall not be impaired ; and 
 shall have the like pow r er and authority over all 
 corporate franchises hereafter granted for the pur 
 poses of education in this Commonwealth. 
 
 The object of this amendment will be appa 
 rent. It is to carry out precisely the intention 
 expressed by gentlemen here upon this floor, who 
 tell us that the resolve under consideration is to 
 put Harvard College upon the same footing with 
 the other colleges ; and I find that in regard to 
 Amherst College, the language is precisely that 
 which I have incorporated into the amendment. 
 The extract from the law which has been read by 
 the gentleman from Worcester, says, such powers 
 " as shall be judged necessary to promote the best 
 interests of the said college." I have used the 
 words "the college," omitting the word " said." 
 I do not propose to make an argument upon this 
 point, but I do propose to say, that if the inten 
 tion is to put them all upon the same footing, and 
 if the only reason why such an amendment as 
 was proposed by my colleague who sits opposite, 
 (Mr. Lothr op,) should not be adopted, is, that it is 
 unnecessary, inasmuch as the language used was 
 intended to be the same as the language of the 
 other charters, then it is well enough to conform 
 to that language. Now, Sir, it may be asked, 
 perhaps, whether there is any substantial differ 
 ence ; but it has been thought a sufficient answer 
 to that question, to say that there may be a differ 
 ence. For that reason, it was deemed proper to 
 adopt a provision in the Constitution which it 
 
 seems is generally understood to leave the 
 college precisely where it is, but which some 
 gentlemen think may make some change, but 
 what change they are now unprepared to state. 
 I do conceive that there may be difference, and 
 that difference consists in this : the legislature, in 
 order to carry out the Constitution practically, 
 must act in reasonable conformity to the design 
 of the power which is granted in the Constitu 
 tion ; and there might be legislation very diverse 
 from " the interests of the college " covered up by 
 some general idea of promoting the " advance 
 ment of learning " in a general sense ; legislation 
 which would not be for the interests of the col 
 lege, and so palpably so that the court would feel 
 bound to set it aside. It appears to me, that if 
 the intention is to put all the colleges upon the 
 same platform, it is expedient and proper to adopt 
 this amendment. 
 
 Mr. BOUTWELL. I suppose the proper in 
 terests of a college are to promote learning, so 
 that we propose to come to the result directly, by 
 saying, that the legislature shall have power to 
 make all such rules as may be necessary to promote 
 the interests of learning. It might happen, I 
 do not think it would happen, but it might hap 
 pen, that in the judgment of some people, the 
 interests of a particular college would be some 
 what different from the interests of learning ; and 
 for that reason, I do not want to leave that ques 
 tion open. All that we want of a college, is to 
 promote the interests of learning, and, for that 
 reason, we desire to say in our Constitution just 
 what we mean ; so that if, in the judgment of 
 anybody, the interests of a college should happen 
 to differ from the interests of learning, they could 
 not have an opportunity to put that construction 
 upon the provision. 
 
 Mr. GILES. I think that my colleague who 
 presented this amendment, upon a full examina 
 tion of the subject, and reflection, would deem 
 it unnecessary. He would be satisfied that the 
 same object is already attained ; for, as I under 
 stand it, the very amendments which he now pro 
 poses to put in, were left out because they were 
 already in the Constitution, in relation to Har 
 vard College. In the proviso of the present Con 
 stitution, which was referred to your Committee, 
 you have provided that " nothing herein shall 
 be construed to prevent the legislature of this 
 Commonwealth from making such alterations in 
 the government of the said university as shall be 
 conducive to its advantage and the interest of 
 the republic of letters." That stands now, and 
 is to stand. 
 
 The Constitution makes it the special duty of 
 the legislature to cherish that university, and in- 
 
59th day.] 
 
 HARVARD COLLEGE, &c. 
 
 49 
 
 Saturday,] 
 
 GILES HOPKINSON FRENCH CRESSY KNOWLTON. 
 
 [July 16th. 
 
 deed to cherish all our institutions of learning of 
 every kind. In looking through the previous 
 charters of Harvard College, my friend will find 
 the expression, " for the advancement of learn 
 ing," a good Baconian phrase, " invented," if you 
 choose, by Bacon, and immortalized by the work 
 bearing that name, or upon that subject, which 
 has made his fame as high, as solid, and as im 
 movable as Mont Blanc, or Mount Atlas, or any 
 other mountain whose summit glistens in the sun 
 light shed upon its everlasting snows. It is a 
 good phrase, and I would not strike it out. It 
 directs the legislature directly, and at once, to the 
 point mentioned by my friend for Berlin, (Mr. 
 Boutwell,) that is, "for the advancement of 
 learning." We do not wish to cherish Harvard 
 College, or any other institution of the kind, for 
 any other purpose. That is the polar star of its 
 destiny. I believe, therefore, that the acts of future 
 legislatures, as referring to this institution, will 
 not only have to be "for the advancement of 
 learning," but for the benefit of that university, 
 as far as that university exists for the benefit of 
 learning ; and I understand that to be its object 
 meaning by " learning," of course, the broad, 
 catholic sense which was given to it by our fore 
 fathers, which included divinity first, then law, and 
 the classics, and mathematics, and Hebrew, and 
 all good learning, which is summed up in the fifth 
 chapter of the Constitution, in language which is 
 not exceeded by any sentence that ever was con 
 structed in the English tongue. That paragraph 
 alone has brought more honor to Massachusetts, 
 where it has been seen and understood, than all 
 the blue books that any legislature, or succession 
 of legislatures, have made in ten years, not to 
 disparage the legislature, but to exalt it. It is a 
 monument of the wisdom, and of the purity of 
 language, and of the eloquence of expression, 
 used by our forefathers. I hope, therefore, that 
 my friend from Boston will not move to strike out 
 this expression. I really think that the resolu 
 tion, as it is, embraces the whole object, and is 
 sufficiently definite to guide the whole action of 
 the legislature. If there were time, and the oc 
 casion required it, and I felt a disposition to use 
 my half hour, I should like to say something 
 upon it ; but, I see that the resolution is likely to 
 be adopted as it is ; and as that is my desire, I will 
 not farther detain the Convention. 
 
 Mr. HOPKINSON, of Boston. It was not 
 my intention, when I offered this amendment, to 
 substitute a better phraseology than that which I 
 have moved to strike out, because I am equally as 
 partial to it as the gentleman who has just sat 
 down. My design was, to call the attention of 
 gentlemen to the fact, which seems to be disputed, 
 
 that there was a distinction now being made be 
 tween the colleges, in a resolution professedly 
 drawn up in order that they might all be treated 
 alike, and all placed upon the same footing. It 
 was not, therefore, for the purpose of delaying, or 
 defeating any action upon this subject, but for he 
 purpose of pointing out distinctly, what appears 
 to me, to have the air of an intention to make 
 distinction, and single out this college for dissec 
 tion, leaving the others untouched. Had I pro 
 posed to strike out the word " hereafter," in the 
 last line but one, it might, perhaps, have effected 
 the same purpose. If it is expedient to make any 
 provision applicable to one college, it is expedient 
 in reference to all. 
 
 I do not care to insist particularly upon this 
 amendment, because I do not think that it will 
 make very much difference. My purpose is gained, 
 if I point out the distinction between the lan 
 guage proposed, as applicable to this and the other 
 colleges. 
 
 Having made this explanation, I withdraw the 
 amendment. 
 
 Mr. FRENCH, of New Bedford, moved a sus 
 pension of the rules, in order that the question 
 might be taken on the final passage of the resolu 
 tion, without passing the question over to another 
 day. 
 
 Mr. BREED, of Lynn. I hope the gentleman 
 from New Bedford will withdraw that motion for 
 the present. 
 
 Mr. FRENCH. I will not press it, if there be 
 objection. 
 
 Mr. BREED. I move that the Convention 
 adjourn. 
 
 The motion was agreed to, and the Convention, 
 at half past six o clock, adjourned. 
 
 SATURDAY, July 16, 185S. 
 
 The Convention met, pursuant to adjournment, 
 at nine o clock. 
 
 Prayer by the Chaplain. 
 
 The Journal of yesterday was read and ap 
 proved. 
 
 Hoiir of Meeting on Monday next. 
 
 Mr. CRESSY, of Hamilton, moved, that when 
 the Convention adjourn, it adjourn to meet at ten 
 o clock on Monday next. 
 
 The motion was agreed to. 
 
 Final Adjournment of the Convention. 
 
 Mr. KNOWLTON, of Worcester, presented 
 the following order, which was adopted : 
 
50 
 
 GENERAL LAWS FOR CORPORATIONS, &c. [59th day. 
 
 Saturda}",] 
 
 WILSON WHITNEY DE WITT HALLETT. 
 
 [July 16th. 
 
 Ordered, That be a Committee to con 
 
 sider and report at what time the session of the 
 Convention may be brought to a close. 
 
 The following gentlemen were appointed as a 
 Committee for this purpose : Messrs. Knowlton, 
 of Worcester ; Schouler and Giles, of Boston ; 
 Cushman, of Bernardston ; Wilson, of Natick ; 
 Burlingame, for Northborough ; and Eames, of 
 Washington. 
 
 Adjournment this Day. 
 
 Mr. WILSON, of Natick, moved that the order 
 to adjourn at one o clock, be modified for this 
 day, so that the time of adjournment be extended 
 to two o clock. 
 
 The motion was agreed to. 
 
 Orders of the Day. 
 
 On motion by Mr. WHITNEY, of Conway, 
 the Convention proceeded to the consideration of 
 the Orders of the Day, the first order being the 
 resolve on the subject of 
 
 General Laics for Corporations. 
 It was read, as follows : 
 
 Resolved, That it is expedient to incorporate 
 into the Constitution, a provision that corporations 
 may be formed under general laws, in all cases 
 where the object of such corporation is attaina 
 ble under the same ; and where provision is thus 
 made by general laws, no corporation shall be 
 formed by special act. 
 
 The pending question being on the following 
 substitute, offered by Mr. Davis, of Worcester : 
 
 Resolved, That it is expedient to incorporate 
 into the Constitution, a provision that corporations 
 shall not be created by special act, when the ob 
 ject of the incorporation shall be attainable under 
 general laws. 
 
 Mr. DEWITT, of Oxford. I would inquire 
 of the Chair, if an amendment to this substitute 
 will be in order. 
 
 The PRESIDENT. It will be in order. 
 
 Mr. DE WITT. Then, Sir, I move to amend 
 the substitute, by inserting before the word " cor 
 porations " the words " manufacturing, mechani 
 cal, and banking." 
 
 Mr. HALLETT, for Wilbraham. The amend 
 ment proposed by the gentleman from Oxford, 
 (Mr. De Witt,) is designed to embrace manufac 
 turing, mechanical, and banking corporations, 
 and thereby, by that limitation, to admit all other 
 incorporations. I am opposed to that amend 
 ment. The proposition, as it is reported by the 
 Committee, contains the general principle, that it 
 is expedient to incorporate into the Constitution 
 
 a provision, that corporations shall not be cre 
 ated by special act, when the object can be at 
 tained by general laws. That, I regard, as a 
 fundamental principle worthy of being incorpo 
 rated into the Constitution ; but if you incorpo 
 rate into the Constitution a provision that cer 
 tain trades or occupations shall not have char 
 ters, leaving it to be inferred by implication, that 
 all others may, then I think you are making your 
 Constitution a mere specific act of legislation. I 
 think, therefore, that this amendment involves a 
 specification which ought not to be adopted, as a 
 general principle, because it makes a discrimina 
 tion. It virtually says to the legislature, " you 
 may take care of the interests of certain classes, 
 in this respect, but in regard to the interests of 
 other classes, you shall not interfere." I go for 
 a general principle, to be applied in all cases 
 either that you should leave to the legislature a 
 discretionary authority, untrammelled by a limi 
 tation of this kind, or else leave the matter in 
 the precise manner in which it now stands, per 
 mitting every individual to come and get a char 
 ter of incorporation, by purchasing a ticket in 
 this lottery of special legislation ; because that it 
 is a lottery, every one knows who has been en 
 gaged in it, either on his own account, or for the 
 benefit of others. The provision, submitted as a 
 substitute for the resolution first reported, brings 
 the principle directly to our consideration. It 
 seems to me to be one of the best expressed pro 
 visions for a fundamental law, that I have yet 
 seen introduced in this Convention. 
 
 Now, Mr. President, we have simply to choose 
 between special legislation upon incorporations, 
 in all cases, or general legislation in cases where 
 general legislation will meet the case. The prop 
 osition to which I allude, is the one which is 
 offered as a substitute, and which I perceive was 
 offered by the gentleman from Worcester, (Mr. 
 Davis). 
 
 Resolved, That it is expedient to incorporate 
 into the Constitution, a provision that corpora 
 tions shall not be created by special act, when 
 the object of the incorporation shall be attainable 
 under general laws. 
 
 That is a provision which I desire to see incor 
 porated into the Constitution, and it is the most 
 unexceptionable provision, which, in my judg 
 ment, it is possible for words to place there. It 
 expresses exactly what we mean, and that is, if I 
 understand it, that all subject matters of incor 
 poration which can be embraced by provisions of 
 general legislation, shall be provided for, by gen 
 eral laws, which the legislature will be bound to 
 enact, by this injunction in the Constitution. 
 
59th day.] 
 
 GENERAL LAWS FOR CORPORATIONS. 
 
 51 
 
 Saturday,] 
 
 HALLETT. 
 
 [July 16th. 
 
 This will take care of all general business con 
 cerns, and, on the other hand, whenever a great 
 question arises, which the legislature, in their 
 judgment subject to the revision of the judiciary 
 if they violate this provision shall determine is 
 not within the powers of the general law, shall 
 require some special guards or privileges, then 
 the legislature is at liberty to act, by a law to 
 meet the case. 
 
 Now, I ask, if there can be any citizen of this 
 Commonwealth, who has no other good in view 
 except that of the Commonwealth, who will 
 stand upon any other principle than that of equal 
 ity, as here set forth in all business concerns ? 
 Can he desire anything more than this ? because, 
 if he believes in the propriety of embodying 
 fundamental principles in the Constitution, he 
 has no right to ask for special privileges which 
 are not conferred by general laws ; and, in this 
 matter of special incorporations, it is neither 
 more nor less than a special privilege or advan 
 tage, conferred upon the few to whom it is given, 
 to the exclusion of all the rest ; and to obtain it, 
 outside of a general law, a great public good 
 must be made to appear, which the general law 
 cannot secure. 
 
 Mr. President : I am not going into the general 
 question of incorporations. It is one on which I 
 have said and written a great deal, in the course 
 of my life ; but I am not considering it now as a 
 question between parties. It eomes up here as a 
 fundamental principle ; and therefore, I say, in 
 regard to this matter of special incorporations and 
 privileges to enable one man or class of men to 
 carry on any particular occupation or business 
 without giving to all others the same rights, 
 that it is special legislation ; and, therefore, when 
 you come to that point, you must do one of two 
 things : either leave it to the will of the legisla 
 ture to determine in each case that certain persons 
 or classes are, or are not, entitled to these special 
 privileges, and thereby violate the Bill of Rights, 
 or else you must so open this privilege of incor 
 poration, that any and every man may avail him 
 self of it under general laws, giving to the public 
 a proper security, and conforming to proper re 
 strictions. 
 
 In regard to this matter of special business in 
 corporations, many persons have held, and still 
 hold, the doctrine that they ought never to have 
 been granted, except under general laws. But if 
 the people, for a long series of years, have failed 
 to check special legislation hitherto, and it has 
 run on to such an extent that benefits and favors 
 have been conferred upon a minority of the com 
 munity, to the exclusion of a large majority, then 
 the only way is to go on and extend it as far as 
 
 you can ; and for that reason, in regard to this 
 matter, I would at once either establish a consti 
 tutional rule that every man, or every class of 
 men, petitioning for any trading charter of incor 
 poration, should have it, as a matter of course ; or 
 else I would establish a general rule under which 
 every class of men might incorporate themselves, 
 conforming to the laws in such case provided; 
 and there is not a single special provision which 
 is requisite for a company or association, without 
 exclusive favors, to carry on any trade, occupation, 
 or business, that cannot be incorporated into a 
 general law. 
 
 But, it will be asked, " Have we not a general 
 law now in regard to corporations?" True, we 
 have ; and what is it ? How does it operate ? 
 Why, Sir, you will not allow anybody to have 
 a charter of incorporation for anything, unless he 
 petitions the legislature, issues the required order 
 of notice, goes before the committee, employs his 
 counsel, has an agitation about it whenever he is 
 coming in contact with his neighbors ; and, 
 finally, either obtains his charter of incorporation, 
 and gets an advantage he is not entitled to have, 
 or loses his time and money if he does not obtain 
 it. Now, what sort of a tribunal is the legisla 
 ture, to decide upon such matters in individual 
 cases ? Why should that body be called upon to 
 determine between the interests of two competi 
 tors in trade in some city or village ; one party, 
 perhaps, starting the business upon his own real 
 capital, and another upon capital borrowed from 
 his neighbor, or a bank which he has got charter 
 ed, each contesting which shall have the advan 
 tage over the other ? To interfere in such a case, 
 is "special legislation," and that is the very special 
 legislation which is applied to these business cor 
 porations, manufacturing, trading, mechanical, and 
 banking, and others of a like nature, the result of 
 which is, that the legislature in this Commonwealth 
 has become a complete nuisance. Yes, Sir ; your 
 legislature has become a public nuisance. I speak, 
 of course, not of the individuals composing that 
 body ; for them, individually, I have the highest 
 respect; and I would say that it is impossible 
 that in the Commonwealth of Massachusetts you 
 can gather together, as the representatives of the 
 towns and cities, four hundred men of whom the 
 majority will not be both honorable and intelli 
 gent ; but when they get here, they are operated 
 upon by influences of which they are not aware 
 in judging of what is proper and what is improper, 
 fair or unfair, in these matters ; and it would be 
 expecting too much of human nature, to suppose 
 that they will not, on some occasions, make mis 
 takes, and do great injustice to petitioners, and 
 great wrong to the public. 
 
52 
 
 GENERAL LAWS FOR CORPORATIONS. [59th day. 
 
 Saturday,] 
 
 HALLETT. 
 
 [July 16th. 
 
 They must sometimes give the charter where 
 they ought not to give it, and withhold it where 
 it ought to be granted. Well, how will you 
 avoid that result ? Instead of requiring that every 
 individual or association shall come and apply 
 for the privilege of corporation, and that no per 
 son shall have it unless he has the special favor of 
 the legislature, you will say, by this proposed 
 amendment, that the legislature shall make a 
 general law, and when it is made, that those who 
 conform to it, shall have the privileges and bene 
 fits of it. That is all we need say in regard to 
 any business corporation, all that the legislature 
 need do, and all that the people want. This will 
 not destroy competition, nor check industry. The 
 interest of the public consists in opening all busi 
 ness to competition, and that interest only wants 
 to be guarded against fraud, and the injury which 
 may arise from persons recklessly, unguardedly, 
 or with fraudulent or speculatory intention, en 
 gaging in those various combinations of business 
 which come to the legislature for charters. Can 
 anything be more simple than to say that general 
 laws shall govern them in all cases? and then 
 make the general law safe and practicable. 
 
 If you do this, the legislature, which has well 
 been considered as a nuisance, because of this 
 very kind of endless and conflicting special legis 
 lation, will cease to be such, and you will be able 
 to confine its sessions not only to one hundred 
 days, but much within the hundred days. Take, 
 for illustration, the action of the last legislature 
 and I do not mean to censure that legislature, be 
 cause I believe that whatever fault is connected 
 with it, was, to some extent, the fault of our 
 system, rather than the fault of the individuals 
 which composed it I say, if you look over the 
 whole course of proceeding of that legislature, 
 you will find there never was a body that labored 
 harder than they did ; but they were working 
 upon the miserable issues brought before them, 
 and they were working upon a false system, 
 namely : that the legislature is assembled every 
 year to legislate upon every man s particular busi 
 ness, instead of framing general laws, and then 
 leaving every man to take care of his own affairs. 
 Unless we strike down this sort of special legis 
 lation, the legislature, because of the increasing 
 business and enterprise of the community, which 
 is constantly accumulating, must go on, not only 
 during the one hundred days, but from day to 
 day, and become not only a general court, but an 
 everlasting and unadjourning court, the mere 
 makers, managers, and agents of special incorpo 
 rations. 
 
 Now, as to the practical operation of this prin 
 ciple. Is this sort of legislation wholesome or 
 
 necessary ? I think there are some business men 
 here, within the sound of my voice, who know 
 the practical operation of business interests of this 
 sort, and who begin to perceive that Massa 
 chusetts has gone too far in special legislation. 
 Take, as an illustration of the practicability of 
 general laws, one interest, to which the attention 
 of men of science and business, having large 
 commercial views, has been recently directed. I 
 mean the great copper interest of the West, which 
 is growing up in this country. Why, Sir, in a 
 very little while, the copper of the United States, 
 by reason of its great superiority and productive 
 ness, will supersede that of all other parts of the 
 world. In all the great manufacturing marts of 
 the world, the copper of America will become as 
 common, and as much in demand, as the best 
 staple cotton of the United States. But all the 
 resources of this material, which lie all around 
 the northern lakes, are being developed under 
 one simple general law of the State of Michigan, 
 which does not occupy more than a page or two 
 upon the statute book ; and there is now invest 
 ed, under that general law, millions of capital and 
 industry ; and I undertake to say, invested with 
 as much security and profit as it could be under 
 any special act of incorporation upon the statute 
 book of Massachusetts ; and invested, too, with 
 as much safety and security, not only to the com 
 panies, but to the public. One general law has 
 done all this, and nobody has complained of any 
 fraud, or any danger of fraud, from it, except the 
 tendencies of all business to speculation ; and the 
 stocks of these companies are just as good in our 
 market, as are the shares of the Lowell Railroad, 
 or the State Street banks. Now, if all this has 
 been done by this young State of Michigan, hav 
 ing these rich resources within her bosom, why 
 cannot the same thing be done by the old, expe 
 rienced, and intelligent State of Massachusetts ? 
 
 I say, Mr. President, there cannot an argument 
 be fairly raised against the proposition that gene 
 ral laws should be made, to enable persons to 
 associate together for the purpose of performing 
 all business transactions which can be performed 
 under general laws. What gentleman contra 
 venes that proposition ? No one can. 
 
 What do you need to provide for in these gen 
 eral laws ? You want simply to give corporations 
 the power of succession, that vital principle that 
 will never let them die out ; you want to alter 
 the mode of administration, in regard to the real 
 estate which may belong to them, so that when 
 one member of the corporation dies, it shall not 
 work the dissolution of the corporation. These 
 are fundamentally the whole principles which you 
 need to insert into these general laws, with, of 
 
59th day.] 
 
 GENERAL LAWS FOR CORPORATIONS. 
 
 53 
 
 Saturday,] 
 
 HALLETT. 
 
 [July 16th. 
 
 course, proper guards and securities to the public, 
 and especially to labor. Now, in regard to this 
 last point of absorbing real estate into these in 
 corporations, I want to say a word, for I am a 
 practical man, and when propositions are pre 
 sented to me, they do not strike my mind very 
 favorably, unless I see something practical in them. 
 Hence, when I have heard in this discussion of 
 women s rights, very learned gentlemen elabo 
 rating themselves upon it, I have wondered why 
 they could not think of one practical fact, by 
 turning their attention to which, they could do 
 more good to the women than they can by talk 
 ing this enthusiastic nonsense all their lives. I 
 refer to the subject of woman s dower. That 
 is a practical subject, but this discussion as to 
 whether women shall participate in politics, or 
 whether she shall have the exclusive monopoly 
 of a certain branch of medicine, is all without 
 point, use, or meaning. But when we talk about 
 a woman s dower, and her right to have it se 
 cured to her, in all cases, we are talking of some 
 thing which affects her directly. 
 
 "Well, Sir, how stands this matter here in Mas 
 sachusetts. There lies upon your table a report 
 from the Secretary of State, showing that four 
 hundred millions of the property of Massachusetts 
 is invested in corporations ! Many of them land 
 corporations, which trade in real estate. I be 
 lieve that the whole valuation of the State is 
 only about six hundred millions of dollars. Four 
 hundred millions out of six hundred millions 
 two-thirds of the property in the whole State 
 are already invested in incorporations! Well, 
 if we have indeed come to that, then let us 
 form a corporation of the whole Commonwealth 
 in a lump, and be done with it. Let us have 
 a joint stock corporation of Massachusetts, for 
 we have almost come to that. I did not think 
 it Was as bad as that, until I saw that report 
 from the secretary. I did not suppose that quite 
 one-half of the valuation of Massachusetts had 
 gone into incorporations. But it seems that 
 in fact two -thirds of the whole of the property 
 of the State is put into mortmain in these corpo 
 rations for this is the modern mode of locking 
 up property in mortmain. Now, of this four 
 hundred millions of dollars, put into this kind of 
 mortmain, what proportion of it is real estate ? I 
 presume at least one -half of it is. And what is the 
 result upon the women of the Commonwealth ? 
 The men have cheated every woman in this Com 
 monwealth out of her dower in two hundred mil 
 lions of dollars of real estate ! That is the way 
 men have plundered women by special legislation. 
 And that is the subject to which I should like to 
 see the gentleman in the gallery, (Mr. Whitney, of 
 
 Boylston,) and other gentlemen who believe with 
 him, direct their reforms. Here is a practical ques 
 tion, affecting the rights of women more deeply 
 than any other upon which you can touch in this 
 Commonwealth, for you have got two hundred 
 millions of dollars of real estate of the Common 
 wealth put into corporations, and wi at do you 
 provide in relation to it ? You say that this two 
 hundred millions of dollars of real estate shall be 
 considered as personal estate, without the women 
 having the right to say whether they will sign off 
 their dower or not, and when the husband who 
 owns in it, dies, it goes into the hands of the 
 administrator, as personal estate, and is applied 
 first, to pay the corporate debts, and then to pay 
 his individual debts, and the widow can have no 
 right of dower in it. There the widow and the 
 orphan stand helpless. 
 
 I say that is legislative robbery, and you can 
 not defend it by any principle. You have herein 
 violated that great principle of law which declares 
 that laws are made, and communities are governed, 
 by the consent of the governed ; and you have 
 violated another principle of common law, which 
 provides that when a right of property is vested in 
 an individual, you cannot by any law, divest him 
 of that right, without compensation. Gentlemen 
 get up here and argue earnestly upon the ques 
 tion of a change in respect to the government of 
 Harvard College, and they cite the decision pro 
 tecting charter rights, in the case of Dartmouth 
 College, but when the question comes up as to 
 the rights of the women of the land, when these 
 landed and special corporations are granted to 
 steal their dower, who says a word for them? 
 You have gone on taking this landed property 
 from women, and invested it in corporations, and 
 deprived them of their right of dower in it, 
 against the fundamental principle that you cannot 
 deprive individuals of their private rights, with 
 out an equivalent. 
 
 Now, whether it is in the power of the legisla 
 ture to redress this state of things, I do not under 
 take to say. That is a very great and important 
 question. It is much easier, as we have already 
 heard, to descend into the lower regions, than it 
 is to get back, when once down in the abyss. I 
 do not know what we can do as to the past, but 
 I do know what we can do as to the future. 
 Grant no more incorporations, special or general, 
 that shall deprive woman of her dower ! We 
 are here as the representatives of women, and 
 does any man mean to deprive his wife and chil 
 dren, his daughters who are growing up, and 
 who, in the progress of life and society, are liable 
 to become widows, of their right of dower ? No, 
 Sir, there is not one capable of saying or mean- 
 
54 
 
 GENERAL LAWS FOR CORPORATIONS. 
 
 [59th day. 
 
 Saturday,] 
 
 SARGENT. 
 
 [July 16th. 
 
 ing such a thing as that, directly, and yet, the 
 people have sent legislatures here for seventy 
 years, that have taken away from her in that 
 period of special legislation, her thirds of almost 
 one- third of the real estate of the Commonwealth 
 of Massachusetts, and thus violated that great 
 principle of the common law of England, that 
 under no circumstances shall a woman be deprived 
 of her right of dower. That is, of itself, reason 
 enough for requiring general laws as to corpora 
 tions, and for guarding against their operation in 
 depriving woman of her dower in lands incorpo 
 rated, or held in copartnership concerns. 
 
 [Here the President s hammer fell, under the 
 order of the Convention limiting speeches to one 
 half hour.] 
 
 Mr. SARGENT, of Cambridge. I suppose, Sir, 
 that in this case, as in all others, we are first to 
 consider and ascertain whether any evil has arisen 
 under the present Constitution, and, having ascer 
 tained that fact, if we find such evil has arisen, 
 we are then to determine what is the proper 
 remedy. 
 
 The gentleman from Oxford, (Mr. De Witt,)this 
 morning, if I understood his argument rightly, 
 stated that a very large portion of the taxable 
 property of the State, was now in the hands of 
 corporate companies, and that, in 1810, it amounted 
 to two-thirds the whole taxable property of the 
 State. This, I understand that gentleman to 
 assert, to be an evil. And he says it has grown 
 up at the expense of the small towns. Sir, is that 
 position correct ? Is the position that this is an 
 evil, burdensome upon the small towns, correct ? 
 
 First, has it depreciated the property, or injuri 
 ously affected the interests of the inhabitants of 
 the small towns ? If it has not, then, in that 
 point of view, the small towns have not suffered. 
 
 Again, when you apportion a tax throughout 
 the Commonwealth, do you find that there is op 
 pression of the small towns, growing out of this 
 system ? Do they not, on the other hand, find it 
 a great relief? Is not their proportion of the 
 taxes greatly diminished, by the increase in the 
 property of the Commonwealth, which has accu 
 mulated under this system of corporations ? If the 
 answer be yes, then I hold that the argument of 
 the gentleman from Oxford, altogether falls in 
 this respect. 
 
 The gentleman for Wilbraham, (Mr. Hallett,) 
 adduces, as another evil growing out of the present 
 system, that it deprives the widow of her right of 
 dower. Now, is that an evil which ought to be 
 remedied ? It may be an evil, so far as those acts 
 of incorporation cover real estate, and convert it 
 into personal property. 
 
 The gentleman proposes a general law, as the 
 
 proper remedy. Now, will a general law remedy 
 that evil ? or will it remedy the evil complained 
 of by the gentleman from Oxford ? If, under 
 special charters already granted, one-half, or two- 
 thirds of the property of the Commonwealth is 
 already covered, and, in that is included a large 
 portion of real estate in which the widow is de 
 prived of her right of dower, I ask you, if the 
 remedy proposed, either in the Report of the 
 Committee, or by the amendment of the gentle 
 man from Oxford, is calculated to remedy or 
 lessen that evil, and restore to the widow her 
 right of dower. Will it not have directly the 
 contrary effect. Will it not, by adopting a gen 
 eral law, open the door through which every acre 
 of land in the Commonwealth may be brought 
 under acts of incorporation, and thus deprive 
 every female in Massachusetts, of her right of 
 dower. I do not understand that either the gen 
 tleman from Oxford, (Mr. De Witt,) or the gen 
 tleman for Wilbraham, (Mr. Hallett,) propose to 
 limit this right of incorporation ; but, on the other 
 hand, they propose to enlarge and extend it. If, 
 then, it is an evil, as now limited under the pro 
 posed Constitution, I ask if that evil will not be 
 increased just in proportion as you enlarge and 
 extend the power ? 
 
 I believe, I have always believed, that the in 
 terest of Massachusetts, in all her acts of incor 
 poration, and, indeed, the very success of those 
 corporations themselves, has depended, in a great 
 degree, upon the fact, that the legislature held a 
 wise controlling power- over every special act they 
 granted. And, I believe that the moment you 
 yield up that wise controlling power over these 
 corporations, you will place the interest of the 
 Commonwealth in jeopardy, and just so far as you 
 place the interests of the Commonwealth itself in 
 jeopardy, to that extent you place the interests of 
 all its citizens in jeopardy. I hold, then, that 
 the remedy proposed, instead of removing the evil 
 complained of, will increase it. 
 
 First, it is alleged that too much property is 
 already vested in, and under the control of cor 
 porations ; but this proposition will open the door 
 for a larger amount to be vested in them, than 
 under the present Constitution. 
 
 Second, it is alleged, that under the present 
 provisions of the Constitution and laws, the 
 rights of the widow are taken away. Now, it 
 seems to me, that by the proposition before us, the 
 door is opened for every acre of land in Massa 
 chusetts, to be brought under acts of incorpora 
 tion. I do not believe that such a thing would 
 ever take place ; but you will enlarge the amount 
 of property vested in these corporations very 
 much. I therefore think the measure which is 
 
59th day.] 
 
 GENERAL LAWS FOR CORPORATIONS. 
 
 55 
 
 Saturday,] 
 
 FROTHINGHAM. 
 
 [July 16th. 
 
 here proposed, will not remedy the evil, but rather 
 increase it, and I hope it will not be adopted by 
 the Convention. 
 
 Mr. FROTHINGHAM, of Charlestown. I 
 am in favor, Sir, of the resolution now before the 
 Convention, but not for the precise reasons which 
 have been adduced, however much force there 
 may be in those reasons, but for others which 
 appear to me to be conclusive. Before I proceed, 
 however, I desire to ask the President if the whole 
 subject is under consideration ? 
 
 The PRESIDENT. The amendment of the 
 gentleman from Oxford, (Mr. De Witt,) opens the 
 whole subject for discussion. 
 
 Mr. FROTHINGHAM. I understand, then, 
 that as the matter is now before the Convention, 
 if this proposition be adopted by the Convention, 
 and approved by the people, they will then say to 
 their agents in the legislature, that, in reference 
 to the principle of granting acts of incorporation, 
 it shall be done under a system of general legisla 
 tion, whenever it is practicable, and not by means 
 of special charters given by the legislature, which 
 has been the policy heretofore acted upon to such 
 a great extent in Massachusetts. I am in favor 
 of laying that down as sound policy. 
 
 Now, Sir, say what we will in favor of the ad 
 vantages of individual enterprise, the corporate 
 principle is valued highly by business men. That 
 is the practical fact, and there is no denying it. It 
 is seen in all the various operations of business. 
 It is seen here in this State, where it has been 
 carried to such great lengths, and it is seen in 
 every other State. Wherever the progress of 
 things carries American principles and American 
 enterprise, there is seen a tendency to adopt this 
 corporate principle, this custom of association and 
 organization of effort. And why ? Because, at 
 the bottom, in itself considered, it is a democratic 
 principle. It is a simple way of getting together 
 the means of men of small capital, and thereby 
 combining and accomplishing objects which they 
 otherwise could not accomplish. That is the 
 principle of association in business matters. The 
 tendency is, to carry this to a great extent. Pushed 
 to its extreme point, it is communism, socialism, 
 or what is generally understood by those terms. 
 But here, as we have it in Massachusetts, and in 
 all the States of this Union, it is nothing more 
 than a principle by which men with small means 
 can combine and accomplish those objects which 
 they could not otherwise accomplish, but which 
 would have to be left to the heavy capitalist. 
 
 Now, Sir, I am in favor of laying down this as 
 the general policy of Massachusetts. Then, in 
 stead of being used only by those who succeed in 
 making out a case, as it is called, before a com 
 
 mittee of the legislature, or before the legislature 
 itself, and in this way of being obtained as a priv 
 ilege, that it should be open to all, as of right, 
 under a system of general laws. This will take 
 from the practice its monopoly feature, and sub 
 stitute for it the just feature of equality ; giving 
 to all equal chances. What now is distributed as 
 patronage, as matter of favor, political or other 
 wise, will then be at the option of all, as matter of 
 right. 
 
 Such a policy will have to commend it the con 
 sideration that it will be in accordance with that 
 internal freedom of action which has done so much 
 for Massachusetts, and for the country ; and it 
 will also be carrying out the legitimate functions 
 of government. It is not the true province of the 
 latter to meddle with, or control private interests, 
 to act as their director and guardian, and exercise 
 a paternal care over them. It has even proved 
 itself a poor regulator of the pursuits of business. 
 Interest is sharp enough to look out for itself, and 
 all experience has shown, that when government 
 travels out of its province to become the ruler in 
 stead of the agent of the people, it has mistaken 
 its office. 
 
 Now, it has been this individual freedom of ac 
 tion, which has contributed so much to promote 
 the material prosperity of Massachusetts, and of 
 the country. If there is any one thing more than 
 another which has contributed to build us up in 
 this State, it is that large measure of internal free 
 dom as to trade, as to manufactures, as to com 
 merce, and as to all the industrial pursuits of life, 
 which the people of Massachusetts have exer 
 cised to a very large extent. This remark will be 
 found to be true, notwithstanding the restrictions 
 which, in our early history, were placed upon 
 business. It is said by legal gentlemen who have 
 looked into the early laws of our colony, that the 
 people here were at least one hundred and fifty 
 years ahead of all the world besides, in relation to 
 penal laws, and the same thing is true also in rela 
 tion to business laws. Now, I know what may be 
 said in answer to this. I know it may come up 
 in the minds of many, as this remark is made, 
 that there will be found upon the pages of our 
 statute books ridiculous provisions of law for regu 
 lating business. But the true point is, not what 
 there was in Massachusetts alone, but what else 
 where was customary at that day ; what, for in 
 stance, there was in the old country, at the time 
 our trade and commerce first begun. If the state 
 of things over the other side of the Atlantic at 
 that time, be examined, it will be seen what were 
 the rules and regulations and restrictions imposed 
 by the governments of the old world, upon all the 
 trades and avocations of life. The paternal sys- 
 
56 
 
 GENERAL LAWS FOR CORPORATIONS. 
 
 [59th day. 
 
 Saturday,] 
 
 FHOTHINGHAM. 
 
 [July 16th. 
 
 tern then and there, was in full operation. It 
 will be found that the great end and object 
 almost, of those governments, in their assumptions, 
 were to regulate, restrict, and control the business 
 operations of individuals. It was assumed, with 
 respect to the farmer, the mechanic, and the la 
 borer, that they had not sufficient intelligence or 
 business faculty to take care of themselves, but 
 that they needed to be cared for, like so many 
 children, as to all the minute relations of life. It 
 was held, that such care was necessary for the com 
 mon good, for the safety and even existence of 
 society. This was, in brief, the doctrine of hered 
 itary legislators and rulers, who claimed the di 
 vine right to rule the rest of mankind, and to 
 extort monstrous sums for their services. And 
 they exercised this right freely. There was not a 
 business pursuit in the mother country at the 
 time Massachusetts was settled, that was not ab 
 surdly and wantonly regulated. There was not 
 an article that could be used on the table, or on 
 the person, or on the farm, or in the workshop, 
 that either was not the subject of some monstrous 
 monopoly, or some absurd restriction, as to manu 
 facture and sale, and all were fortified by penal 
 ties. And this was carried, too, into regulations 
 as to laborers meat, and drink, and wages. 
 
 Now, Mr. President, it was under such a state 
 of circumstances, that the farmer, the mechanic, 
 and the trader, commenced here in Massachusetts. 
 It was when monopoly and restrictions on trade 
 were in their carnival, and, to judge the early 
 people of this State rightly, this should be borne 
 in mind. Another thing may be worthy of re 
 mark. When legal gentlemen praise the early penal 
 legislation of Massachusetts, and when others, 
 with equal justice, praise its business legislation, 
 let the credit of the great and undoubted ad 
 vance it all shows, be placed where it belongs. 
 For two or three generations, the general court 
 was composed solely of farmers, mechanics, tra 
 ders, and laborers. Without intending to reflect 
 on the great profession of the law, it may be well 
 to remember, that for many years the people and 
 laws too, would not allow a lawyer to be a 
 member of the general court. Hence, it is to 
 the common sense of these classes, that we owe 
 the comparatively liberal legislation under which 
 our infant manufactures thrived. 
 
 Very early in the history of our government, 
 the general court, in the face of this old world 
 restriction, passed one short act, if I remember 
 rightly and I think I remember the whole of it 
 saying exactly what it is now asked should be 
 put into our Constitution. I cannot speak with 
 precision, as to the exact words, for I have no 
 brief or notes before me, not expecting to speak 
 
 upon this subject; but it was about 1640, or 
 thereabouts, the general court of Massachusetts 
 passed an act, in which it was ordered that there 
 shall no monopoly exist amongst us, except as 
 to authors of inventions, and to them only for a 
 short time. That was the whole of the act. 
 And, from that day to this, there has been a con 
 stant tendency, upon the part of the business of 
 Massachusetts, to relieve itself from those absurd 
 restrictions, which were, from time to time, im 
 posed upon it, and which were derived from the 
 mother country. 
 
 Now, Sir, I am in favor of carrying out the 
 idea, that here, in Massachusetts, there shall be 
 no monopoly amongst us, in relation to corporate 
 rights. I am in favor of saying, that, whatever 
 advantages there may be in them, they shall not 
 be confined to those who now enjoy them, but 
 that they shall be enjoyed by all who choose to 
 take advantage of them thereby taking the 
 matter out of the category of privilege, and put 
 ting it upon the ground of right. 
 
 But, Sir, we have tried the experiment, to some 
 extent, here in Massachusetts. I think there are, 
 upon your statute books, general laws in relation 
 to the incorporation of lyceums, cemeteries, and 
 other objects of association. I do not know in 
 how many cases the system of general legisla 
 tion has been applied. Take, for instance, one of 
 the late acts passed by the legislature, by which 
 any individual may go to a probate court and 
 have his name changed, whereas, it used to be 
 necessary for every individual who wanted to 
 change his name, to apply to the legislature for 
 that purpose. 
 
 Then there is another general law in relation to 
 closing the concerns of corporations. I do not 
 believe there is but one opinion about the wis 
 dom, the safety, and the soundness of that law. 
 It is a short act, but it provides that, when a cor 
 poration closes up its proceedings it shall pursue 
 a certain course, by application to the supreme 
 court. That is about the extent to which this 
 system of legislation has been carried in Massa 
 chusetts. But, look at the neighboring State of 
 Connecticut. Look at New York look at Mich 
 igan look at nearly all the Western States, and 
 it will be found that general laws have been ap 
 plied to nearly every kind of business concerns. 
 
 Now, if I understand the objections to this 
 principle, they all centre in about this : that it is 
 the duty of the government to see that unworthy 
 individuals do not receive from the legislature 
 power to cheat other individuals. I believe that 
 is the whole objection the whole ground of 
 hesitation upon the part of those gentlemen who 
 oppose the adoption of this resolution. They 
 
59th day.] 
 
 GENERAL LAWS FOR CORPORATIONS. 
 
 57 
 
 Saturday,] 
 
 FROTHIXGHAM SCHOULER. 
 
 [July 16th. 
 
 say, that if you allow any set of individuals, for 
 any purpose whatever, to form themselves into 
 corporations under general laws, that it will open 
 the doors to enormous frauds and cheats, which 
 it is the duty of the legislature to prevent. 1 
 admit it is the duty of the legislature to make 
 these general laws so sound, so safe, and so se 
 cure, to the property that invests itself under 
 them, that this fraud, as much as possible, may be 
 prevented ; and farther than that, it does not 
 seem to me that it is the duty of the legislature to 
 go. When it goes beyond that, it steps into that 
 round of paternal legislation which has been the 
 curse of commerce for ages. I undertake to say, 
 that it is not the duty of the legislature to take 
 care of the private interests of men, but only to 
 furnish those sound, safe, and general rules, by 
 which they may conduct their business. It is 
 for this reason, therefore, and not for other good 
 reasons that have been alleged, that I am in favor 
 of extending this principle of legislation, and of 
 inserting in our Constitution a short and simple 
 rule or instruction to our agent, the legislature, 
 to this effect : wherever it can be done, the leg 
 islature shall make those general laws, and cease 
 granting special privileges. 
 
 Mr. SCHOULER, of Boston. I have only a 
 few words to say in regard to this matter. This 
 subject has been discussed in this hall, in days 
 gone by, with great ability, but I have never be 
 come a convert to these general corporation acts. 
 I am not quite so much a corporation man as to 
 give every set of men who may combine together 
 the right to form themselves into a corporation. 
 I think it is the duty of the legislature, to inves 
 tigate all applications for corporations ; and, if the 
 applicants make out a case, to give them their 
 charter. But, to pass a general law whereby any 
 persons may combine Tom, Dick, and Harry 
 and form themselves into a corporation, and go 
 into any kind of business, I think ought not to 
 be tolerated. The gentleman for Wilbraham, 
 (Mr. Hallett,) and the gentleman from Charles- 
 town, (Mr. Frothingham,) have spoken against 
 this idea of encouraging associated wealth. They 
 are in favor of having everything done, that can 
 be done, by individual corporations, and so am I. 
 It is because I am in favor of individuals doing 
 all the work that can be done, that I am opposed 
 to passing a general corporation act, whereby any 
 persons may form themselves into corporations. 
 We have a certain kind of business in this State, 
 that has never been transacted by corporations, 
 and that is, the great trade of manufacturing shoes. 
 The shoe and leather business in this State, has 
 never been transacted by corporations, and I trust 
 it never will be. The great work of building 
 
 ships has never been in the hands of corporations, 
 and, if persons should come up to the legislature 
 and ask for an act of incorporation for that pur 
 pose, they would not get it, upon the principle 
 that this business, as has been shown, can be done 
 by private enterprise ; and whenever this can be 
 done, I say there let it remain. I ask the gen 
 tleman from Charlestown, (Mr. Frothingham,) 
 and also the gentleman for Wilbraham, (Mr. 
 Hallett,) supposing that men form themselves into 
 corporations under this general corporation act, 
 and it is found out afterwards that they do not 
 transact their business properly, you cannot take 
 away from them their charter. They are inde 
 pendent of the legislature and the people. You 
 cannot stop them, unless you repeal the general 
 act ; and when you do that, you punish the inno 
 cent with the guilty, because there may be a 
 hundred other corporations incorporated under 
 this general corporation act. It may be said that 
 we may pass a special law in regard to men. asso 
 ciated together under general a law, if they trans 
 cend the power of that general law. But, sup 
 posing we do, what is to hinder those men, the 
 next day, from forming a corporation under this 
 general law. Last year, we had an application 
 here to the legislature, to form a company by the 
 name of the Worcester Caloric Power Company. 
 They were to have $500,000 capital, and it ap 
 peared in the bill, if I recollect aright, that they 
 were to hold real estate in the city of Worcester 
 to the amount of $400,000. It was well known 
 that it was nothing but a land speculation, got up 
 under this title, intended to create the impression 
 that it was intended for mechanical purposes. 
 This is what gentlemen might call mortmain, 
 although this definition of mortmain is a little dif 
 ferent from the original definition. But, when 
 that came to be discussed before the House of 
 Representatives, they killed it by a decisive vote. 
 I do not know but what they may have forced 
 themselves, under general laws, into the Worces 
 ter Caloric Company. What you can stop by 
 legislative enactment and investigation, they can 
 obtain under general laws. The gentleman for 
 Wilbraham, (Mr. Hallett,) says the amount of 
 property owned by corporations, amounts to four 
 hundred millions, and yet he is the advocate of 
 a system, by which you can put the whole me 
 chanical, and other business of the Commonwealth, 
 into corporations. He talks about corporations 
 owning this great amount of property, and yet 
 he advocates a law whereby they can hold the 
 whole State, and the legislature cannot say no. 
 And they will be independent of the people and 
 the legislature. I am not such a corporation man 
 as that. 
 
58 
 
 GENERAL LAWS FOR CORPORATIONS. 
 
 [59th day. 
 
 Saturday,] 
 
 HALLETT SCHOULER FB.OTHINGHAM. 
 
 [July 16th. 
 
 Mr. HALLETT, for Wilbraham. Will the 
 gentleman allow me to ask him one question. If 
 four hundred millions of property have gone into 
 corporations, I should like to ask him what right 
 he has to exclude the other two millions from 
 going into corporations also. 
 
 Mr. SCHOULER. If the gentleman comes 
 before the legislature and makes out a good case for 
 an act of incorporation, he will get it. I was 
 reminded, while the gentleman was speaking 
 about monopolies, that if there is anything like a 
 a monopoly, it is the profession which the gentle 
 man himself follows. "Why does not the gentle 
 man go for incorporating into the Constitution a 
 provision that every-body should be a lawyer, and 
 that he shall not have to serve three vears, and 
 then be examined before a certain legal tribunal, 
 to see if he is fit to exercise the duties of the 
 profession. 
 
 Mr. HALLETT. If the gentleman will in 
 corporate a provision into the Constitution that 
 would make lawyers, I would be very willing to 
 doit. 
 
 Mr. SCHOTJLER. I believe that lawyers can 
 be made about as easily as anything else. 
 
 Mr. HALLETT. I wish barely to make one 
 statement. I wish to say, under a law in our 
 Constitution, that that gentleman, or any citizen 
 may be admitted for an examination to the bar 
 to-morrow, if he possesses good moral character 
 and general information. 
 
 Mr. SCHOULER. Suppose he should not be 
 able to pass an examination. What would be 
 the case then ? But, to pass from this, I say that 
 that profession is the only profession in this 
 whole Commonwealth that approaches anything 
 like monopoly ; and I have noticed in the Revised 
 Statutes, that they have a lien law whereby they 
 can keep the money of their clients, and pay 
 themselves, before they pay over to their clients 
 the money which they may collect for them. I 
 say, if you pass this general law, you make all 
 the corporations in existence monopolies, and 
 you are shutting down the gate in such a man 
 ner, that these corporations will stand without 
 any rivals and without any competition. They 
 have got their charters, there they will remain, 
 and the Commonwealth will grant no more. I 
 desire to know if this Convention is ready to as 
 sert and maintain such a doctrine. I desire to 
 know if we are intending to pass a law which 
 will give to the banks that have been incorpo 
 rated within the last two years, and those which 
 have had their charters renewed, the whole mo 
 nopoly of banking in the Commonwealth for the 
 next twenty- five years. The gentleman says that 
 all the new banks can come under the general 
 
 banking law. The people do not want it. It is 
 well known, at least financiers tell me so, that 
 the banks under the general banking law cannot 
 compete with those under special charters. Last 
 year, or the year before, the legislature amended 
 the law, by saying, that those banks that went 
 into operation under the general law, should not 
 pay any taxes for it. They offered this as an 
 inducement, but you cannot find any company 
 in Massachusetts that would avail themselves of 
 this advantage. So it was in regard to the gen 
 eral corporation act for manufacturing, which 
 was passed two years ago. There are a very few, 
 I believe, that have availed themselves of these 
 privileges ; merely enough to make exceptions to 
 the rule. As a general thing, the people of Mas 
 sachusetts are not in favor of that law. I judge 
 so from the fact that persons have come up to the 
 legislature to get their charters, entirely disre 
 garding the general corporation act. These are 
 the general reasons why I am opposed to placing 
 in our Constitution this provision, although other 
 States may have passed, as we all know, general 
 corporation acts, still, I believe our system is bet 
 ter than any which has been adopted anywhere 
 else ; and, I think all the time expended in legis 
 lating upon and investigating this matter of in 
 corporations, is time well spent. I would warn 
 this Convention against incorporating a provision 
 into our Constitution which will give to irrespon 
 sible persons the power of forming themselves 
 into corporations, and in that way getting rid of 
 individual responsibility for their debts. The 
 gentleman from Charlestown (Mr. Frothingham) 
 is an anti-corporation man. I recollect that, in 
 1844, when we had that long debate about the 
 camels, down in Nantucket, that the gentleman 
 from Charlestown was very earnest in his opposi 
 tion to all kinds of corporations at that time, and 
 particularly against those small corporations. He 
 has changed his ground altogether. He is now 
 in favor of every-body forming themselves into 
 corporations, and of throwing the whole business 
 of the Commonwealth into the power of citizens 
 who form themselves into corporations, and of 
 placing them above the people, and the representa 
 tives of the people. 
 
 Mr. FROTHINGHAM. The gentleman very 
 truly says, that in some year, before the legisla 
 ture, I had the honor of making an argument 
 against granting special acts of incorporation. I 
 have now very feebly made an argument against 
 such special acts. I am in favor of granting now 
 to all, those privileges which so large a body of 
 our fellow-citizens have. 
 
 Mr. SCHOULER. The gentleman s explana 
 tion amounts to this, that he was opposed to that 
 
59th day.] 
 
 GENERAL LAWS FOR CORPORATIONS. 
 
 59 
 
 Saturday/ 
 
 WALKER SARGENT. 
 
 [July 16th. 
 
 camel corporation, because it was a special corpo 
 ration. I understood his argument to be, and I 
 believe it was always so argued on that side, that 
 corporations of that kind were unnecessary, and 
 -I wish to know whether the gentleman would be 
 in favor of the camel corporation, if it was incor 
 porated under the general law. What difference 
 is there in principle, between a special and general 
 act? If a corporation is good, it is good by a 
 special act. There are certain kinds of corpora 
 tions that require a great deal of capital and asso 
 ciated wealth, in order to carry on their business, 
 and it is necessary that they should have an act 
 of incorporation ; but, before that grant is given, 
 I would have every one of them come up here 
 before the representatives of the people, and make 
 out a full and clear case, before an act of incor 
 poration should be given them. 
 
 Mr. WALKER, of North Brookfield. This 
 question is one of great interest in this Common 
 wealth ; it is peculiarly a Massachusetts question, 
 because no other State in the Union, and I sup 
 pose no other country in the world, has so many 
 incorporated industrial institutions as the State 
 of Massachusetts, or so much wealth embarked 
 in enterprises of a corporate character ; and, there 
 fore, the question is one of very great importance. 
 In most other states and countries, corporations 
 are resorted to as a necessity ; with us they are 
 mostly used as a matter of convenience. No one 
 will pretend that nine-tenths of all the projects 
 now carried on by corporations, could not be car 
 ried on by individuals. I think the gentleman 
 from Boston, the other day, told us that one pri 
 vate firm in England owned more spindles than 
 there are in the city of Lowell. Probably the 
 founders of that establishment were poor men in 
 the beginning, and that they attracted to them 
 selves, by a necessary law, all the capital they 
 needed, because they were men of character and 
 ability. Such persons always attract to them 
 selves all the capital they require ; because capi 
 tal needs talent and skill, as much as talent and 
 skill need capital. From the statistics contained 
 in our document, No. 37, the best deductions we 
 can make, I think, will show that something like 
 $250,000,000, or $300,000,000 of capital in this 
 Commonwealth, are locked up in corporations. 
 That is about half of the wealth of the State. 
 
 I suppose it is a foregone conclusion, that Mas 
 sachusetts is to try this experiment to its fullest 
 extent, and that we are to illustrate what the ad 
 vantages or disadvantages of corporations may 
 be. Corporations now, with us, have the ascen 
 dency. I ask any man to say, if he believes that 
 any measure of legislation could be carried in this 
 State, which was generally offensive to the corpo 
 
 rations of the Commonwealth ? It is very rarely 
 the case that we do not have a majority in the 
 legislature, who are either presidents, directors, or 
 stockholders in incorporated companies. This is a 
 fact of very grave importance. 
 
 Mr. SARGENT, of Cambridge. I would like, 
 with permission, to ask the gentleman from North 
 Brookfield, if the secret ballot law was carried by 
 the influence of corporations in this Common 
 wealth. 
 
 Mr. WALKER. I have reason to think that 
 the corporations did not have a chance to rally 
 and combine their forces on that question, either 
 for or against it. 
 
 Now, if it be a foregone conclusion if this cor 
 poration principle is to be carried out to its full 
 and legitimate result, as I fully believe it is in 
 Massachusetts, then I am decidedly in favor of 
 the resolution before us. I think that is a resolu 
 tion which we ought to pass. I will give an 
 anecdote, in illustration of the reason why I am in 
 favor of it. In 1850, certain tailors of the city of 
 Boston, I think to the number of twenty or 
 thirty, came before the legislature, and asked to 
 be incorporated, that they might have an oppor 
 tunity to put their small capitals together, and 
 unite in the manufacture and sale of clothing. 
 They came before the legislature, and it was 
 shown that they were honest, industrious, and 
 deserving men. I think their united capital 
 amounted to only fifteen thousand dollars. What 
 answer did they receive to their application ? 
 They got a negative. " You cannot be incor 
 porated," said the legislature. At that very mo 
 ment, there was a project before the same body, to 
 increase the capital of a corporation, already 
 amounting to two millions, to three millions. 
 That was granted ; that was worthy the attention 
 of the law-makers of Massachusetts. That peti 
 tion came from great capitalists. Laborers came 
 forward and asked to be incorporated, and it 
 could not be done. They were men of no influ 
 ence, comparatively, and they could not have the 
 privilege of xmiting their capital together, so as to 
 increase the benefits of their own industry, and 
 obtain a profit on the sale of their own products. 
 
 Now, Sir, for one, I must, before voting on this 
 subject, say, that if this policy is to be pursued, if 
 this grand corporation system is to be continued, 
 I think it should be extended to all, so that all 
 may participate in it equally, and the privilege of 
 incorporation should not be a matter of favor, but 
 of general right. I have great doubts as to the 
 expediency of creating these business corporations, 
 either by general or special laws. I do not be 
 lieve in the utility or rightfulness of the system 
 itself ; I do not believe in the necessity for it, as 
 
60 
 
 GENERAL LAWS FOR CORPORATIONS. 
 
 [59th day. 
 
 Saturday,] 
 
 WALKER. 
 
 [July 16th. 
 
 suggested by the gentleman from Charlestown, 
 (Mr. Frothingham). I think there is no force in 
 his argument, because we have had, for many 
 years, an act for general copartnership, by which 
 all persons of small means may unite together, 
 and carry on business, and that without endan 
 gering anything more than the amount they put 
 in. That law is neglected, because the whole at 
 tention is turned towards corporations. Yet the 
 law was a good one. It was amended in 1851, 
 and made still better, so that now men may 
 unite in carrying on business, with all the facil 
 ities they would derive from incorporations. 
 Under our present law, business men have the 
 advantages which result from the combination of 
 capital, and of acting with others without endan 
 gering anything more than they invest in the 
 concern. Besides, for the largest manufacturing 
 operations, it is evident corporations are not 
 necessary ; for in the neighboring State of Rhode 
 Island, where manufacturing industry has been 
 more profitable, in proportion to its extent, even 
 than in Massachusetts, they have, as a general 
 fact, no corporations. 
 
 Sufficient capital can always be obtained, with 
 out the aid of corporate powers and privileges, for 
 all useful and profitable undertakings. 
 
 I have said that I object to the whole experi 
 ment. I do not believe that the final result of it 
 will be beneficial. I wish it understood, how 
 ever, that when I speak of corporations in this 
 connection, I mean those of a business character. 
 Corporations for other purposes for railroads, 
 banks, and insurance companies, public charities, 
 and the like are, if not in all cases a matter of 
 necessity, are at least a great public convenience, 
 and do not interfere with the general business 
 and ordinary pursuits of the people of the Com 
 monwealth ; but, for all other purposes, I do ob 
 ject to them. 
 
 The first reason is, that corporations change 
 the relation of man to wealth. When a man has 
 his property in his own hands, and manages it 
 himself, he is responsible for the manner in which 
 he does it. He does not delegate his power over 
 it to anybody else. But when the management of 
 property is put into the hands of corporations, the 
 many delegate the power of managing it to the 
 few ; and that is an important consideration, when 
 we reflect that nearly half of the wealth in this 
 State has passed from the hands of individuals 
 into the hands of incorporated companies. It 
 aggregates power, of course, and necessarily, all 
 the property of the Commonwealth, included in 
 these corporations, must be put into the hands of 
 a very few men, having absolute power over it 
 for the time being. Hence, the agent of a factory, 
 
 or a corporation of any kind, has absolute control 
 over all persons connected with that corporation. 
 This, I hold, to be one of the bad consequences of 
 incorporated wealth. 
 
 Another objection I have to this system is, that it 
 changes the moral responsibility of capital. When 
 a man is managing his own property, he is held 
 morally responsible for the manner in which he 
 conducts his business, and for the manner in 
 which he treats the persons whom he employs. 
 If he is unjust, or cruel, he will feel the rebuke 
 of an indignant public sentiment, under which he 
 will quail. But it is not so in corporations. All 
 this moral responsibility is removed. I will illus 
 trate my meaning in this manner : Suppose one 
 of the employees, a young woman, in one of the 
 factories, should feel that she was injured or 
 wronged, by some of the arrangements of one of 
 the mills, and she should seek redress. Suppose 
 she goes to the overseer of the room and applies 
 to him. What does he say ? "I am not respon 
 sible ; you must look to the superintendent of the 
 mill." And what does the latter say ? "I am 
 not responsible for this ; you must look to the 
 agent of the factory." Suppose she should ven 
 ture to go to the agent. What does he say ? If 
 he deigns to say anything, he will tell her 
 that " the board of directors are responsible for 
 all this matter." The board ! and so the poor 
 girl has, at least, run her head against " a board." 
 " We act," says the agent, " under general rules. 
 These rules are established by the board of direct 
 ors, and the agent has no responsibility in the 
 case." Then what is her redress ? If she goes 
 to the directors, what answer does she get ? Why, 
 that they " act for the stockholders, and are bound 
 to consult their interests, and those interests re 
 quire them to run the factory thirteen or fourteen 
 hours per day. They must act for the interest of 
 the corporation." Suppose, farther, that an ap 
 plication for redress were made to individual 
 stockholders, what would be their reply. Very 
 certainly they would say : " We have no per 
 sonal responsibility in the matter ; we submit the 
 entire management of the factory to our directors 
 and those they employ." This is a fair illustra 
 tion of the matter, and it clearly shows that the 
 moral responsibility of wealth is destroyed by 
 being aggregated into corporations, of which it is 
 said, with terrible truthfulness, that " they have 
 no souls." 
 
 In the next place, corporations destroy the 
 natural relation between capital and labor. 
 The moment we incorporate capital, and refuse 
 to incorporate labor, that moment we change 
 the relative position of the two. And what 
 is the consequence? We give capital greatly 
 
59th day.] 
 
 GENERAL LAWS FOR CORPORATIONS. 
 
 61 
 
 Saturday,] 
 
 SCHOULER WALKEB. 
 
 [July 16th. 
 
 the advantage. We never incorporate laborers. 
 Such a thing is unheard of, and such a thing 
 would not be tolerated. And, since we do not do 
 that, it is quite clear that we should not incorpo 
 rate capital, if we would leave the two parties on 
 an equal footing. Capital and labor are, in all 
 cases, natural copartners in production, and natu 
 ral competitors for profits. The relation between 
 capital and labor we cannot destroy, but that 
 competition we may interfere with, and we do so 
 if we incorporate capital and do not give an equal 
 advantage to labor. 
 
 Again, by this system we reduce the number 
 of freeholders, and that, I maintain, is a great evil. 
 When persons carry on their own business, they 
 will live, generally, in their own houses. When 
 they are employed by corporations, almost uni 
 versally, they are tenants at will. I submit, that 
 in this Commonwealth, this has become a matter of 
 great importance. Thousands, and tens of thou 
 sands, who are now mere tenants, would be free 
 holders, were it not for corporations. For in 
 stance, take one of our manufacturing cities, 
 where the business is carried on by corporations, 
 and what a large proportion of all the dwellings 
 are owned by these great companies, and what a 
 large part of all the inhabitants hold their tene 
 ments at the will of a factory agent. On the 
 ( other hand, by way of contrast, take the city of 
 Worcester ; it has not a single corporation there 
 for any industrial purpose, and yet it is the most 
 flourishing city in this Commonwealth, altogeth 
 er. 
 
 Mr. SCHOULEK. I would like to ask the 
 gentleman from North Brookfield, if the city of 
 Worcester has not been built up by corporations, 
 and what it would be to-day, if it had not been 
 for railroad corporations ? 
 
 Mr. WALKER. I have not objected to rail 
 road corporations. 
 
 Mr. SCHOULER. The gentleman spoke of 
 corporations. 
 
 Mr. WALKER. But I have not objected to 
 railroad companies, banking, or insurance com 
 panies. The only point of which I am speaking, 
 and the only thing to which I object is, the estab 
 lishment of corporations for carrying on the 
 common industri al business of the country. Now, 
 take the city of Worcester, and, as I have said, it 
 is far the most flourishing city in the Common 
 wealth ; and the great cause of their success and 
 prosperity is, that they have mechanics who do 
 business on their own account, and who, when 
 they acquire wealth, buy a piece of land and 
 build a house upon it. They are independent 
 men, and act as they choose, and vote as they 
 please. 
 
 On the other hand, take a city whose industry 
 is carried on by corporations, and how different is 
 the position and characteristics of its population. 
 I will make no invidious comparisons, for the 
 facts are well known to all intelligent persons. 
 
 Again, Sir, this system has concentrated our 
 manufacturing business, to a wonderful extent, 
 in the cities, and I insist that that is a great evil. 
 I maintain that, if it had not been for this corpo 
 ration system, our manufactures would not have 
 been concentrated to the extent they have, in 
 cities, but would have been scattered all over the 
 State, wherever there was a waterfall to be put to 
 use ; and that would have been much better for 
 the Commonwealth, than the present state of 
 things. One great object of bringing these great 
 corporations together in a large city, is this : In 
 the first place, when one of these cities is to be 
 built, the land is all bought up, and monopolized. 
 One single corporation in this Commonwealth, 
 purchased 1,400 acres of land to start with, and 
 now, if that land is sold at only ten cents a foot 
 and much of it will be sold for a dollar a foot it 
 will bring more than six millions of dollars. 
 Now, Sir, all the rise of that land, instead of going 
 to the benefit of the workmen, as it should, goes 
 to build up the property of the corporation. 
 That, I maintain, is a serious objection, and one 
 that does not exist where manufactories grow up 
 naturally under private enterprise. 
 
 And, I object, again, that this system necessarily 
 destroys private enterprise, by monopolizing the 
 money and business of the country. Every-body 
 knows, that the moment there is a great pressure 
 in the money market, these corporations can 
 control a great part of all the capital of both city 
 and country, and I have been rejoiced, when 
 passing through Pearl and State Streets, in this 
 city, in a time of pressure in the money market, 
 to find that the business men were beginning to 
 wake up to the fact that they are being crushed 
 under this tremendous system of monopoly. 
 
 Ordinary business men cannot command 
 money, when corporations can. For, in the first 
 place, the men who enter into these corporations 
 are men of great capital, and have great personal 
 influence in the money market ; and, in the second 
 place, as they can create the influence of great 
 manufacturing and banking corporations, they 
 can and do, readily absorb a great part of all the 
 circulating medium of the State. Business men 
 begin to understand all this, and to see that pri 
 vate enterprise is greatly crippled and impeded 
 by this corporation system. Public sentiment, 
 among that class of men, is becoming adverse to 
 it, and will demand, ere long, its overthrow. 
 They will not, and ought not, to be willing 
 
62 
 
 GENERAL LAWS FOR CORPORATIONS. 
 
 [59th day. 
 
 Saturday,] 
 
 HALE WALKER GRAY. 
 
 [July 16th. 
 
 always to compete with these vast aggregations of 
 wealth. 
 
 Another objection is, that this system involves, 
 to some extent, the evils of absenteeism, of which 
 we have heard so much in other countries. 
 Is it not, to a wonderful extent, the case that 
 those who own the wealth in the manufacturing 
 towns, do not live in these towns ? Are there not 
 millions, and tens of millions I do not know but 
 that I may say hundreds of millions of property 
 owned in towns in which the owners do not live. 
 This is certainly the case ; and what is the conse 
 quence ? 
 
 Mr. HALE, of Bridgewater. I wish to inquire 
 if there is any injury resulting to these towns, 
 because persons who do not live there, have in 
 vested their money there ? 
 
 Mr. WALKER. It operates greatly to the 
 injury of these towns, that the profits of capital 
 are all expended out of them, just as it does in 
 Ireland. The great curse in Ireland is, that those 
 who make their money out of the industry of 
 that country, spend it in England, on the conti 
 nent, or wherever else they please ; and conse 
 quently Ireland does not improve and prosper, as it 
 should. That is the effect in these towns, they do 
 not have their legitimate growth and develop 
 ment ; it is so everywhere. I do not think this 
 is so strong an objection as some that may be 
 urged, but still it is an objection, and it is one that 
 will be felt more, years hence, than it is now. I 
 will remark, Sir, that the effects of our corporate 
 system are not very fully developed, as yet we 
 are only on the threshold we have only the 
 poetry of it now, but we shall have the prose 
 we shall have sad results from this system ulti 
 mately. 
 
 This system of corporations is nothing more 
 nor less than a moneyed feudalism ; it has an 
 effect on our civilization analogous to that which 
 feudalism had in past ages. It concentrates vast 
 masses of wealth, it places immense power in a 
 few hands, and gives to both a permanent exist 
 ence. Corporations never die. The individual 
 manufacturer dies, his great property is divided. 
 If he has been a bad man, there is a chance for 
 hope that somebody else of a better character will 
 take possession of his wealth, and that it will 
 find investment in various channels of enterprise ; 
 but it is not so with corporations. What is sealed 
 up there, is sealed up forever, like an hereditary 
 entail. 
 
 But, Sir, time is precious, and I will not extend 
 my remarks. This system will eventually work 
 out its results ; it will eventually fail I have 
 no doubt about it. I hope gentlemen will not 
 feel any unnecessary alarm on account of my 
 
 prediction, for I do not expect that it will be ful 
 filled in the present generation. But I am just 
 as certain of it ultimately, as that I am now stand 
 ing in this hall. The system must eventually 
 break down, because, according to a simple law 
 of political economy, individual enterprise will 
 outstrip corporations. It is more economical, 
 more vigilant, more shrewd. We have, by State 
 legislation, built up very successfully a great sys 
 tem of corporations, and national legislation has , 
 fostered their interests, but, the time is coming 
 when these institutions will be brought into a 
 full and fair competition with unrestricted com 
 mercial and manufacturing industry, throughout 
 the world, and that competition these corporations 
 cannot stand. They conduct their transactions in 
 such an expensive manner, that it more than 
 counteracts all the advantages of their special 
 privileges. 
 
 There is a gentleman on this floor who could bear 
 witness to the truth of this ; he knows full well how 
 enormous are the salaries of the various officers of 
 these corporations, and how large a share of all 
 the profits is swallowed up by them. In one case, 
 he has stated that the salaries of a certain corpo 
 ration in this neighborhood, and that in no wise 
 a peculiar one, are equal, in the aggregate, to one 
 cent per pound on all the cotton spun. The salary 
 charges are immense. Five thousand dollars, per 
 haps, for the president, a corresponding salary for 
 treasurer, agent, &c., &c., down through a long cat 
 alogue of officials ; higher salaries than the Com 
 monwealth can, or does afford to pay. These are 
 the reasons why corporations cannot eventually 
 compete with private industry. Their expenses 
 are enormous, and the manner in which their 
 business is conducted, is necessarily wasteful. 
 
 Although they are carried with us to the great 
 est possible perfection, still, even here, they are 
 cumbrous and expensive in their employment of 
 capital, and they will find it out before long, and 
 then the stockholders will sell out to individuals ; 
 there will be no property destroyed there will 
 be no violent revolution everything will gradu 
 ally settle down quietly into its legitimate chan 
 nel, into the hands of private individuals. I will 
 end, as I begun, by saying that it seems to me 
 that we had better make a general law that will 
 provide for the case, as matters now stand in this 
 Commonwealth. 
 
 Mr. GRAY, of Boston. I cannot see any 
 necessity or propriety in inserting either the 
 resolve in its original shape, or as it is proposed 
 to be amended, into the Constitution. Yesterday 
 and I refer to the decision by the way of illus 
 tration, for I have no disposition to reflect upon 
 it, and it would not be in order for me to do so 
 
59th day.] 
 
 GENERAL LAWS FOR CORPORATIONS. 
 
 63 
 
 Saturday,] 
 
 GRAY WHITNEY. 
 
 [July 16th. 
 
 yesterday, in judging whether the legislature 
 should be prohibited from loaning the credit of 
 the State, the Convention decided that it was 
 certainly a very high power to give to the legisla 
 ture, being no less than the control of the whole 
 property of every man in the State. But, after 
 all, it should be intrusted to the hands of the 
 agents or servants of the people, and without re 
 strictions ; but I will say, Sir, that I was against 
 the restriction proposed yesterday, and I wished 
 that the resolve could have arrived to its third 
 reading, chiefly, though not solely, with the hope 
 that some amendment might be proposed, which 
 should forbid towns to exercise a like control ; 
 but that is not exactly to the point here. It is 
 unnecessary for me to say whether I think that 
 the plan of a general framework established by a 
 general law, is the best plan, or not the best plan ; 
 it is unnecessary for me, either to take issue with 
 my colleague, or to agree with him as to that 
 matter, because, Sir, I go behind all that. Why, 
 Sir, admitting, if you please, that the plan of 
 granting special acts of incorporation is wrong, 
 and that we should make a general law by which 
 people could come in and make corporations for 
 themselves, why not leave it in the hands of the 
 legislature ? The legislature have shown them 
 selves entitled to the confidence of some gentle 
 men who have spoken before me, in establishing 
 that system ; and why should we not be willing 
 to let things stand as they do ? Why should we 
 tie up their hands while the experiment is in 
 process ? Now, Sir, as to granting special acts 
 for corporations, we are told that millions of 
 property is in the hands of corporations, and of 
 its effect upon the labor of the community, and 
 the personal relations of men. Whatever results 
 from corporations, results from anything that is a 
 corporation, whether individuals make it them 
 selves, under a general law, or the general court 
 makes it for them, by a special act. I will take 
 occasion here, to say, that I have always acted 
 upon one rule and I humbly think it is a good 
 one, after much reflection, and some opportunities 
 of observation and that is, to be very liberal in 
 granting charters of incorporation, but very care 
 ful in reserving control over those charters ; and 
 that has been the policy of the legislature of late 
 years. The 44th chapter of the Revised Statutes 
 gave the legislature power over all charters. I do 
 not wish to disturb that, for my part; and if 
 gentlemen wish to stereotype it in the Constitu 
 tion, I do not think that I should have any objec 
 tion certainly, none strikes me now. I think 
 more especially should some such provision be 
 made in reference to municipal corporations ; for, 
 a little while ago, the charter of the city of Lynn 
 
 came very near slipping through, without any 
 such effectual provision, and upon a different 
 footing from all the other city charters in the 
 Commonwealth. 
 
 I come back, after all, to a repetition of my 
 first reason, that the matter had better be left to 
 the general court. One or two years since, they 
 thought it would be best to pass general acts. 
 The legislature have done this, and they will per 
 severe in it, unless the wants and interests of the 
 people require otherwise. I am by no means pre 
 pared to say, that general acts everything, of 
 course, depends upon what their provisions are 
 will be the best, the most convenient, and the 
 most proper way of proceeding, in regard to this 
 matter. I have full confidence in the wisdom of 
 the legislature, that they will be quite as good 
 judges as I am. As to the general effect of cor 
 porations, all that I have to say is, that if the 
 property of the State is locked up in their hands, 
 the legislature keeps the key, and I presume 
 always will keep it ; and I have no objection that 
 it should be so ; but, I think that we may safely 
 leave the matter as it stands in the Constitution. 
 We should probably have no greater evils than we 
 have had ; and, if any new evils should appear 
 from leaving the legislature its present license, I 
 think the people will do what is necessary to re 
 strict them. If that should be so, and if some 
 future exigency should arise so as to require their 
 action, I would not tie up their hands either way 
 upon the subject irrevocably. 
 
 Mr. WHITNEY, of Conway. I know, Sir, 
 that the Convention are impatient to take the 
 question. I am fully aware that there is running 
 through this Convention a strong desire upon the 
 part of many members, to limit our discussions, so 
 that we may act, as soon as possible, upon the 
 questions which yet remain to be acted upon by 
 this body ; but I desire to say a few words, and I 
 think that I have special claims in this particular 
 case for a few moments of your time, before final 
 action is taken upon this question. I had the 
 honor to be upon the Committee who reported the 
 original resolution, out of which the amendment, 
 now under discussion, has grown, and I regard 
 this subject as one of the most important subjects 
 that can come before this Convention. I do not 
 agree with those gentlemen who say that our sys 
 tem in Massachusetts, hitherto, has been a perfect 
 system, although it has produced some very good 
 results. The gentleman from Boston, on my 
 right, (Mr. Schouler,) and the one before me, 
 (Mr. Gray,) say that the legislature, in granting 
 special acts of incorporation, has been careful to 
 investigate the cases, and to keep the control of 
 these companies. I grant that ; but would it have 
 
64 
 
 GENERAL LAWS FOR CORPORATIONS. 
 
 [59th day. 
 
 Saturday,] 
 
 WHITNEY. 
 
 [July 16th. 
 
 been otherwise under a general law ? The gen 
 tleman on my right says, that under a general law, 
 any special breach of that general act by a partic 
 ular corporation, would necessitate a repeal of the 
 general law. If that gentleman had reflected 
 with his usual sagacity and judgment, he has too 
 much good sense not to know better than to have 
 made such an allegation here. The gentleman 
 knows, full well, that the legislature can pass a 
 general remedial or penal law, applicable to cor 
 porations as well as to individuals. A general law 
 can be passed, by which, if companies violate 
 their charters in any single particular, either by 
 working more hours in a day than your law pro 
 vides for, or in any other way, by any breach of 
 right, justice, or law, the corporation can be 
 made indictable, and punished, by taking away 
 their charter ; or, by punishment of their directors 
 and stockholders, they can be made amenable. 
 If the gentleman had reflected for a moment, he 
 would have seen that his objection was ground 
 less. I would ask gentlemen here, to bring this 
 matter home, and see what we have here in hand. 
 The gentleman from North Brookfield, (Mr. 
 Walker,) has argued the general doctrine of cor 
 porations. I will agree with him in the main ; 
 but that is not the question here, before the Con 
 vention. I take it for granted, that the advanta 
 ges growing out of associations under the form of 
 corporations, are such, that the system is to be 
 continued, to some extent, in this Commonwealth, 
 under one form and mode of making laws, or 
 another ; and now, the question is, to what extent 
 it shall be continued, and how ? whether by a 
 system of special acts, or by general laws ? not 
 whether you will apply all the principles of cor 
 porate action, by a general law, to mechanics, and 
 tavern-keepers ; but, in what manner shall it be 
 applied, in all cases, where its application is prop 
 er ? Shall the legislature assume to deal out these 
 acts to a few of our citizens, as special favors, 
 when they belong, according to all the principles 
 of your original Constitution, and according to 
 all the principles of justice, to the whole people 
 of the Commonwealth, as a right ? I undertake 
 to say, that gentlemen have not met the issue 
 here. It is not what the general law shall be ; 
 but, whether there shall be a general law, open 
 and accessible to every citizen of the Common 
 wealth alike ? whether it shall be, in the lan 
 guage of the declaration of your Constitution, in 
 article ten, of the Bill of Rights, which says that, 
 " each individual of the society has a right to be 
 protected by it in the enjoyment of his life, liber 
 ty, and property, according to standing laws ?" 
 Now, Sir, this is a property question. The ques 
 tion is, whether all the citizens of the Common 
 
 wealth shall have the same rights and privileges to 
 associate together for the purpose of acquiring 
 property ? And I undertake to say that you violate 
 the principles of equality, and right, and justice, 
 and the declaration of the present Constitution, as 
 much in denying me the right to associate with 
 my fellow, under a general law for the advan 
 tages of corporate action, as though in a case where 
 my life, or my liberty, was concerned. You 
 should not deny me the same right of trial which 
 you give to other citizens. I claim, that whatever 
 right you grant to any other man to acquire prop 
 erty, either by a special charter or by a general 
 law, you should grant me a like privilege, and a 
 like opportunity. That, Mr. President, is the 
 question before us. 
 
 I took down some of the remarks of the gen 
 tleman this morning, with a view to reply to 
 them, and if the Convention will indulge me for 
 a moment, I will briefly refer to them. The gen 
 tleman from Boston who first spoke, says that this 
 proposition favors corporations. That may, or 
 may not be so. It depends upon the general law 
 that you may make. If it favors corporations, 
 with proper and suitable restrictions, I am in 
 favor of it ; for I take issue with gentlemen who 
 say that corporations are necessarily monopolies. 
 They are only monopolies inasmuch as you make 
 them exclusive. They are monopolies under your 
 system of special charters ; but, open them to 
 every citizen, and they cease to be monopolies. 
 A monopoly is to give to a man the control of the 
 manufacture of any particular article, or to give 
 to him exclusively a market for the sale of any 
 particular thing ; which privilege you deny to 
 other men. In this exclusive privilege consists 
 the monopoly. Now, if this leads to the increase 
 of corporations, properly constituted and guarded, 
 and so created that they shall not interfere with 
 individual rights, or the rights of towns of this 
 Commonwealth, then I go for the creation of such 
 corporations. Every gentleman is aware, that in 
 the neighboring States, the people are engaged in 
 diversified and prospering manufactures, built up 
 under a self- associating system of general corpo 
 ration laws, which have greatly promoted the 
 wealth of the citizens of those States, individually, 
 and in contributing to their individual wealth, has 
 contributed to the aggregate wealth of these several 
 States ; while in Massashusetts, we have trampled 
 down enterprise, by the delays and fluctuations 
 of our legislation, sometimes denying charters, 
 and sometimes granting them with great liberality, 
 while other States have left their citizens free to 
 incorporate themselves. Look at the State of 
 Connecticut, for example ; and, not wits tanding 
 our Lowell, and Salem, and other large manu- 
 
59th day.] 
 
 GENERAL LAWS FOR CORPORATIONS. 
 
 65 
 
 Saturday,] 
 
 WHITNEY SCHOULER. 
 
 [July 16th. 
 
 facturing towns, the fact appears that they manu 
 facture more on the head, in regard to population, 
 than we do, with all our privileged corporations 
 I believe largely more. Sir, they have gone into 
 every kind of manufacture, from the very small 
 est pin, and hook and eye, to the fabrics them 
 selves which these little articles are used to fasten. 
 The State of Connecticut is dotted all over with 
 manufactories, which have grown up under the 
 general law of incorporations in that State, which 
 has never Avorked any evil to anybody. Half a 
 dozen men can make themselves into a corpora 
 tion there, and go to work any day. But how is 
 it here ? If half a dozen men want to go to 
 work to-morrow to manufacture pins and needles, 
 they have to wait until next January, and then 
 they have to come to this House and satisfy the 
 legislature that they have a kind of claim to enter 
 into this sort of business. Sir, who can truly 
 and reasonably say, that the legislature, as a 
 body, are better judges of what individuals can 
 do for their own profit and advantage, than the in 
 dividuals are themselves ? Who would take the 
 opinion of the legislature, in regard to a piece of 
 paper which he wanted to get discounted at a 
 bank ? Such a system of law, Sir, is not founded 
 either on equity or common sense. It is good 
 for nothing. I know well enough how charters 
 are obtained here. We all know that our legis 
 lative opinion and action is variable on this sub 
 ject. Some legislatures are in favor of almost all 
 incorporations, and freely grant special charters, 
 while other legislatures withhold acts of incorpo 
 ration altogether. But, let me go back a moment 
 to the manufacture of needles. If I was in the 
 State of Connecticut, or New York, or Ohio, or 
 in two-thirds of the States of this Union, I could go 
 to the capitalist, if I was a mechanic, and under 
 stood how to make these needles, and could asso 
 ciate with him, putting in my hundred dollars, 
 and my skill, and he, perhaps, his thousand dol 
 lars, and we could start a manufacturing estab 
 lishment to-morrow. How is it here ? Why, 
 Sir, as I before said, we must wait until January 
 next, and then we must come up here by a law 
 yer, and go before a committee of the legislature. 
 We must first satisfy them that it is a good en 
 terprise. We must fee a lawyer at a nameless 
 amount sometimes more, and sometimes less 
 to present the case before your committee. If 
 we happen to meet with a man desiring a like 
 privilege, for the manufacture of some other 
 article, why we may join him, and drive a bar 
 gain together, with some members of the legis 
 lature, the friends of one measure joining the 
 friends of the other to insure the passage of 
 both, and possibly by the end of next March, we 
 
 5 3 
 
 may get our charter granted. But, Sir, if I was 
 a party concerned, and knew the business, and 
 wanted to make money speedily, I could slip into 
 Connecticut and start a manufactory, and be 
 come well established, while other parties were 
 hanging on here in the endeavor to obtain a 
 charter. 
 
 Mr. SCHOULER. I would ask the gentleman 
 from Conway, if he is not aware, that we have a 
 general law in the State of Massachusetts, in re 
 gard to corporations. 
 
 Mr. WHITNEY. Yes, Sir, we have a law, 
 and it is a general law, and the gentleman will 
 find that there are nearly fifty corporations organ 
 ized under that law ; and, if you go into the 
 interior towns of the Commonwealth, you will 
 find that they are doing a successful business un 
 der that law. I grant that ; but they come here, 
 and ask for special charters, he says, notwithstand 
 ing, and for what purpose ? Why, in order that 
 they may dodge the wholesome provisions of that 
 law. That law requires that the name of every 
 stockholder in a corporation, shall be entered in 
 the books of the town clerk, where the corpora 
 tion exists, in order that it may be known whether 
 the corporators are solid men, or men of straw. 
 It is also necessary, that when any transfer of 
 stock is made, such transfer should be entered in 
 a similar manner, in order that the public may 
 not be cheated. And now, Sir, that law is in 
 successful operation, and nearly fifty small man 
 ufacturing establishments are in operation under 
 it. Possibly some eight or ten of them, have since 
 incorporated under special charters. A gentle 
 man from Springfield, told me, a day or two ago, 
 and he is a lai ge holder in corporations, and knows 
 pretty well how the thing works. He told me, 
 that while he favored a general law, on the ground 
 that it was better for all, and more equal yet, there 
 were sometimes peculiar advantages in having a 
 special charter. As an instance of this, he men 
 tioned, that being desirous of forming a steam 
 boat company in Connecticut, instead of organ 
 izing it under the general law, he happened to 
 find an old special charter, and had the company 
 organized under it, simply because it was less 
 restrictive, and attended with less trouble, and the 
 charter was more liberal than the general law. 
 Nevertheless, said he, the general law would 
 have answered all our purposes, and we should 
 have organized under it, had we not found this 
 old special charter. 
 
 The main objection I have to these special char 
 ters is, that they interfere with private enterprise, 
 whereas, a general law places all upon the same 
 level. There is no fear of getting a general law, 
 that will interfere with private enterprise, half as 
 
66 
 
 GENERAL LAWS FOR CORPORATIONS. 
 
 [59th day. 
 
 Saturday,] 
 
 WHITNEY. 
 
 [July 16th. 
 
 much as your special laws will do, because, in pass 
 ing a general law, it is brought to bear upon every 
 member of the legislature. A general law affects 
 the whole community ; and, as it is good or bad, 
 so each member must answer to his constituents, 
 according to his vote. But, when a member gives 
 his vote in favor of a special law, which is but 
 of limited application, his constituents probably 
 know nothing about it, and, if they did, they 
 might not care about it, unless they were particu 
 larly interested ti-iiaselves. In such case, a 
 vote costs a mem>~r nothing ; and, as the gentle 
 man from Taunt :>u said, the other day, every-body 
 knows that there i* u predisposition in the human 
 heart to accommodate a neighbor, when a man 
 can do it so easily and cheaply as by giving a vote 
 that will not bring himself into conflict with 
 others. 13 at, in case of a general law, applicable 
 throughout the Commonwealth, and to bear upon 
 all parties and all sections of the Commonwealth 
 equally, it would be matter of general concern 
 ment, and men would bring their minds to bear 
 upon it, and hence it would, in all probability, 
 be the best law that could be framed. 
 
 The gentleman says, that those parties desiring 
 charters, should come before the legislature and 
 make out a case, before they should obtain one. I 
 take issue with the gentleman there. There is in 
 my town a cutlery establishment, which was 
 founded last year under our general law, and it 
 was formed by mechanics and artisans ; men 
 who were at work for a wealthy individual ; and 
 they came up here and petitioned to be incorpo 
 rated in a town on the eastern side of the Con 
 necticut River, but they failed to obtain their 
 charter. Why did they fail ? Because, they were 
 poor mechanics, and could not reach those higher 
 sources of influence. They did not obtain their 
 special charter ; but, since the general law was 
 enacted, extending the right to individuals to 
 self-incorporate, whether possessed of much or 
 little property, these men came together and put 
 in the little money which they had, and became 
 stockholders in that corporation, and are now 
 doing a good business, manufacturing, so far as I 
 can learn, the best cutlery that is made in the 
 State of Massachusetts. Now, Sir, I undertake 
 to say, that these men should have that right ; 
 that you should not grant to the wealthy capital 
 ist a special privilege of corporate action, and deny 
 to the laborer the right to associate with his fellow 
 laborer, under a general law. 
 
 Something has been said, in the course of tins 
 debate, by gentlemen who spoke when the sub 
 ject was under consideration the other day, about 
 the danger of arraying corporate wealth against 
 your amended Constitution. I wish to allude to 
 
 this, in passing, as I thought it possible that it 
 might have a little influence upon some reformers 
 in this Convention. For myself, I do not believe 
 that that intimation is entitled to any weight 
 whatever. I do not think that we sit here legis 
 lating under the fear of corporate wealth. I do 
 not believe that we will admit it to ourselves, for 
 a moment. And, if it were true which I trust 
 it is not I believe that corporations, managed by 
 sound and judicious men, will prefer a sound and 
 safe general law for the creation of corporations, 
 rather than a system of special enactment. I 
 believe that corporators generally are in favor of 
 it. I do not believe that they will array them 
 selves as a class, against your principle of general 
 law ; but even if they should so array them 
 selves, who doubts where the victory would 
 rest ? Possibly these corporations may have 
 their influence in this hall ; but, let them once 
 array themselves as a class, against the individual 
 rights of the citizens of Massachusetts, and these 
 corporations will soon go to the wall. I say that 
 there is no fear here; corporators may be too 
 strong for your legislatures, they may be strong 
 in this Convention, but they are not yet stronger 
 than the masses of the people ; and, farther, I 
 hold that this was one of the main reasons why 
 this Convention was called. We have talked 
 about matters here that are small in importance, 
 when compared with this ; and, if you will refer 
 to the document which has been so often referred 
 to I have not examined it myself until this 
 morning, and I regret that I have not had time 
 to examine it better, and I must confess, also, 
 that I was not aware, until now, that it had taken 
 such decided ground upon this subject. I refer 
 to the report of the committee upon the subject 
 of this Convention, written by the able gentle 
 man for Erving, (Mr. Griswold). I say if gen 
 tlemen will refer to this document, which is the 
 report of the joint special committee of the Sen 
 ate and House of Representatives, to whom was 
 referred so much of the governor s message as 
 related to a revision of the Constitution of the 
 State, they will find that this was distinctly put 
 forth as one of the issues before the people, in 
 calling this Convention. I will ask your atten 
 tion for a moment, to what is herein assigned as 
 one of the reasons for bringing this Convention 
 together : 
 
 " The Committee submit, that the Constitution 
 should provide for general instead of special laws. 
 How far this principle shall be made to apply to 
 specific subjects, will remain, of course, for the 
 Convention to settle ; but we have no hesitation 
 in saying, that banks, railroads, manufactures, 
 and insurance companies, may be safely subjected 
 
59th day.] 
 
 GENERAL LAWS FOR CORPORATIONS. 
 
 67 
 
 Saturday,] 
 
 WHITNEY. 
 
 [July 16th. 
 
 to general laws ; and, probably, on more thor 
 ough examination, the principle may be extended 
 much farther. But the principle, even to this 
 extent, once settled, and incorporated into the 
 Constitution of the State, will effect an entire 
 change in our legislation. Our laws will then be 
 more simple, plain, and better understood ; their 
 benefits will not be confined to a few, or to cer 
 tain classes ; but will be equal in their operations, 
 diffusing their benefits among all alike, whether 
 high or low, rich or poor. A large portion of the 
 time now occupied by each session, in passing 
 and amending special acts, will be saved ; thus 
 furnishing, as we have already suggested, a 
 strong reason for limiting the sessions of the leg 
 islature to a period much shorter than is now 
 usually occupied. 
 
 " This important provision should be incorpo 
 rated into the Constitution ; it should become a 
 part of the organic law of the State, a fundamen 
 tal principle in the government, that it may be 
 placed beyond the reach of private and personal 
 interests, or party action, or the fluctuating opin 
 ions of successive legislatures." 
 
 Now, Sir, let me ask if we can take any issue 
 more distinctly than we took this issue there ? Is 
 there any dodging there ? Is there any equivoca 
 tion there ? Did we not put this issue into the 
 canvass, when we appealed to the people for a call 
 of the Convention ? Why, Sir, we put it every 
 where. It was in the Democratic State Address, 
 and in the Free Soil State Address ; and, to-day, 
 it is the most popular question in the Common 
 wealth, in reference to all that we have talked 
 about in regard to this Constitution ? Men of no 
 party have ever raised their voices, in a tangible 
 shape, against the great principle that all your 
 laws creating corporations shall be equal laws. 
 No, Sir ; they do not meet the principle ; they 
 dodge it ; they go round it, and come up here, 
 year after year, and evade it, until nearly one- 
 half of the capital of the State is incorporated 
 capital. Now, Sir, in all conscience, let the in 
 dustry of the men of small means be incorporated 
 also. Let them have like privileges. I do not go 
 for levelling all down to one level, but I go for 
 raising all up to one principle for placing all 
 upon the same platform. " Right " is what I go 
 for. I do believe that there are advantages occa 
 sionally to be gained by incorporations. I do not 
 believe that the time will ever come as some 
 suppose when this corporation system will give 
 way entirely. Corporations may sometimes come 
 into conflict with individual capital and enter 
 prise, but, if they are formed under a general 
 law, then the same law is open to all, and the 
 poor man, with his small means, can combine 
 with others, just as the men can do who are 
 worth their millions. A general law, I hold to be 
 democratic, in every sense of the word. 
 
 The gentleman from Natick, (Mr. Wilson,) told 
 us the other day, that he had known gentlemen 
 come here, year after year, and make their thou 
 sand dollars during the session of the legislature, 
 in lobbying through acts granting special privi 
 leges. And the gentleman from Boston, (Mr. 
 Giles,) whose depth of thought, and of research 
 into the great principles upon which our consti 
 tutional law is founded, is, to my mind, equal to 
 that of any Democrat, or Free Soiler, or man of 
 any other party in the Convention told us, yes 
 terday, that there was danger that corporate wealth 
 would become too strong for the Commonwealth. 
 I agree to all that. But how is it to become so ? 
 Simply, by confining your corporations to a few 
 men, and thereby give them special advantages to 
 accumulate and swallow up the wealth of the 
 Commonwealth, at the same time that you deny 
 to the poor man the right of self- association for 
 similar objects. Now, a poor man can hardly 
 undertake to get a charter through the legislature. 
 There was a small company of mechanics in my 
 town, who wanted an act of association, to manu 
 facture joiners tools. They presented their mat 
 ter to the legislature, and sent an able man before 
 the committee, who made out a case, as the gen 
 tleman from Boston, (Mr. Schouler,) would say. 
 The legislative committee reported in favor of it. 
 The bill was a long time discussed in the House 
 of Representatives, but it finally failed of being 
 passed, by one or two votes. The second year 
 they applied again, and, after an expenditure of 
 almost six hundred dollars, the act was passed, by 
 the casting vote of the president, and it became a 
 law. Now, why did these poor men fail, in the 
 first instance ? They could not reach the sources 
 of influence in the legislature ; they could not go 
 to A, to B, and to C, and say, this is an institu 
 tion which will favor your particular views, and 
 therefore ought to be chartered. If they could 
 have done that, there would have been no trouble. 
 But they came before the legislature with industry 
 and small means, and endeavored to make out a 
 case for a charter. But such appliances had but 
 little influence the first year, and they failed, 
 though the second year, by unremitted exertions, 
 they succeeded. Well, they obtained the charter, 
 and went to work. They were prospered, until 
 overtaken by a calamity of which they had no 
 control. A fire burnt them out clean, and, un 
 fortunately, they were but slightly insured. 
 
 Now, what was the advantage of your general 
 law, in this case ? They had not themselves means 
 to rebuild, but there was a general law which 
 allowed these men to seek capital wherever they 
 could find it, Conway being a small town, the 
 capital could not be obtained there. They went 
 
68 
 
 GENERAL LAWS FOR CORPORATIONS. 
 
 [59th day. 
 
 Saturday,] 
 
 WHITNEY. 
 
 [July 16th. 
 
 over to Greenfield, and showed to the capitalists 
 of that place the state of their business, the 
 amount of work they had performed, and the 
 profits they had made, and the result was, that 
 those capitalists immediately put into the concern 
 $20,000. The establishment was put into opera 
 tion there, and they are now doing a flourishing 
 business. What would have been the result, had 
 there been no general law ? They would have 
 scattered, or have gone off into Connecticut, and 
 commenced their works there, and Massachusetts 
 would have lost the benefit of their skill and 
 knowledge in that particular branch of business ; 
 and would have lost the advantages arising from 
 the industry and capital employed in it. 
 
 Now, in this instance, we see an advantage 
 which should be retained under a general law, 
 and who is there that wants to continue the 
 present system, of passing acts of incorporations ? 
 The gentleman from Boston says we are liberal 
 in granting charters. We are sometimes. We 
 granted a great number in 1852, amounting, 
 according to some gentlemen, to $14,000,000. 
 
 In the general law, we had restricted the forma 
 tion of companies having a capital of over $200,- 
 000. At the time of the passage of that law, the 
 legislature was conservative and the gentleman 
 from Natick, (Mr. Wilson,) was one of them 
 and, doubting whether a law that did not limit the 
 amount of capital in each case, could be carried 
 through the legislature, the law was limited as it 
 should not have been ; but, remembering the 
 principles laid down by our fathers, that all laws 
 should be equal, they paid we will begin to return 
 to an equality in law from which, by special 
 acts we have departed by allowing small corpo 
 rations to be formed first, and we will limit the 
 capital to two hundred thousand dollars. Well, 
 it was probably wisdom so to direct that measure 
 at that time, for it would have failed in the legis 
 lature in any other shape. 
 
 Now, I desire to put the question to gentlemen 
 in this House, whether, as individual men, form 
 ing the organic law of the Commonwealth of 
 Massachusetts ; whether, as honest and fair minded 
 men, you want to continue in Massachusetts a 
 system by which individuals can make their 
 thousand dollars a year by lobbying through 
 special charters ? Whether you wish to turn your 
 legislative halls into a body of men who can and 
 may be influenced to favor the rights of the few, 
 at the expense of the rest ? Where is the man 
 who wants to continue this system ? I do not 
 know one. 
 
 I gathered an idea or two from the gentleman 
 from Taunton, (Mr. Morton,) the other day, 
 though he was speaking upon another subject, 
 
 which cover the entire question. The gentleman 
 said, " adopt principles of right and justice, and 
 they never will mislead an individual, or a party, 
 of the Commonwealth. You never can have 
 liberty, unless it is based upon principles of 
 equality, and the most sacred exercise of the 
 principle of equality, is in the enactment of laws 
 which shall bear upon, and privilege alike, all 
 citizens." 
 
 Now, gentlemen know what a privilege is. It 
 is a peculiar advantage enjoyed by one man, and 
 not enjoyed by all men ; and if you grant a special 
 charter, giving to a few individuals special rights 
 and advantages, you are granting special privi 
 leges ; and, so far as they are special, they are 
 wrong and unjust, and ought to be unconstitu 
 tional. I say it is a matter of right, which has 
 come down to us as an inheritance from our 
 fathers, that every citizen in the Commonwealth 
 has a right to equal advantages and privileges, 
 and you have not the right, according to the prin 
 ciples upon which you based your Constitution, 
 to trespass upon individual rights, or to make one 
 man rich by giving him special privileges, and 
 deny riches to another man, by a refusal of the 
 same privileges. 
 
 Now, the gentleman from Cambridge, (Mr. 
 Sargent,) this morning, in saying something upon 
 this subject, asked if we have not done well here 
 tofore r I think we have done well in this Com 
 monwealth, and as a Commonwealth, in spite of 
 the disadvantages growing out of the system of 
 special legislation. But our prosperity has not 
 been owing to that system, but has come in spite 
 of it. We are indebted for it to other things to 
 our common schools, our industry, our capacity 
 of acquiring wealth, our manufacturing, our in 
 genuity, our Yankee enterprise, and things like 
 these. The gentleman from Cambridge will not 
 say our prosperity is owing to the granting of 
 special charters. He is too practical a man for 
 that. I contend that we should have had more 
 wealth and enterprise, more diversity of manufac 
 tures, more advantages every way, if we had 
 adopted a system of general laws years ago. 
 
 This is no experiment in other States. The 
 State of New York, great in all that pertains to 
 business enterprise unsurpassed, and unparallel 
 ed in her business achievements is worthy of 
 being referred to and copied. She may truly be 
 called the Empire State, and we may well look to 
 her for example. She began in this matter of 
 passing general laws, as far back as 1838, and, in 
 that year, passed a general law in relation to the 
 matter of banking, the most difficult department of 
 all. She continued to increase her number of gene 
 ral laws, one after another, down to 1846, when her 
 
59th day.] 
 
 GENERAL LAWS FOR CORPORATIONS. 
 
 69 
 
 Saturday,] 
 
 WHITNEY. 
 
 [July 16th. 
 
 new Constitution was formed. In that Constitu 
 tion a provision was inserted, that no special char 
 ter should be granted. And this provision was 
 not rashly adopted. She had had such a system 
 partially in operation for twelve years, and even 
 longer, but I only go back to the time of the 
 passage of the general banking law, and the peo 
 ple of that State considered the matter of so much 
 importance, that they incorporated it into their 
 Constitution. 
 
 So the people of the great agricultural State of 
 Ohio, after suffering many years from special 
 legislation, and special grants, got together, and 
 called a Convention mainly in reference to that 
 matter. I was in Ohio at the time, and the prin 
 cipal question in the canvass, was that in reference 
 to altering the Constitution with regard to the 
 creation of corporations, and of the right of the 
 legislature to pass special laws for them. The 
 people carried the principle that corporations 
 should be created under general laws, and they 
 adopted the Constitution, embodying that provis 
 ion, by a large majority. 
 
 I am yet to hear of, or find a man in any State 
 in this Union, where general laws have been es 
 tablished, who finds fault with such laws, unless 
 it be that man who is wanting special privileges 
 under special law, for himself. That general law 
 of Massachusetts passed in this State, which has 
 been called a " corporation-ridden State " though 
 I do not believe it true that law has never been 
 attacked. Her legislature has passed from, the 
 hands of one party to the other, but they dare 
 not touch it. The principle is so in accordance 
 with the principle of right and justice, which re 
 sides in the breast of every one of our citizens, 
 that no man has dared to rise and attack it, or 
 move to repeal it. 
 
 And, in reference to the banking law, which has 
 been referred to, they have not repealed that law. 
 Why have they not done it ? Gentlemen say the 
 law is not used. I say it will be used. And I 
 say that the law in relation to banking would 
 have been used, ere this, extensively, had it not 
 been for the idea running through the minds of 
 many, who wanted special privileges, that by 
 waiting, they would be able to obtain from the 
 legislature a special charter, with those special priv 
 ileges. As it is now, a bank is soon to be put into 
 operation, by some shrewd financiers of the city of 
 Boston, under that law. A man who was for 
 merly a member of the legislature from the city 
 of Boston, and who went for general manufac 
 turing and banking laws, as upright and intel 
 ligent a legislator, in all that pertains to manufac 
 turing and banking, as the city of Boston ever sent 
 to the House of Representatives now connected 
 
 with the Merchants Bank of Boston, said to me, 
 a day or two since, that they were about to or 
 ganize their immense capital under that law. 
 
 Connecticut passed a general banking law, a 
 year ago, and six or eight flourishing banks have 
 been incorporated under it ; and they consider the 
 system a good one. It allows men to loan money, 
 who have it to loan, and men who have not got 
 it, should not be allowed to bank upon the mere 
 credit which they can obtain from their promises 
 to pay. No mere bank charter should ever be 
 considered a basis for bank issues, however care 
 fully and fully a case might have been made out 
 before your legislature. 
 
 I say the principle should be applied to bank 
 ing. If you retain your present system of 
 banking, open the business to all, and let all be 
 bankers who choose to be, and then the thing 
 will regulate itself. Serve us all alike. That is 
 what I contend for. I do not mean to say in what 
 particular form you should have your banking 
 laws, but whatever it is, you should have it under 
 general laws. I prefer the system of a deposit, 
 pledged for the redemption of issues, for the safety 
 of the bill holders. I do not, however, attack any 
 system of banking; but, I only wish the law, 
 whatever it is, to be general. 
 
 I say, too, that this is no experiment in this 
 State. We have general laws, and they have been 
 framed to meet some of the evils experienced un 
 der the system of special laws. It would require 
 the legislature to sit the year out and the year in, 
 if they were required to pass special laws for every 
 religious society, or lyceum, and the like, that is 
 formed in the Commonwealth. But we have 
 general laws for the incorporation of religious so 
 cieties, libraries, wharf companies, joint stock 
 companies, banking companies, and for many 
 other things. Now, who has ever found any 
 fault with these general laws ? We have general 
 laws upon these things, and why not have them 
 upon all others, and allow to individuals the right 
 of self-association, and stop this system of special 
 legislation. 
 
 The gentleman from Boston said, that we yes 
 terday said that it was safe to leave to the legisla 
 ture a thing of as much moment as this is. I 
 take issue with the gentleman. Enactment of a 
 law by the legislature, for loaning the State credit, 
 would be, in its nature, a general law, bearing 
 equally upon all the citizens of Massachusetts ; 
 equally upon the constituents of every member 
 of the legislature. It would, possibly, be a general 
 law intended for the benefit of a special corpora 
 tion. But the grant of a loan is a general law, 
 and is within the principle which I advocate. 
 Well, Sir, is not the experience of other States 
 
70 
 
 GENERAL LAWS FOR CORPORATIONS. 
 
 [59th day. 
 
 Saturday, 1 
 
 WHITNEY. 
 
 [July 16th. 
 
 is not our own concurrent experience sufficient to 
 satisfy us of the importance of this principle ? Is it 
 not enough to satisfy us that it ought to be incor 
 porated into our Constitution ? As I have before 
 said, we may well learn wisdom from the experi 
 ence of other States, especially when we have 
 so fully proved a system, as we have in relation to 
 this matter. We have to oppose the competition 
 of the great State of New York, our great com 
 mercial rival. New York allows all her citizens 
 freely to enter into corporations under general 
 rules and regulations. And why should we not 
 unyoke our own citizens ? Why should we not 
 take off the trammels from their necks, and give 
 them a fair opportunity to compete with those of 
 New York ? Why should they not have every 
 advantage which general and wise laws can give 
 them ? I tell gentlemen that, hut for these tram 
 mels, our manufactures would have been much 
 farther advanced than now. We should have 
 been much farther advanced in many things. 
 Let us, then, incorporate this provision into our 
 Constitution, as a principle of right and justice, 
 where it never can be shaken and evaded. But 
 upon this point, I have said enough. 
 
 In the next place, I think this resolve should 
 be incorporated into the Constitution, for the rea 
 son given by the gentleman for Wilbraham, (Mr. 
 Hallett,) that it will save the time of the legisla 
 ture. All the legislatures of the State of Massa 
 chusetts, for many years past, have spent more 
 than half, many of them more than two-thirds 
 their time, in granting special charters to cor 
 porations, which might all have been saved by a 
 general statute that would have occupied but a 
 single page upon your statute book. 
 
 Here I will take occasion to say, that there is 
 no ground for apprehension upon the part of the 
 members of the Convention that should deter us, 
 or make us hesitate to adopt this resolve, on ac 
 count of any supposed interference with the 
 right of eminent domain, which has been re 
 ferred to in the course of this debate. I appeal 
 to the judgment of the legal gentlemen of the 
 Convention, to whose judgment I would certainly 
 defer in these matters, whether you cannot as 
 well provide by general law that the right of em 
 inent domain shall be secured to the citizens, as 
 by special law. You can provide, as they have 
 done in Ohio although I think the restrictions 
 are unnecessarily severe that the property of a 
 man shall not be taken for a railroad, until he 
 has been settled with, and until it is paid for. In 
 New York, the railroad companies are authorized 
 to settle with the individuals for their land, if 
 possible ; but in case an individual cannot be 
 traded Avith, they have the right to appeal to the 
 
 legislature. But I understand that since this law 
 has been in operation in New York, no appeal 
 has been made to the legislature, for the right of 
 way through the lands of any individual. The 
 railroad companies have always managed to com 
 promise with them in some way. So that you 
 not only can protect your citizens -in the right of 
 eminent domain, by general laws as well as by 
 special, but you can do it all the better ; for, in 
 drawing up a general law, you will be more care 
 ful so to frame it as not to infringe upon the right 
 of any individual, half as much as you will be 
 likely to by special law ; and this furnishes an ad 
 ditional argument for putting this provision into 
 our Constitution. 
 
 I have said that such a provision will promote 
 the business interests of the community generally ; 
 but I will not take up the time of the Conven 
 tion in dwelling longer upon this point, for I do 
 not desire to weary the patience of the Convention. 
 
 I pass on, then, to my next argument in favor 
 of this provision, which is, that it will give us 
 uniform laws in reference to corporations. Now, 
 if any gentleman will take the pains to examine 
 our statute books with reference to this matter, 
 he will find a great diversity in these special laws. 
 You will find that privileges are granted to one 
 corporation which are denied to another ; and 
 you will find that, when compared with each 
 other, they are very unequal and unjust. In 
 looking over these laws, the other day, I noticed 
 that one corporation in the county of Worcester 
 was granted the right to sell liquor, while another 
 was restricted from selling it about the premises. 
 Now, I do not believe you could get such disa 
 greements in point of privilege, granted or incor 
 porated into any general law. No legislature 
 would think of framing such a law. But, what 
 ever might be the privileges granted, all would 
 be entitled to the same. But some favored cor 
 poration will start such dissimilar charters, under 
 special legislation. They will go before the leg 
 islature with all the appliances which they well 
 know how to use, and, in some manner, before 
 they give up, they will manage to get what they 
 want. But this system of general laws will give 
 us uniform regulations and privileges, for all cor 
 porations to be created in future. They will 
 afford a reference which all persons can, at any 
 time, examine, to ascertain the liability of stock 
 holders, or for any purpose. They will be in the 
 hands of the laborer and the creditor, in one sin 
 gle act, which he can examine at any time, and 
 through which he can ascertain whether the pro 
 prietors are liable for the last six months of his 
 service. He may find out the entire provisions 
 of law, relative to the corporation by which he is 
 
59th day.] 
 
 GENERAL LAWS FOR CORPORATIONS. 
 
 71 
 
 Saturday,] 
 
 WHITNEY. 
 
 [July 16th. 
 
 employed, as he cannot find out now. Under 
 the existing laws, he may go from one corporation 
 to another, through the hundred towns in which 
 they are located, and he will find different pro 
 visions of law applying to each of the different 
 companies. 
 
 But, Sir, these laws are unequal, not only as 
 regards manufacturing companies, but also as 
 regards insurance companies. I belong to an in 
 surance company which petitioned the last legis 
 lature to be allowed to raise a guarantee capi 
 tal, to guarantee the policies issued by that 
 company. It was only such a privilege as had 
 been given to other companies. Precisely the 
 same as had been granted to an insurance com 
 pany in Worcester, precisely the same as had 
 been granted to another in Springfield, but it was 
 denied to our company, and for what reason? 
 We are, to-day, raising policies of insurance 
 without guarantee, for that right has not been 
 given us. All we asked was, that the association 
 might raise $100,000, by the payment of stock on 
 the part of individuals, and that we might be 
 allowed to guarantee policies upon the strength 
 of this capital, and we were denied this right. It 
 could not be granted to us by the legislature, and 
 why ? Because, possibly I do not say this was 
 the reason sundry influential men happened to 
 be placed upon the committee having the subject 
 in charge, who were connected with other insu 
 rance companies, and by various appliances upon 
 the part of the agents of other companies which 
 have this privilege, that committee was induced 
 to report against our petition. I say possibly 
 these were the reasons perhaps others existed, 
 if so, I do not know what they were, as we did 
 not come before the committee at all, supposing 
 that the request, being the same as had been 
 granted to other companies, and, being so reason 
 able in its nature, would be acceded to without a 
 question being raised ; and I was never more 
 surprised in my life, than when the committee 
 reported that it was inexpedient to grant the 
 prayer of the petition, or, to use their form, that 
 the petitioners have leave to withdraw. Now, Sir, 
 I want to know by what right or justice, you 
 give to a company in Worcester, and to another 
 in Springfield, the authority to raise a guarantee 
 capital for their insurance policies, and deny that 
 privilege to me ? What have I done here in the 
 good old Commonwealth of Massachusetts, to 
 forfeit my rights of citizenship, and to entitle me 
 to less advantages in the acquirement of property, 
 than are accorded to others ? I know of no act 
 of mine that ought thus to disfranchise me, nor 
 do I know of any act of yours that should entitle 
 you to privileges above me. 
 
 Now, Sir, I have no manner of doubt that the 
 incorporation of this provision into the Constitu 
 tion, will do away forever this system of injus 
 tice and inequality, and that every honest man 
 in Massachusetts will thereafter enjoy equal priv 
 ileges with every other man in the Common 
 wealth. I do not believe that when you come to 
 have a system of general laws, you will find any 
 man to rise up and advocate the retistablishment 
 of our existing system of special laws. Never, 
 never. 
 
 It will have the effect, as I before remarked, to 
 shorten the length of the sessions of the legisla 
 ture nearly one- half, and it will destroy the prin 
 ciple of monopoly. That is the chief feature of 
 which complaint is made, and it is one of the 
 principal objections, to my mind, to the continu 
 ance of the present system. Privileges are given 
 to certain associations, against the rights of the 
 whole. They are granted to a few, and denied 
 to the rest. Therein consists the idea of monop 
 oly, and nowhere else. 
 
 Now, Sir, I wish to say a single word farther 
 upon this point, and I will close. A fear is en 
 tertained, in the minds of some gentlemen, that, 
 by the adoption of this provision into your amend 
 ed Constitution, you will, to a certain extent, ren 
 der it unpopular among the people, when they 
 come to vote upon its adoption. Now, I verily 
 believe, that you can incorporate no one provision 
 into your Constitution, that will so much aid you 
 in securing the adoption of the whole, as this 
 simple declaration, that hereafter special legisla 
 tion shall cease. Why, Sir, it has been a cardi 
 nal doctrine of one party in the Commonwealth, 
 ever since the days of our boyhood. Ever since 
 I knew anything about politics, this has been a 
 prominent object sought to be attained by one of 
 the parties of the Commonwealth. The gentle 
 man from Taunton, (Mr. Morton,) in his mes 
 sage in 1839, ably recommended that we should 
 abolish this system of special legislation. Early 
 in our history as a government, such a thing as 
 special privileges was advocated by no one. It 
 has grown upon us by degrees, and I think it is 
 time that it should be stopped. But we never 
 can stop it unless we do it in the Constitu 
 tion. 
 
 Your recent history, to which the gentleman 
 from Boston (Mr. Schouler) has alluded, proves 
 that whenever the legislature has enacted a general 
 law, it has worked well. Let us, then, take off 
 restrictions from general enterprise, and cease to 
 be partial in our laws, by adopting this restric 
 tion. Let us so amend our organic law, that 
 there shall be no more special legislation ; here 
 after, whatever enactments you make, let them 
 
72 
 
 GENERAL LAWS FOR CORPORATIONS. 
 
 [59th day. 
 
 Saturday,] 
 
 SCHOULER BIRD WHITNEY FROTHINGHAM FRENCH. 
 
 [July 16th. 
 
 belong to every man alike, then they cannot be 
 complained of. 
 
 [Here the hammer fell, the hour to which the 
 speaker, as chairman of the Committee, was enti 
 tled, by the order of the Convention, having 
 expired.] 
 
 Mr. DENTON, of Chelsea. I think this sub 
 ject has been amply and fairly discussed, upon 
 both sides. I think it has been discussed with 
 great ability, and I therefore feel it my duty to 
 move the previous question. 
 
 Mr. SCHOULER, of Boston. I hope the pre 
 vious question will not be sustained at the pres 
 ent time. If the question has been discussed, it 
 has been all on one side. We have had a speech 
 from the gentleman for Wilbraham, (Mr. Hal- 
 lett,) half an hour in length. The gentleman 
 from North Brookfield, (Mr. Walker,) spoke half 
 an hour. We have had a speech from the gen 
 tleman from Charlestown, (Mr. Frothingham,) 
 and an hour s speech from the gentleman from 
 Conway, (Mr. Whitney,) in favor of the adoption 
 of this proposition, while scarcely anything has 
 been said upon the other side. I should like ten 
 minutes to set myself right upon this question. 
 It seems to me, that the question is by no means 
 exhausted. There are many points which have 
 not been touched upon at all. The gentleman 
 from Cambridge, (Mr. Sargent,) my colleague 
 from Boston, and myself, have not spoken three 
 quarters of an hour altogether ; while the gentle 
 men upon the other side have spoken two hours 
 and a half. The gentleman from Conway, (Mr. 
 Whitney,) directed nearly his entire speech against 
 the few remarks which I had the honor to make, 
 and I desire ten minutes to say something in re- 
 
 piy- 
 
 Mr. BIRD, of Walpole. I only want to say 
 that I hope the motion for the previous question 
 will not be withdrawn, and that it will be sus 
 tained by the Convention. The gentleman from 
 Boston, (Mr. Schouler,) has had the floor once, 
 upon this subject. 
 
 Mr. SCHOULER. I am aware that I have 
 had the floor once, but only for a very few min 
 utes, and the gentleman from Conway, (Mr. Whit 
 ney,) has directed his whole argument against the 
 ground which I took. In the usual course of 
 debate, the chairman of a Committee opens the 
 debate upon the subject over which he has had 
 charge, but, in this instance, he has closed the de 
 bate. 
 
 Mr. WHITNEY, of Conway. I would sug 
 gest to the gentleman from Chelsea, (Mr. Denton,) 
 who moved the previous question, that he with 
 draw his motion. I desire to treat the gentleman 
 from Boston with courtesy. I did not finish the 
 
 remarks I had intended to make before the ham 
 mer fell, and I always want the privilege of the 
 last word, when I can have it, but I nevertheless 
 desire that the gentleman from Boston should 
 have an opportunity to reply, if he desires it ; and 
 I therefore suggest to the gentleman from Chelsea 
 that he withdraw his motion for the previous 
 question, and move that the question be taken at 
 twenty minutes past 12 o clock. That will give 
 the gentleman from Boston ten minutes to reply. 
 
 Mr. FROTHINGHAM, of Charlestown. I 
 rose to make a suggestion somewhat similar to 
 that of the gentleman from Conway, (Mr. Whit 
 ney). I have myself occupied not more than fif 
 teen minutes in this discussion, and I should like 
 an opportunity of saying something in reference 
 to what has been said by the gentleman from 
 Boston. I dare say there are many others who 
 would also like to say something. I know, how 
 ever, that the time of the Convention is precious, 
 and, for one, I would be willing to forego the plea 
 sure of answering the gentleman from Boston. I 
 would, nevertheless, suggest to the gentleman 
 from Chelsea, that the time for taking the ques 
 tion be fixed at half past 12 o clock. This is a 
 very important subject, and one which has occu 
 pied but very little of the time of the Convention. 
 It seems to me but just, that the gentleman from 
 Boston, (Mr. Schouler,) should be allowed time 
 to answer the gentleman from Conway, and I 
 think that to allow a little farther time for the 
 discussion of the subject, would not be objection 
 able. I will, therefore, venture to suggest that the 
 time for taking the question be fixed at half past 
 12 o clock. 
 
 Mr. WHITNEY, of Boylston. I have been 
 waiting for some time for an opportunity to say 
 a word upon this subject, but I see there are 
 many others who are also waiting to say a 
 word, if the previous question is withdrawn. If 
 our friends are willing to waive their rights, I am 
 willing to waive mine, and let the question be 
 taken now. I hope the previous question will 
 not be withdrawn. 
 
 Mr. FRENCH, of Berkley. I hope the gen 
 tleman from Chelsea will withdraw his call for 
 the prevous question. I have not said a word 
 upon this subject, and the Convention very well 
 know that I shall detain them but a short time 
 in what I have to say. If I could have obtained 
 the floor at a proper time, I wanted to say a word in 
 reply to the gentleman on my left, (Mr. Schouler). 
 But what I wanted to say at the time, I have now 
 nearly forgotten, [a laugh,] and I shall therefore 
 be content with still less time than I should then 
 have occupied. If the Convention will give me 
 five minutes, it will be all I ask. 
 
59th day.] 
 
 GENERAL LAWS FOR CORPORATIONS. 
 
 73 
 
 Saturday,] 
 
 FRENCH DENTON YEAS. 
 
 [July 16th. 
 
 Mr. President : I shall be sorry to get into deep 
 -water, but if I do, it will not be the first time I 
 have been off my soundings. 
 
 Mr. BATES, of Plymouth. I rise to a ques 
 tion of order. I believe the gentleman is discuss 
 ing the question, and replying to the member from 
 Boston, (Mr. Schouler). 
 
 Mr. FRENCH. I have not come to him yet. 
 [Laughter.] 
 
 The PRESIDENT. The Chair does not un 
 derstand that the gentleman from Berkley is re 
 plying to the gentleman from Boston. 
 
 Mr. FRENCH. This is a question in relation 
 to corporations, or whether we are to have a gen 
 eral or special law as to corporations. What ob 
 ject do associations of persons have in view in 
 being incorporated. They have some object or 
 other 
 
 The PRESIDENT. It is not in order for the 
 gentleman to discuss the merits of the question. 
 
 Mr. BIGELO W, of Grafton. I hope the pre 
 vious question will be sustained. 
 
 Mr. DENTON, of Chelsea. I wish the gen 
 tleman from Boston, (Mr. Schouler,) to under 
 stand that it was not my intention to cut him off 
 from replying to the gentleman from Conway, 
 (Mr. Whitney). I listened to his speech with a 
 great deal of pleasure, and I think he went over 
 the whole ground, and I really think that he 
 would not have anything more to say, except in 
 reply to the gentleman from Conway, which 
 would lead to still farther discussion, and there 
 fore I insist upon the previous question. 
 
 The PRESIDENT. The Chair desires to re 
 mark, in relation to the suggestion of the gentle 
 man from Boston, (Mr. Schouler,) that, with the 
 exception of the mover of the amendment, the 
 floor has been given alternately to the friends and 
 opponents of the resolves. 
 
 The previous question was seconded and the 
 main question ordered. 
 
 The PRESIDENT. The question first in 
 order is, upon the amendment moved by the gen 
 tleman from Oxford, (Mr. De Witt). 
 
 Mr. DE WITT. I withdraw the amendment. 
 
 The PRESIDENT. The question now re 
 curs upon the motion made by the gentleman 
 from Worcester, (Mr. Davis,) to strike out all 
 after the word " resolved," and insert the follow 
 ing, as a substitute : 
 
 Resolved, That it is expedient to incorporate 
 into the Constitution a provision, that corporations 
 shall not be created by special act when the object 
 of the incorporation shall be attainable under 
 general laws. 
 
 The question was then taken upon Mr. Davis s 
 amendment, and it was agreed to. 
 
 The PRESIDENT. The question now recurs 
 upon ordering the resolve to a second reading, as 
 amended. 
 
 Mr. STETSON, of Braintree, demanded the 
 yeas and nays upon that question. 
 
 They were ordered. 
 
 The yeas and nays were then taken, and there 
 were yeas, 188 ; nays, 52 as follows : 
 
 Adams, Shubael P. 
 Aldrich, P. Emory 
 Allen, James B. 
 Alley, John B. 
 Alvord, D. W. 
 Andrews, Robert 
 Austin, George 
 Baker, Hillel 
 Ballard, Alvah 
 Barrett, Marcus 
 Bates, Moses, Jr. 
 Bigelow, Edward B. 
 Bird, Francis W. 
 Bishop, Henry W. 
 Booth, William S. 
 Boutwell, Geo. S. 
 Boutwell, Sewell 
 Bradford, William J. A, 
 Breed, Hiram N. 
 Bronson, Asa 
 Brown, Artemas 
 Brown, Hiram C. 
 Browiiell, Joseph 
 Bryant, Patrick 
 Buck, Asahel 
 Burlingame, Anson 
 Cady, Henry 
 Caruthers, William 
 Case, Isaac 
 Chandler, Amariah 
 Chap in, Daniel E. 
 Childs, Josiah 
 Churchill, J. McKean 
 Clark, Ransom 
 Clarke, Alpheus B. 
 Clarke, Stillman 
 Cleverly, William 
 Cole, Sumner 
 Crane, George B. 
 Cressy, Oliver S. 
 Crittenden, Simeon 
 Cushman, Henry W. 
 Cushman, Thomas 
 Cutler, Simeon N. 
 Davis, Ebenezer 
 Dean, Silas 
 Denison, Hiram S. 
 Deiiton, Augustus 
 DeWitt, Alexander 
 Duncan, Samuel 
 Dunham, Bradish 
 Durgiii, John M. 
 Eames, Philip 
 Earle, John M. 
 Easland, Peter 
 Edwards, Elisha 
 
 Edwards, Samuel 
 Fay, Sullivan 
 Fisk, Lymaii 
 Fitch, Ezekiel W. 
 Foster, Abram 
 Fowle, Samuel 
 Freeman, James M. 
 French, Charles A. 
 French, Samuel 
 Frothingham, Rich d, Jr. 
 Gale, Luther 
 Gardner, Johnson 
 Gates, Elbridge 
 Giles, Charles G. 
 Giles, Joel 
 Gooch, Daniel W. 
 Gooding, Leonard 
 Green, Jabez 
 Griswold, Josiah W. 
 Griswold, Whiting 
 Hadley, Samuel P. 
 Hallett, B. F. 
 Harmon, Phineas 
 Haskius, William 
 Hathaway, Elnathan P. 
 Hawkes, Stephen E. 
 Hay den, Isaac 
 Heath, Ezra 2d, 
 Hewes, James 
 Hewes, William H. 
 Hobart, Aaron 
 Hobart, Henry 
 Hobbs, Edwin 
 Hood, George 
 Hooper Foster 
 Howard, Martin 
 Hoyt, Henry K. 
 Hunt, Charles E. 
 Hurlbut, Moses C. 
 Jacobs, John 
 Johnson, John 
 Kingman, Joseph 
 Knight, Hiram 
 Knight, Jefferson 
 Knowlton, J. S. C. 
 Knowlton, William H. 
 Knox, Albert 
 Kuhn, George, H. 
 Ladd, Gardner P. 
 Lawrence, Luther 
 Lelaiid, Alden 
 Lincoln, Abishai 
 Littlefield, Tristram 
 Marble, William P. 
 Merritt, Simeon. 
 Mixter, Samuel 
 
74 
 
 GENERAL LAWS FOR CORPORATIONS. [59th day. 
 
 Saturday,] 
 
 NAYS ABSENT. 
 
 [July 16th. 
 
 Morton, Elbridge G. 
 
 Simmons, Perez ABSENT. 
 
 Morton, Marcus 
 Morton, William S. 
 Nay son, Jonathan 
 Newman, Charles 
 Nichols, William 
 Norton, Alfred 
 Ober, Joseph E. 
 Orne, Benjamin S. 
 Osgood, Charles 
 Paine, Benjamin 
 Paine, Henry 
 Parris, Jonathan 
 Parsons, Samuel C. 
 Partridge, John 
 Peabody, Nathaniel 
 Pease, Jeremiah, Jr. 
 Penniman, John 
 Perkins, Daniel A. 
 Perkins, Jesse 
 Perkins, Noah C. 
 Phelps, Charles 
 Pomroy, Jeremiah 
 Pool, James M. 
 Putnam, John A. 
 Rantoul, Robert 
 Rawson, Silas 
 
 Simonds, John W. 
 Smith, Matthew 
 Souther, John 
 Sprague, Melzar 
 Spooner, Samuel W. 
 Stacy, Eben II. 
 Stetson, Caleb 
 Stevens, Joseph L., Jr. 
 Stiles, Gideon 
 Talbot, Thomas 
 Thayer, Willard, 2d 
 Thomas, John W. 
 Thompson, Charles 
 Tilton, Horatio W. 
 Turner, David 
 Turner, David P. 
 Tyler, William 
 Viles, Joel 
 Wallis, Freeland 
 Walker, Amasa 
 Ward, Andrew H. 
 Warner, Marshal 
 Waters, Asa H. 
 Weston, Gershom B. 
 White, Benjamin 
 White George 
 
 Abbott, Alfred A. 
 Abbott, Josiah G. 
 Adams, Benjamin P. 
 Allen, Charles 
 Allen, Joel C. 
 Allen, Parsons 
 Allis, Josiah 
 Ayres, Samuel 
 Ball, George S. 
 Bancroft, Alpheus 
 Banks, Nathaniel P., Jr. 
 Bartlett, Russel 
 Bartlett, Sidney 
 Bates, Eliakim A. 
 Beach, Erasmus D. 
 Beal, John 
 Bell, Luther V. 
 Bennett, Zephaniah 
 Blagden, George W. 
 Bliss, Gad O. 
 Bliss, Willam C. 
 Briggs, George N. 
 Brown, Adolphus F. 
 Brown, Alpheus R. 
 Brown, Hammond 
 
 Foster, Aaron 
 Fowler, Samuel P. 
 French, Charles H. 
 French, Rodney 
 Gilbert, Washington 
 Gouldiiig, Dalton 
 Goulding, Jason 
 Graves John W. 
 Gray, John C. 
 Greene, William B. 
 Greenleaf, Simon 
 Hall, Charles B. 
 Hammond, A. B. 
 Hapgood, Lyman W. 
 Hapgood, Seth 
 Haskell, George 
 Hayward, George 
 Henry, Samuel 
 Heywood, Levi 
 Hillard, George S. 
 Holder, Nathaniel 
 Hopkinson, Thomas 
 Houghton, Samuel 
 Howland, Abraham H. 
 Huntington, Asahel 
 
 Rice, David 
 Richards, Luther 
 Richardson, Daniel 
 Richardson, Nathan 
 Rockwood, Joseph M 
 Rogers, John 
 Ross, David, S. 
 
 Whitney, Daniel S. 
 Whitney, James S. 
 Wilbur, Daniel 
 Wilbur, Joseph 
 . Wilson, Henry 
 Wilson, Willard 
 Wirin, Jonathan B. 
 
 Brownell, Frederick 
 Bullen, Amos H. 
 Bullock, Rufus 
 Butler, Benjamin F. 
 Carter, Timothy W. 
 Chapin, Chester W. 
 Choate, Rufus 
 
 Huntington, Charles P. 
 Huntington, George H. 
 Hyde, Benjamin D. 
 Ide, Abijah M., Jr. 
 James, William 
 Kellogg, Martin R. 
 Keyes, Edward L. 
 
 Royce, James C. 
 Sanderson, Chester 
 Sherril, John 
 Sikes, Chester 
 
 Winslow, Levi M. 
 Wood, Charles C. 
 Wood, Otis 
 Wood, William H. 
 
 Clark, Henry- 
 Clark, Salah 
 Coggin, Jacob 
 Cole, Lansing J. 
 
 Kimball, Joseph 
 Kinsman, Henry W. 
 Knight, Joseph 
 Knowlton, Charles L. 
 
 
 
 Conkey, Ithamar 
 
 Ladd, John S. 
 
 
 
 Cook, Charles E. 
 
 Langdon, Wilber C. 
 
 
 NATS. 
 
 Cooledge, Henry F. 
 
 Lawton, Job G., Jr. 
 
 
 
 Crockett, George W. 
 
 Little, Otis 
 
 Appleton, William 
 
 Hurlburt, Samuel A. 
 
 Crosby, Leander 
 
 Loomis, E. Justin 
 
 Aspinwall, William 
 
 Jackson, Samuel 
 
 Cross, Joseph W. 
 
 Lord, Otis P. 
 
 Atwood, David C. 
 
 Jenkins, John 
 
 Crowell, Seth 
 
 Lothrop, Samuel K. 
 
 Barrows, Joseph 
 Beebe, James M. 
 
 Jenks, Samuel H. 
 Kellogg, Giles C. 
 
 Cummings, Joseph 
 Curtis, Wilber 
 
 Lowell, John A. 
 Marcy, Labaii 
 
 Bennett, William, Jr. 
 
 Kendall, Isaac 
 
 Dana, Richard H., Jr. 
 
 Marvin, Abijah P. 
 
 Bigelow, Jacob 
 
 Lincoln, Frederic W., Jr. 
 
 Davis, Charles G. 
 
 Marvin, Theophilus R. 
 
 Bradbury, Ebenezer 
 
 Livermore, Isaac 
 
 Davis, Isaac 
 
 Mason, Charles 
 
 Braman, Milton P. 
 
 Loud, Samuel P. 
 
 Davis, John 
 
 Meader, Reuben 
 
 Brewster, Osmyn 
 
 Miller, Seth, Jr. 
 
 Davis, Robert T. 
 
 Monroe, James L. 
 
 Brinley, Francis 
 
 Orcutt, Nathan 
 
 Davis, Solomon 
 
 Moore, James M. 
 
 Bumpus, Cephas C. 
 
 Paige, James W. 
 
 Dawes, Henry L. 
 
 Morey, George 
 
 Chapin, Henry 
 
 Park, John G. 
 
 Day, Gilman 
 
 Morss, Joseph B. 
 
 Cogswell, Nathaniel 
 
 Read, James 
 
 Dehon, William 
 
 Morton, Marcus, Jr. 
 
 Copeland, Benjamin F. Reed, Sampson 
 
 Deming, Elijah S. 
 
 Nash, Hiram 
 
 Crowninshield, F. B. 
 
 Sargent, John 
 
 Doane, James C. 
 
 Noyes, Darnel 
 
 Gardner Henry J. 
 
 Schouler, William 
 
 Dorman, Moses 
 
 Nute, Andrew T. 
 
 Gilbert, Wanton C. 
 
 Tileston, Edmund P. 
 
 Easton, James, 2d 
 
 Oliver, Henry K. 
 
 Gould, Robert 
 
 Tower, Ephraim 
 
 Eaton, Calvin D. 
 
 Packer, E. Wing 
 
 Hale, Artemas 
 
 Tyler, John S. 
 
 Eaton, Lilley 
 
 Parker, Adolphus G. 
 
 Hale, Nathan 
 
 Upham, Charles W. 
 
 Ely, Joseph M. 
 
 Parker, Joel 
 
 Heard, Charles 
 
 Walcott, Samuel B. 
 
 Ely, Homer 
 
 Parker, Samuel D. 
 
 Hersey, Henry 
 
 Walker, Samuel 
 
 Eustis, William T. 
 
 Parsons, Thomas A. 
 
 Hindsdale, William 
 
 Weeks, Cyrus 
 
 Farwell, A. G. 
 
 Payson, Thomas E. 
 
 Hubbard, William J. 
 
 Wheeler, William F. 
 
 Fellows, James K. 
 
 Peabody, George 
 
 Hunt, William 
 
 Wilson, Milo 
 
 Fiske, Emery 
 
 Perkins, Jonathan C. 
 
59th day.] 
 
 HARVARD COLLEGE. 
 
 75 
 
 Saturday,] 
 
 BOUTWELL STETSON HUBBARD. 
 
 [July 16th. 
 
 Phinney, Silvanus B. 
 Pierce, Henry 
 Plunkett, William C. 
 Powers, Peter 
 Preston, Jonathan 
 Prince, F. O. 
 Putnam, George 
 Richardson, Samuel H. 
 Ring, Elkanah, Jr. 
 Rockwell, Julius 
 Sampson, George R. 
 Sanderson, Amasa 
 Sheldon, Luther 
 Sherman, Charles 
 Sleeper, John S. 
 Stevens, Charles G. 
 Stevens, Granville 
 Stevens, William 
 Stevenson, J. Thomas 
 Storrow, Charles S. 
 Strong, Alfred L. 
 Stutson, William 
 Sumner, Charles 
 
 Sumner, Increase 
 Swain, Alanson 
 Taber, Isaac C. 
 Taft, Arnold 
 Taylor, Ralph 
 Thayer, Joseph 
 Tilton, Abraham 
 Train, Charles R. 
 Underwood, Orison 
 Upton, George B. 
 Vinton, George A. 
 Wales, Bradford L. 
 Wallace, Frederick T. 
 Warner, Samuel, Jr. 
 Wetmore, Thomas 
 Wilder, Joel 
 Wilkins, John II. 
 Wilkinson, Ezra 
 Williams, Henry 
 Williams, J. B. 
 Wood, Nathaniel 
 Woods, Josiah B. 
 Wright, Ezekiel 
 
 Absent and not voting, 178. 
 
 So the resolve was ordered to a second reading. 
 
 University at Cambridge. 
 The PRESIDENT. The next matter in order, 
 is No. 2 of the calendar, being the resolve to 
 amend section 2, chapter 5, of the Constitution, by 
 striking out the words " University at Cam 
 bridge." The resolve has been read twice, and 
 the question now is upon the final passage. The 
 resolve is as follows : 
 
 Resolved, That it is expedient to amend the 
 second section of the fifth chapter of the Consti 
 tution, by striking out therefrom the words 
 " University at Cambridge." 
 
 Mr. BOUT WELL, for Berlin. I am opposed 
 to the passage of this resolution. If gentlemen 
 will turn to page ninety-seventh of the rules and 
 orders of the Convention, they will find in sec 
 tion 2d, chapter 5th, of the Constitxition, the fol 
 lowing : 
 
 " It shall be the duty of legislatures and mag 
 istrates, in all future periods of this Common 
 wealth, to cherish the interests of literature 
 and the sciences, and all seminaries of them ; 
 especially the University at Cambridge, public 
 schools and grammar schools, in the towns," &c. 
 
 If gentlemen will observe the peculiar phrase 
 ology of this provision of the Constitution, they 
 will see that it has divided institutions of learning 
 into three classes : the university at Cambridge, 
 public schools, and grammar schools. The prop 
 osition reported to us by the Committee is, that 
 the words " University at Cambridge " be strick 
 en out, so that the paragraph shall read : "It 
 shall be the duty of legislatures and magistrates, 
 
 in all future periods of this Commonwealth, to 
 cherish the interests of literature and the sci 
 ences, and all seminaries of them, especially the 
 public schools and grammar schools in the 
 towns," &c. The effect of this proposition is, to 
 place the university at Cambridge where, as we 
 believe, it ought not to stand, with those institu 
 tions of the State that rest upon private founda 
 tion, and are not supported by general taxation. 
 I believe the friends of the university, at Cam 
 bridge desire to have that institution stand just 
 exactly where, by the Constitution, it has been 
 placed, with the public and grammar schools, 
 preserving to it its original character as a public 
 institution. Therefore, I am in favor of having 
 the Constitution, in this respect, remain just as it 
 is, and am opposed to the resolve, for the reason 
 that it takes the university at Cambridge out of 
 the class of public institutions, and makes it a 
 private institution. 
 
 Mr. STETSON, of Braintree. I should like 
 to ask the gentleman for Berlin, why the univer 
 sity at Cambridge should be especially distin 
 guished from the other institutions, in this respect. 
 
 Mr. BOUTWELL. The reason for this is, that 
 the university at Cambridge was established by 
 act of the legislature, and endowed with the 
 property of the people of all the Commonwealth, 
 while neither of the other colleges has been so 
 endowed. That is a very good reason why the 
 university at Cambridge should stand with the 
 grammar and public schools of the State, as an 
 institution of the State, resting upon the foun 
 dation laid by the State. The other institutions 
 are private institutions, while this is a public one. 
 
 Mr. HUBBARD, of Boston. From the dis 
 cussion which took place yesterday, I suppose it 
 is a mooted question, whether the university at 
 Cambridge is to be regarded as a public institu 
 tion, over which the State has entire control, or 
 whether it is a private institution, which the legis 
 lature cannot touch. It seems to me, it is assum 
 ing the question at issue, to assert that it is a 
 public institution, standing upon the same foun 
 dation with our public schools, supported at the 
 public expense. It is said, that the provision in 
 relation to this institution was originally so in 
 serted, when the Constitution was framed in 
 1780, but I suppose the reason for that was, be 
 cause there was no other college or university in 
 the State. It seems to me, that a similar provis 
 ion for all the other colleges of the State, should 
 be inserted with as much reason as this. If they 
 all come under the provision in the antecedent 
 clause, then the university at Cambridge will 
 occupy the same position as the other colleges, 
 and will have no right to claim preeminence over 
 
76 
 
 HARVARD COLLEGE. 
 
 [59th day. 
 
 Saturday,] 
 
 GARDNER WILSON BIRD. 
 
 [July 16th. 
 
 them in this respect. I hope the resolve, as 
 reported by the Committee, will be adopted. 
 
 Mr. GARDNER, of Boston. This resolve has 
 been reported to the Convention by the unanimous 
 voice of the Committee who had the subject in 
 charge, and we are bound to suppose that they 
 have given it sufficient attention to understand 
 the bearings of the case. We must come to the 
 conclusion that they were unanimous, because 
 there is no Minority Report, or any other Report, 
 but the one emanating from their chairman, 
 recommending that the Convention should make 
 this change. I supposed the object of this Con 
 vention was, to create a Constitution for the 
 people of the State which should be adapted to all 
 parts of the State, and uniform in its application 
 to all the individuals and institutions of the State. 
 This exception of Harvard University, as con 
 tended for by gentlemen here, acts in one of two 
 ways, either as an obstruction to the interests of 
 the university, and upon that ground I should 
 oppose it, and I trust that the Convention will 
 oppose it also, or else it acts as a benefit, as a 
 special privilege to that university, and upon that 
 ground I should oppose it. This institution is 
 individually signalized in the original Constitu 
 tion, simply, as I understand it, for the reason just 
 given by my colleague, (Mr. Hubbard,) and I 
 have given the subject some little attention that 
 when the Constitution was first established, this 
 was the only institution of the kind in the Com 
 monwealth. We are called upon now, either to 
 place this institution upon a footing with all the 
 other institutions of the Commonwealth, or else 
 give it special privileges. I am in favor of sus 
 taining the Report of the Committee, and am in 
 favor of adopting this resolve, irrespective of the 
 action of the Committee, because I believe it is 
 right, just, and democratic. 
 
 Mr. WILSON, of Natick. The chairman of 
 the Committee, to whom reference has been made, 
 and who is now absent, moved, the other day, to 
 lay this matter over. Upon that occasion I un 
 derstood him to say, that he made the motion to 
 see what the Convention would do with the reso 
 lution acted upon yesterday. The gentleman 
 from Boston says that the Committee made an 
 unanimous Report, and that we are bound to sup 
 pose they had good reasons for making that Re 
 port. All we are bound to know about Com 
 mittees, is this : that they report, and our duty is 
 to examine their reports, and act according to our 
 own views in regard to them. Of course, I would 
 treat the report of any Committee of this Conven 
 tion with great deference and respect, but we are 
 not, by any means, compelled to follow the advice 
 of those Committees. I agree with the delegate 
 
 for Berlin, (Mr. Bout well,) that we ought not to 
 pass this resolution. Harvard College was 
 founded by the Commonwealth of Massachusetts, 
 in the year 1636. The Constitution so declares 
 it, and, by its provisions, we actually pledge our 
 selves in the legislature to foster and cherish that 
 institution. I regard it as standing altogether 
 different from Amherst and Williams College. 
 All the State did in relation to those institutions 
 was to incorporate them, and it did not found 
 them, as it founded Harvard College. I wish to 
 maintain this in the Constitution as it is, as the 
 university of Massachusetts, and I wish it to 
 maintain that position, now and hereafter. I trust 
 that in the future, that right will be fully and 
 clearly established and vindicated, and therefore 
 I hope the resolution now before us will not be 
 adopted, and that we shall leave that portion of 
 the Constitution precisely as it stands to-day. 
 
 Mr. BIRD, of Walpole. The gentlemen from 
 Boston, have said that this matter in relation to 
 Harvard College was put into the Constitution of 
 1780, because there was no other college in the 
 State at that time. But, I may inquire, how it 
 happens that it was kept in the Constitution of 
 1820 ? I say there was good reason for it. It 
 was not retained by accident ; and, admitting that 
 it may have have been introduced in the Consti 
 tution of 1780 for that reason, which, as a matter 
 of fact, I do not admit, yet it was retained in the 
 Constitution of 1820, and for the reason that the 
 relation between the Commonwealth and Harvard 
 College is entirely different from the relation be 
 tween it and any other institution in the State. It 
 is not only the relation which exists between a 
 founder and the institution which is founded ; 
 but beyond that, there is a peculiar relation, grow 
 ing out of the fact, that the Commonwealth has 
 had the entire control of the college from 1780 to 
 1810, without any exception. 
 
 From 1636 to 1810, the Commonwealth of 
 Massachusetts had as much control of Harvard 
 College as of anything which it undertook to man 
 age, and the right of the Commonwealth to this 
 control, was never questioned up to 1810. There 
 were collisions frequently between the board of 
 overseers and the corporation ; but, without going 
 into the history of the matter fully, I am pre 
 pared to stand upon that statement, that up to 
 1810, the corporation of Harvard College never 
 questioned the right of the Commonwealth to an 
 absolute and entire control of the institution, in 
 every particular. That fact, as a matter of contem 
 poraneous history, is perfectly conclusive, and it 
 establishes a right of the legislature to control that 
 college, which nobody claims that the legislature 
 has over any other institution, or it establishes a 
 
59th day.] 
 
 NEW TOWNS, &c. 
 
 77 
 
 Saturday,] 
 
 BIRD GILES WILSON HOOPER. 
 
 [July 16th. 
 
 relation between that institution" and the Com 
 monwealth, which exists between no other insti 
 tution and the State. The very existence of this 
 special relation under the Constitution, implies 
 that the Commonwealth has a right to control it, 
 and we do not mean, by striking out that clause, 
 to admit that the relation between Harvard Col 
 lege and the Commonwealth, is the same as that 
 between any other institution and the Common 
 wealth. I have no doubt, that when gentlemen 
 see the bearing of this matter, it will be retained. 
 
 In relation to the Report of the Committee, I 
 suppose it is not improper for me to say, that the 
 chairman of the Committee that made this Re 
 port, (Mr. Briggs,) was, at the time that he made 
 it for, being on the Committee on Harvard Col 
 lege, he expressed that opinion to that Committee 
 in favor, as a matter of personal preference, of 
 dissolving the connection between the Common 
 wealth and Harvard College. But, gentlemen 
 will remember that he yesterday assented to the 
 resolution adopted by the Convention in relation 
 to Harvard College, thus abandoning the ground 
 he had previously taken, that as a matter of pol 
 icy, it was better to abandon all connection with 
 the college. The striking out of this phrase, is a 
 part of the policy of severing the connection. 
 The chairman of the Committee may have been 
 in favor of that policy, but we all understood him 
 yesterday, to have changed his opinion upon that 
 matter ; and, therefore, we are at liberty now to 
 assume that he would be opposed to striking out 
 this clause. I trust the motion will not prevail. 
 
 Mr. GILES, of Boston. The gentleman from 
 Walpole, who has just taken his seat, has alluded 
 to a subject which I suppose he has correctly 
 stated. The chairman of the Committee to which 
 this subject was referred, was also a member of 
 a Committee to which the first section was re 
 ferred. I cannot speak for that Committee, nor 
 do I know whether any member of that Commit 
 tee is present; but my impression is, that this 
 Report was made in the expectation that the 
 Committee to which the other subject was re 
 ferred, would strike out everything relating to 
 Harvard College, and the Report of the Com 
 mittee to which the first section was referred 
 being adopted, this resolution was expected to 
 fall, as a matter of course. I may be mistaken, 
 but whether it be so or not, I think it is better to 
 let this stand, without going to the mooted ques 
 tion, whether this be a public institution in the 
 sense of the common law, thereby giving the 
 State power over it. I think there is another 
 reason for retaining it, which is this : that this 
 beautiful section, which I so greatly admire, after 
 making it the duty of the legislature to cherish 
 
 " all seminaries of them," to wit, of science and 
 literature, then specifies such seminaries as the 
 State then had, and such as she always means to 
 have, and always ought to have, to wit : a uni 
 versity, and " public schools, and grammar schools 
 in the towns." 
 
 That system of common school education, be 
 ginning now, I believe, with the primary school 
 for almost infants, in fact, as well as in law, and 
 terminating in your university, is that which it 
 was designed that the legislature should cherish. 
 I wish it to stand, for that reason, that it may al 
 ways be known that we have a university, and 
 public schools and grammar schools in towns, as 
 making up a part of the seminaries of learning 
 which we are to cherish in all time to come, trac 
 ing back their origin to that short and pithy 
 clause which has been the admiration of the 
 whole world, and deservedly so. I am, therefore, 
 in favor of retaining that section as it stands. 
 
 The question was then taken on the final pas 
 sage of the resolve, and there were, on a division, 
 ayes, 19 ; noes, 108. 
 
 So the resolution was rejected. 
 
 On motion by Mr. WILSON, of Natick, the 
 Orders of the Day were laid 011 the table. 
 
 Iiicorporation of New Toions. 
 
 Mr. WILSON. I now move that the Com 
 mittee of the Whole be discharged from the far 
 ther consideration of the resolution in relation to 
 the incorporation of new towns. 
 
 The motion was agreed to. 
 
 Mr. WILSON. I now move that the rules of 
 the Convention be suspended, in order that that 
 resolution may be considered at the present time. 
 
 The motion was agreed to, and the Convention 
 proceeded to its consideration. 
 
 The resolution is as follows : 
 
 Resolved, That the Constitution be so amend 
 ed, that hereafter no town shall be incorporated 
 with less than fifteen hundred inhabitants. 
 
 Mr. HOOPER, of Fall River. I would in 
 quire if we have not already passed upon that 
 question, when we acted upon the resolves relat 
 ing to the House of Representatives ? 
 
 Mr. WILSON. I do not so understand it. It 
 may be necessary that the legislature should in 
 corporate a town with less than fifteen hundred 
 inhabitants, although that town may not be enti 
 tled to a representation in the House of Repre 
 sentatives. It has been necessary, heretofore, and 
 although we have provided that a new town with 
 less than fifteen hundred inhabitants shall not be 
 represented, yet, if a town wishes to be incorpo 
 rated without the right of representation, and it 
 
78 
 
 NEW TOWNS. 
 
 [59th day. 
 
 Saturday,] 
 
 GARDNER BIGELOW HOOPER RANTOUL FROTHINQHAM. 
 
 [July 16th. 
 
 is for their interest to be incorporated, I see no 
 objection to it. I therefore move, that the farther 
 consideration of the resolution be indefinitely 
 postponed. 
 
 Mr. GARDNER, of Seekonk. I have only a 
 single word to say, with regard to this question. 
 I am very desirous that the resolution should pass, 
 in some form, and, if it were admissable, I should 
 like to move an amendment that no town should 
 be incorporated hereafter, with less than one 
 thousand inhabitants. If the provision stands as 
 it is, with regard to representation, and 110 town 
 can be incorporated with less than fifteen hun 
 dred inhabitants, it may deprive some towns of 
 privileges which they ought to possess. I hope 
 the motion of the gentleman from Natick will 
 not prevail, and that there will be an opportunity 
 offered to amend the resolution, and that it may 
 then be passed. I think it will deprive certain 
 towns in the Commonwealth of privileges which 
 they ought to possess, and which I can conceive 
 no reason why they should not enjoy. The gen 
 tleman from Natick lives in a very flourishing 
 town, which is growing up and becoming wealthy ; 
 and, I suppose, he does not care so much for the 
 interests of the smaller towns adjoining, which 
 wish to be incorporated ; at least, he is not solic 
 itous that they should be incorporated, and have 
 the right of representation on the floor of the 
 House of Representatives. I know that when 
 the basis of representation was fixed, it was pro 
 vided that fifteen hundred inhabitants should be 
 required, to entitle a new town to a representa 
 tive, and I am opposed to that also. I wish, if 
 the gentleman from Natick has no objection and 
 I can see no reason why he should have any he 
 would withdraw his motion, that this resolution 
 may be modified. 
 
 Mr. BIGELOW, of Grafton. I do not see 
 why, if this motion to postpone the resolution in 
 definitely prevails, we are not left in a position 
 that we may incorporate a town with any number 
 of inhabitants we please. "Why do we need to 
 put this provision in the Constitution ? Why 
 shall we say that any town with six hundred in 
 habitants, shall rot be incorporated, if they please ? 
 It seems to me it is very proper to postpone this 
 subject indefinitely. 
 
 Mr. HOOPER, of Fall River. I see that this 
 resolution is somewhat different from the one in 
 relation to the basis of representation, but it does 
 not seem to me to embrace all that it ought to. 
 That provides that no town shall be incorporated, 
 with the right of representation, with less than 
 fifteen hundred inhabitants ; but there is no decla 
 ration that the town shall not be divided in a 
 manner so as to leave less than fifteen hundred 
 
 in the old town. So that I do not see, but that 
 with this provision, a town might be divided so 
 as to leave only one thousand, and create a new 
 town with iit teen hundred, which would be 
 evading the object of the provision on the basis 
 of representation. I would suggest to the gen 
 tleman from Natick, that he withdraw his motion, 
 and allow the resolution to be amended so as to 
 read : that no town shall be incorporated when, by 
 the division of a town, there are less than fifteen 
 hundred inhabitants left in the town from which 
 the new town shall be taken. 
 
 Mr. RANTOUL, of Beverly. It appears to 
 me that this subject had best be left with the 
 legislature. I think we should not impose any 
 restrictions. Circumstances may occur, when it 
 may be necessary to incorporate a town with a 
 less number, and it may be exceedingly desirable 
 to persons that the town shall be incorporated, and 
 it may be for their convenience, and for the pub 
 lic interest, that it should be done. It seems to me 
 there can be no necessity or advantage in impos 
 ing such a restriction upon the legislature that 
 they cannot make such laws as are desirable from 
 time to time. 
 
 Mr. FROTHINGHAM, of Charlestown. I 
 agree with the gentleman from Beverly, who has 
 just spoken. I hope the resolution will be post 
 poned. It seems to me, it is entirely inexpedient 
 and wrong in principle. If there has been any 
 policy wliich has distinguished Massachusetts, and 
 made us what we are, it has been the policy of 
 incorporating towns. I should like to know if a 
 community, living on contiguous territory, wishes 
 to enjoy town privileges, and comes up to the 
 legislature, be it five hundred, or fifteen hun 
 dred inhabitants, and asks the benefits of a town 
 incorporation, what argument can be adduced to 
 show that they should not enjoy those privileges. 
 The question in relation to town representation, 
 is another thing entirely, and ought not to be 
 connected with it ; that is, the principle of local 
 self-government is one thing, and the principle of 
 representation, is another, and the latter is always 
 provided for. But, as to the question of the pol 
 icy and the propriety of incorporating towns, 
 there can be naturally but one answer given to it, 
 and but one true view of it, and that is, to incor 
 porate them, whenever good and sufficient rea 
 sons can be shown for doing it. 
 
 The more towns we have, and the more power 
 is subdivided in Massachusetts, or anywhere 
 else, the sounder will be our republicanism. 
 That is my view of this matter. 
 
 It has been the policy of Massachusetts, from 
 the earliest times, to multiply towns ; and it has 
 been the object also, of those who have endea- 
 
59th day.] 
 
 NEW TOWNS. 
 
 79 
 
 Saturday," 
 
 FHOTHINGHAM. 
 
 [July 16th. 
 
 vored to restrict Massachusetts, to restrict the 
 incorporation of towns. Long before the Revo 
 lution, there was an order sent over here from 
 the British administration, prohibiting our gov 
 ernors from assenting to the incorporation of 
 towns ; and we took the ground here, that it was 
 a natural right which the people had, to enjoy 
 self-government, and so, when they could not 
 get at the name of towns, they incorporated them 
 selves under the name of precincts, parishes, or 
 something else, in order to get as much of the 
 value of this self-government as possible. 
 
 As long as I am up, I will take occasion to 
 make a few remarks respecting one other point, 
 in relation to the origin of our towns. I have 
 heard it stated by the venerable gentleman before 
 me, (Mr. Morton,) and some others have said 
 the same thing, that our towns came from the 
 custom of making forts, and perhaps out of some 
 other institutions, such as the church. Indeed, 
 this is a very common opinion. I am not 
 going into a long speech about this matter, but 
 merely to state a fact or two, or a view that has 
 grown up out of facts in relation to this subject. 
 Let any one go back and trace out how it was 
 that Boston, and Lynn, and Salem, and all the 
 earlier towns, came to be incorporated, came to 
 be towns, not how they came by their territory, 
 but more precisely how they came to have their 
 form of town government. Did they obtain this 
 right from the first charter ? did they come by it 
 from a law of the British Parliament ? Did they 
 copy the example of England, in relation to 
 towns, and follow on in an old custom, as to 
 electing town officers ? No ! not at all ! They 
 had no warrant for what they did, neither in the 
 charter, the statute, nor usage. "When Sir Ed 
 mund Andros came over here, and saw the beau 
 tiful operation of the towns, their democratic 
 feature, their republicanism, their great popular 
 privileges, he was jealous of the spread of Com 
 monwealth notions, and saw that these towns 
 were nurturing a principle anything but in har 
 mony with the British Constitution. But there 
 was no British law to justify this system, noth 
 ing to justify a town, in the New England sense 
 of the term, and when selectmen, in resisting his 
 arbitrary laws, pleaded town action, he snapped 
 his fingers at them, and told them there was no 
 such thing as a town in all New England. And 
 Sir Edmund Andros was right. He took his 
 idea of towns from Old England ; and there was 
 no comparison at all, as to government, between 
 the towns of New England and the towns of Old 
 England. That is, the governments of the towns 
 of Old England were close corporations, self- 
 elected councils, little oligarchies, without a single 
 
 valuable popular right. There was no such thing 
 as this in New England. How came we by our 
 town government ? This is a short story of the 
 matter : When our people came over here, they 
 acted, at first, in town meeting, all together ; they 
 were so many little democracies. But they soon 
 found that this mode of determining town affairs 
 was too inconvenient ; it took up too much time ; 
 and what did they do next ? Their object was to 
 remedy an evil, and to provide for a necessary 
 want. I can point gentlemen to the original con 
 stitution of a board of selectmen. The inhab 
 itants of the towns came together, before there 
 was any law of the general court in regard to the 
 matter years before and signed an instrument, 
 to the effect that, inasmuch as the trouble of these 
 frequent town meetings was so very great, they 
 would agree to be bound by what seven of their 
 number should do, as though it were done by 
 them. Then followed the election of those offi 
 cers, and other officers ; and this was done in 
 Charlestown, and it was done in other towns, 
 before there was any law to regulate elections. 
 Such was the origin of the towns, and of town 
 government. The people brought with them the 
 great idea of popular sovereignty, and all through 
 it was a struggle to apply this to their condition. 
 They applied it to a town or local form of gov 
 ernment, assuming the right to do it, before there 
 was any law or practice to authorize or to justify 
 it. In a few years the general court reorganiz 
 ed the towns, and made laws to regulate their 
 proceedings, and so it has gone on from that 
 time to this, to the immense advantage of the 
 country. 
 
 Now, I am in favor of allowing this great idea 
 to be established, viz. : That the people have a 
 right to be incorporated into new towns when the 
 growth of the community and the increase of pop 
 ulation and change of interests in certain localities 
 leads individuals to apply for town privileges. I 
 see nothing in the whole system but benefits to 
 the communities concerned, from allowing them 
 to divide, and granting to them the right and priv 
 ilege of self-government. I have been here upon 
 this floor when large towns and old towns have 
 been divided, when the progress of business and 
 population have created in certain localities large 
 interests, commercial or manufacturing interests, 
 it may be, distinct from the ancient agricultural 
 interests, where such new communities claimed 
 the right to manage their own local concerns in 
 their own way ; or it has been the other way, 
 that is : the agricultural interest has claimed that 
 it ought not to be taxed to support the commer 
 cial interest, as in the case of Somerville and 
 Charlestown. Now, what argument can be 
 
80 
 
 NEW TOWNS, &c. 
 
 [60th day. 
 
 Monday,] 
 
 LELAND HOOPER GARDNER BROWN SARGENT. 
 
 [July 18th. 
 
 brought against such claims ? There is no argu 
 ment ; nor is there evil in creating towns for such 
 reasons ; and I am in favor of keeping this where 
 it is that is, of leaving the whole matter with 
 the legislature. 
 
 Mr. LELAND, of Holliston. I think this 
 matter ought not to be indefinitely postponed at 
 this time ; for I think, with the gentleman from 
 Fall River, that there is a necessity for amending 
 this resolve. Suppose it should pass in its pres 
 ent form, and hereafter a town with twenty- five 
 hundred inhabitants should wish to be divided so 
 as to get additional representation. We do not 
 know what may happen, and it is wise to provide 
 for it. Well, Sir, fifteen hundred of the inhabit 
 ants can be set off and incorporated into a new 
 town, and the thousand who are left will also be 
 entitled to their town rights. I think this is 
 something which we ought to provide for, and, 
 therefore, I hope that the resolution will be amend 
 ed accordingly. 
 
 Mr. HOOPER, of Fall River. I move to 
 amend this resolve by striking out all after the 
 word " incorporated," and inserting the words 
 " by a division of a town, leaving less than fif 
 teen hundred inhabitants in the town from which 
 the new town shall be taken," so that the resolve, 
 as amended, will read as follows : 
 
 Resolved, That the Constitution be so amended 
 that hereafter no town shall be incorporated, by 
 a division of a town, leaving less than fifteen 
 hundred inhabitants in the town from which the 
 new town shall be taken. 
 
 I fully agree with the remarks of the gentleman, 
 and see no necessity for putting any barrier in the 
 way of an unlimited incorporation of towns, that 
 is not necessary to guard it in relation to represen 
 tation ; it has already been guarded in one respect, 
 and it seems to me to be necessary that it should 
 also be guarded in the other. 
 
 Mr. GARDNER, of Boston. Mr. President: 
 It is the first time that I have made the motion 
 which I now make, in this Convention, and it 
 will probably be the last ; but, Sir, I am not in 
 favor of sitting here and doing business in the 
 absence of a legal quorum of this body. I am of 
 the opinion that there is not a quorum now pres 
 ent, and I therefore make the motion that the 
 Convention do now adjourn. 
 
 Mr. SCHOULER. For the purpose of deter 
 mining whether there is a quorum or not, I ask 
 for a division. 
 
 The question being taken, on a division, there 
 were ayes, 38 ; noes, 59 no quorum voting. 
 
 Mr. WILSON, of Natick, moved that the Con 
 vention adjourn. 
 
 The motion was agreed to ; and accordingly, at 
 twenty minutes before two o clock, the Conven 
 tion adjourned. 
 
 MONDAY, July 18, 1853. 
 
 The Convention assembled pursuant to ad 
 journment, and was called to order by the Presi 
 dent, at nine o clock. 
 
 Prayer by the Chaplain. 
 
 The Journal of yesterday was read. 
 
 Limitation of Speeches. 
 
 Mr. BROWN, of Medway, submitted an order 
 that hereafter all speeches, except those of the 
 chairmen of Committees, be limited to fifteen 
 minutes each. 
 
 The order was laid over for consideration to 
 morrow. 
 
 Orders of the Day. 
 
 On motion of Mr. WILSON, of Natick, the 
 Convention proceeded to the consideration of the 
 Orders of the Day, the first subject being the 
 resolve on the subject of the 
 
 Incorporation of New Towns, 
 Which is as follows : 
 
 Resolved, That the Constitution be so amended 
 that hereafter, no town shall be incorporated with 
 less than fifteen hundred inhabitants. 
 
 To this resolve an amendment had been moved 
 by the gentleman from Fall River, (Mr. Hooper,) 
 and Mr. Wilson, of Natick, had moved its indefi 
 nite postponement. 
 
 Mr. SARGENT, of Cambridge. I am opposed 
 to the amendment, and in favor of the motion of 
 the gentleman from Natick. I believe we are 
 attempting to establish a false principle in the 
 Constitution. I do not believe that the question 
 of the incorporation of new towns can be settled 
 upon mere numbers ; it must be settled upon the 
 circumstances which surround each particular 
 case. There may be a case where it would be of 
 the utmost importance that a new town should 
 be incorporated, where there were not more than 
 five or six hundred inhabitants ; and in other 
 cases it might neither be proper or just to incor 
 porate a town, although there were more than 
 fifteen hundred. I presume that the object of 
 this amendment is to remedy an evil which it is 
 feared may grow out of our basis of represent 
 ation. If that be the case, to my mind it affords 
 no argument in favor of adopting another wrong 
 principle, because two wrongs can never make a 
 
60 tli day.] 
 
 NEW TOWNS. 
 
 81 
 
 Monday,] 
 
 SARGENT EARLE HOYT. 
 
 [July 18th. 
 
 right. The amendment is proposed for the pur 
 pose of preventing the legislature from so dividing 
 a town that the original town shall be deprived 
 of its annual representation. Now, Sir, this 
 matter of dividing towns, or creating new towns, 
 is a mere matter of profit and loss. The legis 
 lature have always required, and I believe, 
 always will require, that the petitioners for a new 
 town should make out a clear and undeniable 
 case, that the benefits to be derived from the 
 incorporation of that town were greater than the 
 evils to be inflicted ; and whenever such a case 
 is made out, irrespective of numbers, then I hold 
 that the power should be vested in the legislature 
 to grant the prayer of the petitioners. Suppose 
 that a petition comes before the legislature for a 
 division of a town in this Commonwealth in such 
 a manner that the original town will have less 
 than one thousand inhabitants, and will thereby 
 be deprived of a portion of its representation. 
 That is an element, and it is one of great weight 
 for the legislature to consider. It is one of the 
 elements of law, and unless they can show that 
 benefits are to be derived which will more than 
 counterbalance the evils, the legislature will never 
 so dissever a town. I hold, therefore, that the 
 adoption of this resolution, either as it was origi 
 nally reported, or as it is proposed to be amended, 
 would be ingrafting a false principle in the Con 
 stitution ; it would be fettering the legislature 
 upon an important subject, and one which, it is 
 altogether safer to leave in their hands, so that 
 each case may be decided upon its real merits, 
 instead of being decided upon mere numbers. 
 I hope, therefore, that the amendment will be 
 rejected, and that the motion of the gentleman 
 from Natick will prevail. 
 
 Mr. EARLE, of Worcester. I am opposed to 
 the amendment, which is offered, because, it ap 
 pears to me, that it creates just as great an evil as 
 it attempts to remedy. It proposes to strike out 
 the provision by which no new town shall be in 
 corporated with less than fifteen hundred inhabi 
 tants, and to provide that no old town shall be left, 
 by the incorporation of a new one, with less than 
 fifteen hundred inhabitants. It permits, in fact, 
 that a new town may be incorporated with only 
 five hundred inhabitants ; but it says, that by so 
 doing, you shall not leave an old town with less 
 than fifteen hundred. Now, Sir, I am opposed 
 to any provision of this kind. I think that these 
 town corporations are intended for the benefit 
 of the inhabitants. They have little to do with 
 territorial arrangements, except so far as they tend 
 to the convenience of the inhabitants for their 
 municipal concerns ; and wherever the conven 
 ience of the people requires a municipal corpora- 
 
 6 3 
 
 tion of this kind, although there may not be more 
 than a thousand or twelve hundred, I see no rea 
 son why they should not have it. I am, there 
 fore, opposed to having any provision inserted 
 into the Constitution in relation to this matter. 
 I think that the provision, which has already 
 been agreed to, that no town shall be incorporated, 
 with a right to representation, as such, which had 
 less than fifteen hundred inhabitants, is all that 
 we need to do, and all the restriction that we 
 need to impose. If a population of a thousand, 
 or twelve hundred, suppose they will be better 
 accommodated by a town corporation, without 
 the right to representation, except as connected 
 with the town from which they are to be set off, 
 and choose to take an act of incorporation under 
 such circumstances, I see no reason why they 
 should not have it. They would then be placed 
 in the situation of corporations formerly made, 
 where districts were established, having all the 
 rights of towns except that of representation. I 
 see no reason why that right should not be still 
 given, and therefore I am opposed both to the 
 amendment and to the original proposition, and I 
 hope that neither of them will pass. 
 
 Mr. HOYT, of Deerfield. I must confess that 
 the form of the proposition, as proposed to be 
 amended, does not meet my view ; but yet I do 
 think that it is important that some provision, 
 should be inserted into the Constitution, to regu 
 late the creation of new towns. As was remarked 
 by the gentleman from Cambridge, (Mr. Sargent,) 
 this subject is intimately connected with the sys 
 tem of representation which this Convention have 
 adopted ; but, if I understood him, he seemed to 
 assume that that system was wrong, and that w 
 could not make a provision to secure a thing which 
 was wrong, that would not itself be wrong. But 
 to those who consider that the system of repre 
 sentation is right, of course, his reasoning would 
 not apply. I think that this is a matter which 
 should not be left entirely to the control and di 
 rection of the legislature ; but, that the towns 
 themselves should have a voice in this matter ; and 
 I should like a provision that new towns should not 
 be incorporated without the consent of a majority 
 of the voters of the town from which the territory 
 was to be created. As towns are incorporated for 
 the convenience of the inhabitants, I regard those 
 inhabitants as the best judges of the importance, 
 or the necessity, or propriety, in every case, of 
 making a new town, or of making a very material 
 change in the limits of a town, especially if the 
 system of representation which has been adopted 
 by this Convention, should be ratified by the 
 people. 
 
 Mr. EARLE. There is one objection, which 
 
82 
 
 NEW TOWNS. 
 
 [60th day. 
 
 Monday," 
 
 EARLE CHURCHILL HALLETT. 
 
 [July 18th. 
 
 has suggested itself to my mind, against having 
 any provision of this kind, and that is this : There 
 are cases very strong cases sometimes which re 
 quire the incorporation of new towns where there 
 may not be this number of inhabitants ; and there 
 will be a very great tendency, if a provision of 
 this kind is ingrafted into the Constitution, to in 
 clude inhabitants who would not choose to go to 
 the new towns, to enlarge the limits, and thereby 
 inflict an injury upon those who are thus taken 
 in. It appears to me that we gain nothing by 
 this proposition. I do not see any advantage in 
 it. I regard the legislature as the proper judge, 
 whether there is a good cause or not, for the in 
 corporation of a town, because they will have all 
 the facts before them ; they can better judge 
 whether a town ought to be incorporated, with 
 twelve or thirteen hundred inhabitants, than we, 
 sitting here without any facts before us, possibly 
 can do. I think, therefore, that if we leave the 
 Constitution as it is, we shall do the best thing 
 that we can do. 
 
 Mr. CHURCHILL, of Milton. I am certainly 
 in favor of some restriction of this sort, and shall 
 vote for the amendment proposed by the gentle 
 man for Wilbraham, (Mr. Hallett). I think it 
 is essentially necessary that a restriction should 
 be placed upon the creation of additional towns, 
 for this reason : It strikes me, that one of the 
 evils which may grow out of the basis of repre 
 sentation for the lower House, which we shall 
 probably adopt, is a large increase in the size of 
 that body. That evil, every gentleman must see, 
 is liable to be increased by the cutting up of large 
 towns into one, two, or three additional towns, 
 having between one and four thousand inhab 
 itants, which are now entitled to send one rep 
 resentative to the legislature. In that way, your 
 House of Representatives may be, by political 
 parties, and influenced by political motives, in 
 creased, year after year, to a size which every one 
 will regret to see. For that reason, I shall vote 
 for some restriction. 
 
 Mr. HALLETT, for Wilbraham. I wish to 
 suggest, for the consideration of the Convention, 
 whether the gentleman s amendment ought not 
 to go farther, so as to prevent the possibility of 
 one town dividing itself into two or three towns, 
 and thus multiply its representation ? It is pro 
 posed, in the basis of representation, that no new 
 town shall be created, with a right of representa 
 tion, having a population of less than fifteen 
 hundred inhabitants. Now, if this provision 
 should pass, or if there be no limitation in that 
 respect, will not this state of cases arise all over 
 the Commonwealth? For example: Here is a 
 town with two thousand five hundred inhabitants, 
 
 which is now entitled to send one representative, 
 and, remaining a town, intact and undivided, by 
 no process under the basis of representation 
 could it be entitled to more than one representa 
 tive, until it had nearly doubled its population. 
 Yet, that town of twenty-five hundred inhabi 
 tants, by taking off fifteen hundred, may make a 
 new town, and, in such case, the new town at 
 once acquires the right of representation ; be 
 cause, according to the proposed Constitution, the 
 new town, with fifteen hundred inhabitants, will 
 be entitled to a representative, while you cannot 
 possibly take away the representation from the 
 old town, with one thousand inhabitants ; and 
 thus, by this division, such town with twenty-five 
 hundred inhabitants, will obtain two representa 
 tives. Now carry this rule to a town having 
 forty -five hundred inhabitants, and, by taking 
 out twice fifteen hundred inhabitants you will 
 enable the town, so divided, to send three repre 
 sentatives instead of two. 
 
 It seems to me that by such a course you place 
 the House of Representatives somewhat in the 
 position the British Constitution places the in 
 crease of the House of Lords, by which the crown, 
 whenever it is desirable to carry any measure in 
 the House of Lords, and the lords being refractory 
 and opposed to it, may create a sufficient number 
 of additional peers, so as to obtain a majority. 
 Even the threat to make new peers, carried the 
 Reform Bill. And, Sir, may not any party in 
 this House that desires to carry a particular meas 
 ure at a future election, manufacture new towns 
 out of old ones, and go on in this way and send 
 forty or fifty additional representatives ? I want 
 therefore to guard against this, by a provision 
 that new towns shall not add to the representation 
 of the old towns, or one similar to that existing in 
 the Constitution of the United States, which pro 
 vides that no new State shall be formed or erected 
 within the jurisdiction of any other State, nor 
 any State be formed by the jurisdiction of two or 
 more States, or parts of States, without the consent 
 of the legislatures of the States concerned. I 
 want a provision of some kind here, so far as to 
 say that no new town shall be created within the 
 limits of an existing town so as to increase the 
 representation of the old and new towns, put 
 together so that if the legislature makes a new 
 town with fifteen hundred inhabitants, out of an 
 old town, leaving one thousand, they shall not do 
 it so as to multiply its particular representation 
 within that territory ; because I regard the basis 
 we propose, and which always has prevailed, 
 (and that is the only principle upon which I can 
 stand,) as a representation of communities, in the 
 town or towns, and in that capacity as all copart- 
 
60th day.] 
 
 NEW TOWNS. 
 
 83 
 
 Monday,] 
 
 HALLETT GRAY WILSON KINSMAN. 
 
 [July 18th. 
 
 ners entering into an arrangement in regard to 
 their representation in this House ; and I do not 
 want any new partner to come in until I know 
 on what terms, and with what capital he is to be 
 admitted. Although there may be cases in which 
 it will be necessary to incorporate new towns for 
 convenience, with fifteen hundred inhabitants or 
 under that number, I am convinced that there 
 ought to be a provision incorporated into the 
 Constitution, determining that these towns, thus 
 divided, cannot multiply their representation, 
 because, as we have seen, it would be the easiest 
 thing in the world for any town, with over 2,500 
 inhabitants, to divide itself into two towns, and 
 have more representatives than its just proportion, 
 and which could not be done by the smaller towns 
 or larger cities. The city of Boston, perhaps, 
 could not do it very conveniently but, upon the 
 same principle, she might divide her twelve wards 
 into one hundred towns, of fifteen hundred in 
 habitants each, and thus multiply her representa 
 tion indefinitely. I wish to guard against any 
 such objection to the proposed basis. 
 
 Mr. GRAY, of Boston. I do not think that 
 we can adopt this restriction without injustice to 
 the people of the Commonwealth. The gentle 
 man for Wilbraham, (Mr. Hallett,) will not sus 
 pect me of being very much in favor of a large 
 House of Representatives, or of thinking that the 
 House the Convention has already provided for, 
 is not large enough ; but I do think that to insert 
 a provision preventing towns from being formed 
 for fear of having too large a House, is inflicting 
 upon them an evil which ought to be guarded 
 against in some other way that is by some pro 
 vision as to representation. I do not hold and 
 I suppose that no gentleman holds that the sole 
 purpose of the creation of towns is, that they may 
 be represented as towns in the legislature. I had 
 supposed that the greater part of the benefits 
 which result from town government, result, so to 
 speak, from what may be called their operation 
 downwards from the people of the town, and not 
 from their operation upwards in this House of the 
 legislature. In this, I believe, is the greater part 
 of the benefits which accrue to the towns from 
 their particular organization as such. It is enough, 
 I think, to say that many benefits result from the 
 operations of these town governments in their 
 internal structure, and I agree with the gentleman 
 from Worcester, that we may deprive them of 
 great advantages, and inflict upon them many 
 positive evils by a provision of this kind. I think 
 the whole matter can be safely left where it has 
 always been in the hands of the legislature. 
 
 Mr. HALLETT. Is it in order to offer an 
 amendment to the amendment ? 
 
 Mr. PRESIDENT. It is in order. 
 Mr. HALLETT. Then I move to amend the 
 amendment by adding to it the following : 
 
 " But the incorporation of any new town shall 
 not thereby increase the whole number of repre 
 sentatives." 
 
 Mr. EARLE. I wish to hear the amendment 
 read as it is proposed to be amended. 
 It was accordingly read, as follows : 
 
 Resolved, That the Constitution be so amended, 
 that no town hereafter shall be incorporated with 
 less than fifteen hundred inhabitants, but the 
 incorporation of any new town shall not thereby 
 increase the whole number of representatives. 
 
 Mr. WILSON, of Shelburne. It seems to me 
 that such a provision as that involved in the 
 amendment of the gentleman for Wilbraham, 
 (Mr. Hallett,) will amount almost to an entire 
 prohibition in regard to the formation of any new 
 towns. As I understand the matter, it would, 
 in some instances, operate very hardly. Let me 
 suppose a case. Suppose, for instance, that just 
 upon the border of any town having fifteen hun 
 dred inhabitants, some manufacturing establish 
 ment shall be originated, forming a nucleus for a 
 new population. Suppose, farther, that the man 
 ufacture flourishes, and the people gather togeth 
 er in that vicinity in sufficient numbers to war 
 rant them taking a very small portion from the 
 old town in applying for a town organization, 
 their convenience and prosperity being thereby 
 greatly promoted. Will anybody say that it 
 shall be refused ? On what grounds ? It may 
 be all very right and proper, but I must confess 
 that I do not see it so. To say that there shall 
 be no new corporation granted unless the popu 
 lation of the town from which the new one is to 
 be taken amounts to fifteen hundred, I think is 
 unreasonable, and that no such provision should 
 be adopted. I think it would be unsatisfactory 
 to the people. There are large sections of the 
 country and various interests which are anxious to 
 have new towns ; and, with such a provision as 
 this in your Constitution, I think they will be 
 very likely to vote against it, when the question 
 of adoption or rejection comes to be tried. 
 
 Mr. KINSMAN, of Newburyport. The prop 
 osition of the gentleman for Wilbraham, is one 
 which I cannot but regard as unequal and unjust, 
 and it will be found, that if we once commence 
 this course of injustice, it will follow throughout. 
 It appears to me that nothing can be more unjust 
 than the proposition now before the Convention. 
 I have, in my mind s eye, a town about ten 
 miles in length and three in breadth, a portion of 
 
84 
 
 NEW TOWNS. 
 
 [60th day. 
 
 Monday,] 
 
 EARLE HOYT FROTHINGHAM SCHOULER. 
 
 [July 18th. 
 
 which is largely engaged in manufacturing, and 
 there is very little doubt that it is soon destined 
 to be a city. Now such being the case this 
 establishment being in the centre of the town 
 neither extremity will have population sufficient 
 to make a town of fifteen hundred inhabitants, 
 and consequently, after the city is set off, neither 
 of them will have a town organization. What 
 then is to become of these extremities? The 
 farming part of that town do not want to pay 
 for gas, and other matters appertaining to a city ; 
 they do not want to pay for that class of schools 
 from which they receive no benefit. These appear 
 to me to be reasons why the matter had better be 
 left to the legislature to arrange, as circumstances 
 from time to time may require. I shall, there 
 fore, vote against the amendment. 
 
 Mr. EARLE, of Worcester. It will be recol 
 lected that we have already adopted a provision, 
 that towns shall not be incorporated with less 
 than fifteen hundred inhabitants with the right 
 of representation, and that is also naturally a 
 provision against the incorporation of any town 
 which shall leave another town with less than 
 fifteen hundred inhabitants. It appears to me 
 that that is going quite as far as we ought to go 
 in regard to the restriction. The case which has 
 been stated by the gentleman from Newburyport, 
 is much in point, showing that cases of great 
 hardship may arise, by any provision of a kind 
 like that which it is now proposed to insert. 
 From my own observation, I know that there 
 would be many similar cases. 
 
 The question was then taken on the amend 
 ment to the amendment, and it was rejected. 
 
 The question next recurring on the amendment 
 offered to the Report of the Committee, by the 
 gentleman from Fall River, it was decided in the 
 negative, and the amendment was rejected. 
 
 The PRESIDENT. The question HOAV recurs 
 on the motion of the gentleman from Natick, 
 (Mr. Wilson,) that the farther consideration of 
 this subject be indefinitely postponed. 
 
 Mr. HOYT, of Deerfield. Before the question 
 is taken on that motion, I wish to offer an amend 
 ment. It is as follows : 
 
 Strike out all after the word " incorporated," 
 and insert " without the consent of the town or 
 towns, from which the territory shall be taken." 
 
 So as to make the proposition read as follows : 
 
 Resolved, That the Constitution be so amended, 
 that hereafter no town shall be incorporated with 
 out the consent of the town or towns, from which 
 the territory shall be taken. 
 
 Mr. FROTHINGHAM, of Charlestown. I do 
 not know that it is necessary to say a word about 
 
 the amendment. I am strongly opposed to the 
 principle that no new towns shall be incorporated 
 unless the old ones consent to it. Why, Mr. Pres 
 ident, the strongest reasons for the incorporation 
 of new towns, are often the very reasons which the 
 old towns allege against it. The reason is, that the 
 new town has grown up with an interest about it 
 which is distinct and separate from the interest of 
 the old town, and, in view of those interests, it 
 comes to the legislature, and asks as a right, that 
 this new collection of people shall enjoy town 
 privileges that is to say, that they shall not be 
 taxed for things which they do not use. You 
 can find a great many instances, in the history of 
 even a few years past, of this kind. Take the 
 instance of the town of Charlestown and Somer- 
 ville, in which we of Charlestown were much 
 opposed to being divided, and nevertheless there 
 was in Charlestown a commercial interest, and in 
 Somerville an agricultural interest, and it was 
 not right, upon any principle of justice, that the 
 people of Charlestown should tax the agricultural 
 interest of Somerville for those things which the 
 commercial interest wished to enjoy, but which 
 the agricultural interest stood in no need of. But 
 I will not enlarge upon this point. It must strike 
 every one that the principle is radically unjust, 
 and I hope the amendment will not prevail. 
 
 Mr. SCHOULER, of Boston. I move to amend 
 the amendment by striking out the words " town 
 or towns," and insert the word " legislature." 
 
 The PRESIDENT stated, that if the amend 
 ment was adopted, the resolve would stand as fol 
 lows : 
 
 Resolved, That the Constitution be so amended 
 that hereafter no town shall be incorporated with 
 out the consent of the legislature, from which the 
 territory shall be taken." [Laughter.] 
 
 Mr. ADAMS, of Lowell, moved the previous 
 question. 
 
 Mr. SCHOULER withdrew his amendment. 
 
 Mr. HOYT, of Deerfield. I am not in the 
 habit of troubling the Convention, and I ask their 
 indulgence a single moment. 
 
 Mr. ADAMS. I withdraw my call for the 
 previous question. 
 
 Mr. HOYT, of Deerfield. In reply to the 
 remarks of the gentleman from Charlestown, (Mr. 
 Frothingham,) I would say that I have no doubt 
 there may be cases of injustice under this provis 
 ion, instances in which the old town will ob 
 ject to setting off the new town, in cases where it 
 is perfectly proper that the new town should be 
 set off. All agree that the multiplication of new 
 towns is an evil ; and that it may affect the sys 
 tem of representation which this Convention has 
 
60th day.] 
 
 NEW TOWNS. 
 
 85 
 
 Monday,] 
 
 HOYT UPTON BRA.DBUBY. 
 
 [July 18th. 
 
 adopted, any one may see with half an eye. But 
 neither will the legislature, if it is left to them, 
 always do justice in every case. The real evil is 
 the multiplication of small towns, and there must 
 be some limit upon it. I do not believe that the 
 inhabitants of the towns themselves will always 
 judge rightly arid justly ; but if it is true, as has 
 been said and reiterated, again and again, in this 
 Convention, that the people will decide more 
 correctly and justly, in regard to matters concern 
 ing themselves, than any other body can, then 
 the people, who are more directly interested in 
 this particular question, will be likely to decide 
 justly upon questions of this nature. I do not 
 believe, if there should arise a case of this na 
 ture, which should operate with great injustice 
 upon a particular body, that the people will sanc 
 tion it. I do not believe that the people will be 
 actuated by such motives as will lead them to 
 the commission of such injustice. I hope the 
 Convention will adopt the amendment no, I do 
 not hope that, for 1 think the sense of the Con 
 vention is not in favor of it but I wish they 
 would adopt it. 
 
 Mr. UPTON, of Boston. I propose to make 
 but one single remark upon this proposition. I 
 think that the suggestion of the gentleman for 
 Wilbraham is worthy of consideration, and enti 
 tled to weight before this Convention. There are 
 eighty- five towns in the Commonwealth now 
 entitled to one representative, and if the Conven 
 tion propose to leave the basis of representation 
 as it is now, and to make no modification in the 
 Constitution, restricting the incorporation of 
 towns, at the very next session of the legis 
 lature, after the next census shall have been 
 taken in 1855, you will have eighty-five more 
 representatives from those towns than you now 
 have. A state of things which will allow this, 
 ought not to exist ; but it is not for me, as one of 
 the minority of this Convention, to point out how 
 the evil should be remedied. Yet I suggest that 
 after your basis is changed, under the census of 
 1855, these eighty-five towns may be divided, 
 and there will come up here, from these towns, 
 eighty-five representatives more than they are 
 now entitled to send. I state this in order to 
 bring the attention of the Convention to the 
 consideration of its effect. 
 
 The question was then taken upon the amend 
 ment offered by the gentleman from Deerfield, 
 (Mr. Hoyt,) and it was decided in the negative. 
 
 So the amendment was rejected. 
 
 The question then recurred upon the motion 
 of the gentleman from Natick, (Mr. Wilson,) 
 that the consideration of the subject be indefinite 
 ly postponed. 
 
 Mr. BRADBURY, of Newton. I understand, 
 then, if this subject is indefinitely postponed, it 
 will be in the power of the legislature to increase 
 the number of the towns in the Common 
 wealth at pleasure, and that every town, ac 
 cording to the present basis of representation, that 
 shall hereafter be created, having one thousand 
 inhabitants, will have the right of constant repre 
 sentation. 
 
 Mr. EARLE. I would remark that we have 
 already restricted that right to towns having fif 
 teen hundred inhabitants. 
 
 Mr. BRADBURY, of Newton. Then every 
 town which shall be created, and having fifteen 
 hundred inhabitants, will be entitled to constant 
 repr esen tation. 
 
 If I understand the basis which the House has 
 established, in 1860, every town, whatever may be 
 its present rights, which shall not contain fifty - 
 five hundred inhabitants, will have but one 
 representative ; and in 1870, every town in the 
 Commonwealth not possessing eighty- three hun 
 dred inhabitants, will have but one representative. 
 As I understand it, the town of Nantucket is 
 now entitled to three representatives, and by the 
 ratio of increase in the basis, which we have 
 adopted, she will have but two representatives in 
 1860, and but one in 1870. There are towns in 
 the Commonwealth that will have about 16,000 
 inhabitants in 1870. Such is the town which you 
 represent, Mr. President, and the adjoining town 
 which I have the honor to represent, and they 
 will be entitled then to two representatives, 
 whereas they now have two representatives upon 
 four thousand of population. 
 
 That being the basis established by a majority 
 of this House, it affects very materially the ques 
 tion before this Convention, at the present time ; 
 and to postpone, indefinitely, action upon it, is 
 equivalent to a rejection of it, and will leave it in 
 the power of the legislature to increase this diffi 
 culty, and to increase the disproportion which 
 now exists. 
 
 Another thing, it most manifestly increases the 
 political motives which have ever existed for the 
 creation of new towns. There is a political mo 
 tive, every-body knows, and parties here have 
 been charged with being governed by such con 
 siderations, for the increase of the number of 
 towns, and so far as political considerations have had 
 any weight heretofore, they have been increased 
 by the decision of this Convention, most manifestly. 
 
 I think the consideration of the question ought 
 not to be idefinitely postponed, but that some 
 action should be had in reference to it. An in 
 definite postponement is equivalent to a rejection 
 of all action. 
 
86 
 
 ELECTIONS BY PLURALITY, &c. 
 
 [60 th day. 
 
 Monday,] 
 
 LIVERMORE HALLETT BUTLER. 
 
 [July 18th. 
 
 The question was then taken upon the motion 
 submitted by the gentleman from Natick, (Mr. 
 Wilson,) and it was decided in the affirmative 
 ayes, 133 ; noes, 46. 
 
 So the subject was indefinitely postponed. 
 
 Payment of Officers of the Convention. 
 
 Mr. LIVERMORE, of Cambridge, from the 
 Committee on the Pay Roll, submitted the fol 
 lowing Report : 
 
 COMMONWEALTH OF MASSACHUSETTS. 
 
 In Convention, July 18, 1853. 
 The Committee on the Pay Roll, who were 
 instructed by an order, adopted on the 27th of 
 June last, to report " a resolve for the payment 
 of the chaplain and other officers of the Conven 
 tion," have duly considered the subject, and 
 report the accompanying resolve. 
 For the Committee, 
 
 ISAAC LIVERMORE, Chairman. 
 
 Resolved, That there be paid out of the treasury 
 of the Commonwealth, to the several persons whose 
 names are borne on the accompanying list, for 
 each and every day s service, as follows : to the 
 two secretaries, ten dollars each ; to the chaplain, 
 three dollars ; to the messenger, five dollars; to the 
 two assistant messengers, three dollars each ; to 
 the door-keeper and three assistant door-keepers, 
 three dollars each ; to the postmaster three dol 
 lars ; to the four pages, two dollars each : and 
 the governor, by and with the advice and consent 
 of the council, is hereby requested to draw his 
 warrant on the treasurer for the same, on an order 
 of this Convention. 
 
 List of officers embraced in the above resolve : 
 
 William S. Robinson, James T. Robinson, Sec 
 retaries ; Warren Burton, Chaplain; Benjamin 
 Stevens, Messenger; Issachar Fuller, Tilson 
 Fuller, Assistant Messengers; Alexis Poole, 
 Door-Keeper ; David Murphy, William M. Wise, 
 John A. Sargent, Ass istant Door- Keeper s ; Wil 
 liam Say ward, Postmaster; Joseph P. Dexter, 
 Jr., Charles A. Murphy, James N. Tolman, Jr., 
 Thaddeus Page, Pages. 
 
 Negligence of Railroad Corporations. 
 Mr. HALLETT, for Wilbraham, from the 
 Committee appointed to consider the subject, 
 made the following Report : 
 
 COMMONWEALTH OF MASSACHUSETTS. 
 
 In Convention, July 18, 1853. 
 The Committee to whom was referred the order 
 relating to remedies to the representatives of per 
 sons killed by the negligence or misconduct of 
 railroad corporations, have considered the same, 
 
 and report, that there should be added to the 
 eleventh article of the Bill of Rights, the follow 
 ing clause : 
 
 Where death is caused through negligence or 
 misconduct, by means of railroads, steamboats, or 
 public conveyances for hire, the same remedies 
 shall be open in a suit at law, as for like injuries 
 to the person resulting in disability and not in 
 death. 
 
 B. F. HALLETT, Chairman. 
 
 The Report was referred to the Committee of 
 the Whole, and ordered to be printed. 
 
 The Late Member for Concord. 
 
 On motion by^ Mr. BUTLER, of Lowell, it 
 was 
 
 Ordered, That the Committee on the Pay Roll, 
 make up the per diem of the late delegate from 
 Concord, including the entire session. 
 
 Judiciary. 
 
 The next subject on the Orders of the Day, 
 being the resolves in relation to the Judiciary, 
 on motion by Mr. BUTLER, of Lowell, said 
 resolves were laid upon the table for the present, 
 for the purpose of going into Committee of the 
 Whole, on the subject of Elections by Plurality. 
 
 On motion by Mr. BUTLER, the Convention 
 resolved itself into 
 
 COMMITTEE OF THE WHOLE, 
 
 Mr. Hillard, of Boston, in the chair, and pro 
 ceeded to consider the resolves on the subject of 
 
 Elections by Plurality and Majority. 
 They were read, as follows : 
 
 1. Resolved, That it is expedient to provide in 
 the Constitution that a majority of all the votes 
 given shall be necessary to the election of a gov 
 ernor, lieutenant-governor, secretary, treasurer, 
 auditor, and attorney- general, of the Common 
 wealth, until otherwise provided by law ; but no 
 such law providing that the governor, lieutenant- 
 governor, secretary, treasurer, auditor, attorney- 
 general, and representatives to the general court, 
 or either of them, shall be elected by plurality, 
 instead of a majority of votes given in, shall take 
 effect until one year after its passage ; and, if at 
 any time after the enactment of any such law, 
 and the same shall have taken effect, such law 
 shall be repealed, such repeal shall not become a 
 law until one year after the passage of the repeal 
 ing act ; and in default of any such law, if at any 
 election of either of the above-named officers, 
 except the representatives to the general court, no 
 person shall have a majority of the votes given, 
 the House of Representatives shall, by a majority 
 of viva voce votes, elect two out of three persons 
 who had the highest, if so many shall have been 
 
60th day.] 
 
 ELECTIONS BY PLURALITY. 
 
 87 
 
 Monday,] 
 
 BUTLER WHEELER STEVENSON. 
 
 [July 18th. 
 
 voted for, and return the persons so elected to the 
 Senate, from which the Senate shall, by viva voce 
 vote, elect one who shall be governor. 
 
 4. Resolved, That in the election of all city 
 or town officers, such rule of election shall govern 
 as the legislature may by law prescribe. 
 
 Mr. BUTLER, of Lowell. I wish to make a 
 farther amendment to the first resolve, which 
 amendment, I take it, will pass without comment, 
 and then I will explain the views of the Com 
 mittee, in reporting the resolves they have. It 
 will be observed, that in copying the resolves, an 
 error has crept in. The resolve provides now, 
 that in case of the election of governor, lieuten 
 ant-governor, secretary, treasurer, auditor, and 
 attorney- general of the Commonwealth, there 
 shall be no election for want of a majority vote, 
 then the House of Representatives shall send up 
 to the Senate, two out of the three persons who 
 have the highest number of votes, if so many 
 shall have been voted for, and then the Senate, 
 shall, by viva voce vote, elect one who shall be 
 governor ; and there it stops. To make the resolve 
 perfect, I propose to add to the end of the resolve 
 the words, " or other officers to be thus elected." 
 
 Mr. WHEELER, of Lincoln. I should like to 
 inquire of somebody, who knows better than I 
 do, whether this Convention has not passed a 
 resolution, that in case of a failure of an election 
 of governor, he shall be chosen by the Senate and 
 House of Representatives assembled in one House. 
 If so, I cannot conceive of any necessity of this 
 provision. 
 
 Mr. BUTLER, of Lowell. I would suggest, 
 Mr. Chairman, that if the gentleman will allow 
 this amendment to pass, the whole matter will be 
 then open to discussion. My amendment is 
 simply designed to perfect the resolve, and make 
 it such as it was intended to be. It corrects ver 
 bal errors and grammatical inaccuracies which 
 have crept in. 
 
 The question was taken upon Mr. Butler s 
 amendment, and it was agreed to. 
 
 Mr. BUTLER. I propose another amend 
 ment, which is to change the word "which," 
 where it last occurs in the first resolve, into the 
 word " whom." The error is a grammatical one. 
 
 The amendment was adopted. 
 
 Mr. BUTLER. The Committee which re 
 ported these resolves, have stated briefly, in the 
 report accompanying the resolves, the reasons 
 which induced them to come to the conclusion to 
 which they arrived. They believed that all those 
 officers who are elected by general ticket, and who 
 represent the whole people of the Commonwealth, 
 either in the executive or other department of 
 the Commonwealth, should be elected by a ma 
 
 jority of the people if it were possible to get 
 such a vote. If it is not possible, that then a 
 course as near that as can be, should be adopted, 
 to wit: that the House should select, from a 
 very limited number, which in practice, must be 
 those who have very nearly an equal number of 
 votes, two out of three of those, and send their 
 names to the Senate. The Convention having 
 put the Senate upon the basis of population, the 
 Senate shall then, by a viva voce vote, select one 
 of those persons to be governor, &c. They will 
 then, in fact be elected by the representatives of 
 the whole people, under a full sense of their 
 responsibility. 
 
 [The copy for the remainder of Mr. Butler s 
 speech was handed to the author for revision, and 
 was not returned in season to be inserted in its 
 proper place.] 
 
 Mr. WHEELER, of Lincoln. Some minutes 
 ago, I called the attention of the Convention to 
 the fact that they had already passed a resolve 
 directing that the governor should be elected by 
 joint ballot of the Senate and House of Repre 
 sentatives. I find in your official report that on 
 May 9th, the following resolution was adopted : 
 
 Resolved, That it is expedient so to amend the 
 Constitution as to provide that in case of a failure 
 in the election of governor by the people, he shall 
 be elected by the Senate and House of Repre 
 sentatives, by joint ballot. 
 
 Now, I am not able to see the propriety or 
 expediency of adopting this resolve, providing 
 that the governor shall be elected in the manner 
 laid down in the first resolution reported by the 
 Committee, when the Convention have already 
 settled the question, so far as the governor is 
 concerned, by a previous resolution. 
 
 My only object was to call the attention of the 
 Convention to the fact. If gentlemen will take 
 pains to look at the official report, they will find 
 that this resolution passed on the 9th of May. 
 
 Mr. STEVENSON, of Boston. It is true, as 
 has been stated by the chairman of the select 
 Committee, (Mr. Butler,) that the question, 
 whether the plurality or the majority rule shall 
 determine the result in our elections, has already 
 occupied a great deal of the time of this Conven 
 tion, and has been somewhat elaborately dis 
 cussed ; and it may be presumption in me to 
 suppose that any suggestions which I could make, 
 would be the source of any additional light upon 
 it. Still, having been, by the indulgence of the 
 President, a member of the Committee to which 
 this matter was referred, after that discussion ; 
 having participated in the deliberations of that 
 Committee, and not being able to give my assent 
 
88 
 
 ELECTIONS BY PLURALITY. 
 
 [60th day. 
 
 Monday,] 
 
 STEVENSOX. 
 
 [July 18th. 
 
 to the conclusions to which they have come, I 
 feel it my duty to ask the indulgence of the 
 Committee, while I briefly state the reasons for 
 my dissent. 
 
 It certainly, Mr. Chairman, would be unneces 
 sary, in an assembly like this, convened for the 
 purposes for which we are convened, to ask gen 
 tlemen not to allow their opinions to be warped, 
 or their votes to be affected here, in any manner, 
 by the light of the last election returns, or by the 
 glimmer of what they may anticipate as the next. 
 Still, it is not to be denied by any one, that, from 
 the very fact that the subject which we are 
 treating of, viz. : that of the election of the officers 
 of the government, is one upon which party or 
 ganizations are but too apt to expend their efforts. 
 There is danger that we may find ourselves ask 
 ing ourselves although we might blush to ask 
 another the question what effect this or that rule 
 would have upon the party with which we are 
 associated? That is a danger against which 
 every fair and high-minded gentleman is bound to 
 arm himself. It is a danger, which, if not heeded, 
 will mislead us in the very pursuit which it 
 prompts ; for parties are evanescent, while the 
 rule, which we shall establish, is intended to be 
 permanent. 
 
 If we will appreciate that danger, and arm our 
 selves against it, avoid it, or crush it, the Conven 
 tion will not assent to the Report of this Commit 
 tee as it stands. I supposed the purpose was to 
 recommit this matter, after discussion, to see if 
 some middle ground could not be found in refer 
 ence to a matter, about which there was so much 
 difference of opinion ; although I cannot under 
 stand how it can be made to appear that, if the 
 plurality rule be in derogation of the principles 
 of democracy, when applied to one office, it can 
 be shown to be consistent with the principles of 
 democracy when applied to another office. Still, 
 the Committee have undertaken to meet that dif 
 ficulty, and have recommended a complex system 
 of different rules for different offices ; and the ques 
 tion with us is, is it wise to establish different 
 rules for different cases. The other question that 
 comes after that, if it should be answered in the 
 affirmative, is, have the Committee made a proper 
 application of these different rules to the different 
 cases in this Report. It is proposed here, that a 
 majority shall be insisted upon in the cases of all 
 officers who are to be voted for by the whole 
 people ; in the case of county officers, and officers 
 voted for in districts, that they shall be elected by 
 plurality, and in the case of representatives, and 
 town or city officers, that a majority shall be 
 required on the first ballot, and that a plurality 
 shall be sufficient on the second ballot. The first 
 
 question that is to be answered by our vote in re 
 gard to this Report, is, is it wise to make a complex 
 system ? is there any reason why the rule should 
 not be the same in the one case, as in the other ? 
 And if we come to the conclusion that there are 
 reasons for making this difference, still, the chair 
 man of the Committee is bound to answer the 
 other question, whether he has made a proper 
 application of the rule in this Report. I should 
 give a negative answer to both of these proposi 
 tions. In regard to the question, whether it is 
 wise to establish a complex system here in Mas 
 sachusetts, I would beg gentlemen to remember 
 that the whole argument which was advanced 
 here in Committee when the subject was before 
 us upon a previous occasion, against the establish 
 ment of the plurality system, was, that it was in 
 derogation of the principles of democracy, and in 
 violation of the principle that the majority should 
 rule. Changes were rung upon that proposition, 
 until it appeared as if it would drown every sug 
 gestion of convenience and expediency. The 
 convenience of the people must not be consulted 
 by this body, for the reason that that principle 
 must not be invaded. I would ask the chairman 
 of the Committee ; I would ask all the other 
 members of the majority of the Committee, and 
 all those who are influenced by the arguments 
 which they present, whether, when they are con 
 stituting a legislature to consist of three branches, 
 each having a negative upon the other two, it is 
 not just as wrong to violate the asserted principle 
 in regard to one of them, as it would be in regard 
 to another of them, or to all of them ? If it be a 
 principle, what has become of it ? Where has it 
 gone ? It is not here in this Report. How is it, 
 that the principles of democracy are violated, 
 when one of these three branches is filled by the 
 votes of a plurality of the electors, and not vio 
 lated when the other two branches of the same 
 department of the government are filled by pre 
 cisely the same means ? How is it, that the as 
 serted principle is not violated when the senators 
 and representatives, who must enact or repeal, as 
 the case may be, each law, before the governor 
 will have the power to assent to or to veto it, are 
 elected by a plurality, but is violated, when the 
 branch possessing only a partial negative upon 
 the other two, is elected in the same way ? 
 
 I appeal to gentlemen, to know, upon the 
 argument which has been presented here, over 
 and over again, and the only argument which, 
 has been urged against the establishment of 
 the plurality system here in Massachusetts, 
 whether this Report is not based, either upon an 
 utter repudiation of that argument, or else upon 
 a willingness to sacrifice the asserted principle to 
 
60th day.] 
 
 ELECTIONS BY PLURALITY. 
 
 89 
 
 Monday,] 
 
 STEVENSON BUTLER. 
 
 [July 18th. 
 
 what is deemed to be the present condition of 
 parties. Anti- democratic to elect a governor by 
 a plurality of the votes of the people ? Why not, 
 then, anti- democratic to elect senators and rep 
 resentatives in the same way ! Anti- republican 
 to elect a secretary or treasurer of your Common 
 wealth by a plurality of votes cast ? Why not, 
 then, anti-republican to elect your selectmen, 
 overseers of the poor, mayor and aldermen, in the 
 same way ! I cannot understand this. 
 
 Mr. BUTLER, of Lowell. I desire to call the 
 gentleman s attention to the fact, that we elect 
 both the secretary, treasurer, and chairman of the 
 board of selectmen, by a majority. 
 
 Mr. STEVENSON. That is just exactly what 
 I said. I say that the gentleman puts forward 
 the proposition that it is contrary to the princi 
 ples of republicanism and democracy, that the 
 treasurer and secretary of the Commonwealth 
 should be elected by a plurality of the people, 
 and therefore insists upon requiring a majority ; 
 and yet, in the same paper, emanating from the 
 same source, he proposes that your senators and 
 representatives, your town officers, your city offi 
 cers, your selectmen, mayor and aldermen, shall 
 be elected by a vote of the plurality. I desire to 
 know whether the time has arrived when it is 
 unnecessary that senators, representatives, and 
 town officers shall have their elections determined 
 upon the principles of democracy or of republi 
 canism, so long, only, as the governor of the Com 
 monwealth has his election either determined 
 upon those principles, or by an appeal to another 
 tribunal, and that tribunal another branch of the 
 government. I believe there are real and serious 
 objections, which will present themselves to gen 
 tlemen here, against adopting this complex sys 
 tem, other than the fact, that it is in violation of 
 the principle which has been asserted here, in regard 
 to all the other officers, excepting state officers. 
 We have not a case here, where we can make a 
 partial experiment by applying the rule to some 
 officers, with the intention of making it general, 
 if we find it works well and gives satisfaction to 
 the people. If we were a legislature, with an 
 nual sessions, that would be a course which we 
 might adopt, and perhaps it would be a wise one. 
 I hope that we shall not adopt a complex system 
 here, but, that we shall establish the same rule 
 for all the officers whose election we deem to be 
 important. If it is to be determined otherwise, 
 and we are bent upon an arrangement by which 
 some officers are to have their elections deter 
 mined by one rule, and other officers by another, 
 I ask the chairman of the Committee to answer 
 the question, whether he has made a proper ap 
 plication of these different rules ? Granting, then, 
 
 that you may make a difference in different cases, 
 is it wise, still to insist upon a majority in rela 
 tion to those officers who are to be voted for by 
 the whole people, and to consent to the plurality, 
 in cases where the constituency is smaller ? What 
 are the considerations which ought to determine 
 the offices concerning which you should insist 
 upon one or the other rule? Shall it depend 
 upon the number of persons who constitute the 
 constituency ? Shall it depend upon the impor 
 tance of the office to be filled ? Shall it depend 
 upon the degree of inconvenience and expense 
 attending repeated trials ? Shall it depend upon 
 the opportunities which the electors may be sup 
 posed to have, of knowing each others views, 
 and so of reconciling differences of opinion as to 
 candidates ? Or are they to be determined upon 
 by lot, and the result to be called a compromise ? 
 I submit, if any one of these considerations ought 
 to weigh, that they have been utterly disregarded 
 by the Committee to whom this matter was re 
 ferred, and from whom this Report comes. If 
 these considerations ought to have any influence, 
 and if you are determined to insist on a majority 
 in some cases, and to be satisfied with a plurality 
 in other cases, I submit, that it is the duty of this 
 Committee to shift this Report, end for end, and 
 to make your governor, and the other officers, for 
 whom the whole people are to vote, eligible by 
 a plurality, and to insist still, upon a majority in 
 your local elections and smaller constituencies. 
 If we are going to make a difference, let us be 
 able to give a reason for it which cannot be 
 traced by any lines to party considerations. If 
 we desire to make a difference, let us be able to 
 give such reasons as the Convention ought to 
 give when it makes propositions concerning the 
 Constitution. Of all the officers who should be 
 elected by a plurality, those who are to be voted 
 for by the whole people, on a general ticket, are 
 the ones. There is a palpable distinction, which 
 might have been drawn in that direction ; and 
 he who should have drawn it, might have been 
 moved by some regard for the will of the people. 
 That distinction might have been justified, on the 
 ground that it admitted the plurality in those 
 cases in which repeated trials could not be had ; 
 and insisted upon a majority in those cases in 
 which repeated trials could be had ; thus leaving 
 the result, in both cases, in the power of the peo 
 ple. This is a desirable object ; and, therefore, I 
 say, change this Report, end for end. It is ex 
 actly wrong, now. The right and left boots are 
 put each upon the wrong foot. Do not gentle 
 men see, that while they are crying out that they 
 desire to give the election of officers to the peo 
 ple, they are consenting to a scheme here which 
 
90 
 
 ELECTIONS BY PLURALITY. 
 
 [60th day. 
 
 Monday,] 
 
 STEVENSON. 
 
 [July 18th. 
 
 will take these elections out of their hands, and 
 give them to the legislature ? In every con 
 ceivable case where it will, in practice, make any 
 difference whether the Constitution shall pro 
 vide a majority rule or a plurality rule, do not 
 gentlemen see, that the majority rule is nothing 
 but a requirement of that which cannot be in 
 sisted on ? 
 
 Take your governor, for instance. The large 
 ness of the constituency the greater incon 
 venience and expense of repeated trials to the 
 people the necessity that the office should be 
 filled the lesser opportunities, which the elec 
 tors have, of comparing opinions, and recon 
 ciling differences of opinion as to candidates, 
 all point to the same conclusion; and yet the 
 proposition of the Committee is to leave these offi 
 cers to be elected by a majority only, after they 
 have abandoned the whole principle upon which 
 they oppose plurality. These evils are so obvious 
 in regard to general elections by the people, as 
 the matter now stands, that in cases of general 
 elections, where the whole people are to vote, no 
 body proposes repeated trials ; and so, holding on 
 to a majority rule, we are driven to a greater evil 
 than them all, and that is, to an appeal from the 
 people to a single branch of the government ; and 
 that is called democracy ! I do not desire to ap 
 peal from the people to a branch of the govern 
 ment, and he is a queer democrat who does. I 
 do not desire to run the risk of seeing, at a future 
 day, high offices of the government offset, one 
 against another, and traded for. I do not desire 
 to see the judgment of the governor of this Com 
 monwealth hampered, when any bill is presented 
 to him, by the fact, that it has received the assent 
 and favor of those to whom he is indebted for his 
 place. I do not desire to see the appointing 
 power obtained, perhaps, by previous promises as 
 to the exercise of it in individual cases. I do de 
 sire to see the highest officer of your government 
 holding his commission from the people, in the 
 best form in which it can be given, and not from 
 any other branch of the government. The more 
 independent you shall make such officers of your 
 government, the better will the government be 
 administered. I do not understand how it is, 
 that gentlemen who think it would be anti- 
 republican and anti- democratic to permit the gov 
 ernor to be elected by a plurality of the votes cast, 
 are quite willing to transfer all power from the 
 people to a body, a majority of which shall have 
 been elected by a minority of the people, and to 
 confer upon them the power to elect as governor 
 that individual, who, perhaps, received less than 
 a plurality of the votes at the last election. I 
 think it was the gentleman from North Brook- 
 
 field, (Mr. Walker,) whom I do not now see in 
 his seat, who said, that the only question involved 
 was, " Where shall the sovereignty reside ? " Be 
 it so. Those who ask you to establish a system 
 of elections by plurality, propose that it shall 
 reside in the people, and in the people alone; 
 while those who insist upon a majority, and make 
 no provision for repeated trials, propose that it 
 shall reside in the people conditionally, up to a 
 certain point, and then that it shall be transferred 
 from the people to the legislature. That, I un 
 derstand, to be the difference between the two in 
 regard to the question, where the sovereignty is 
 to reside. I may be excused for referring to the 
 remarks of the gentleman from North Brookfield, 
 in his absence, because his is the only argument, 
 which I was fortunate enough to hear on that 
 side of the question. That gentleman told us 
 that the establishment of the plurality system 
 here, in the election of officers under a general 
 ticket, would " debar the people from the right of 
 deciding by a maj ority . That single proposition, 
 stated and considered, will expose the fallacy 
 which runs through, and is the only life-blood of 
 the whole of this argument. Debar the people 
 from the right of deciding by a majority. Try it, 
 and establish your plurality system; and does 
 not the right remain then, just as much as it ex 
 ists now ? Let the majority vote for any candi 
 date whom they desire to elect, and will he not 
 be elected, although you may have ten thousand 
 plurality systems ? How can the gentleman argue 
 that you debar the people from a right, when you 
 leave in their hands, intact, the power to exercise 
 that right, in every conceivable case. Gentlemen 
 have all along spoken as if the proposition were 
 to give to the minority power over an existing 
 majority. Gentlemen have argued this ques 
 tion just as if the proposition were that the 
 lesser number of votes should prevail over 
 the greater number of votes. And there is 
 the whole difficulty in this matter. Now, using 
 the words plurality, majority, and minority, in 
 the sense in which they are generally received, a 
 minority and a majority can exist in the same 
 body at the same time ; and the majority ought 
 to govern, and the majority will govern. But a 
 majority and a plurality cannot be at the same 
 time. If a majority exist, it is an enhanced plu 
 rality ; and therefore, whenever, under the pro 
 posed change, a plurality shall prevail, it will be 
 because no majority exists. 
 
 And therefore, whenever you shall establish 
 this rule, and it shall prevail at an election, there 
 will be no invasion of the principle that the ma 
 jority should rule. Shall not a majority rule ? 
 Yes, Sir. But the difficulty is, that gentlemen, 
 
60th day.] 
 
 ELECTIONS BY PLURALITY. 
 
 91 
 
 Monday,] 
 
 STEVENSON. 
 
 [July 18th. 
 
 when they are discussing this, and when they 
 say that we propose to give to a plurality the 
 power over a majority, are comparing things, 
 both of which cannot exist, at the same time, in 
 the same body. One is an enhancement of the 
 other, and they cannot both be there at the same 
 time, to be put in opposition, one to the other. 
 Shall not the majority rule ? Yes, certainly, 
 when a majority exists. But the great American 
 principle I take to be this, when properly stat 
 ed : the majority shall have the power to rule. 
 And, Sir, the establishment of the plurality sys 
 tem does no violence to that principle ; for it 
 leaves the power to rule still with the majority, 
 as certainly as it is there now. 
 
 The gentlemen who insist upon a majority at 
 an election, ought to remember that they have 
 no power of compelling the existence of a ma 
 jority. They seem to forget that political rights 
 are individual concerns ; that political powers are 
 individual rights, the whole value of which de 
 pends upon their effect upon the individual him 
 self ; the security of his person, the promotion of 
 his happiness^ the protection of his property these 
 are the purposes of government itself. The great 
 difficulty comes from the inconsistency between 
 individual freedom in the exercise of the elective 
 franchise, and the existence of power anywhere to 
 compel a majority ; the existence of power any 
 where to compel more than half of those who vote 
 for candidates, to vote for one candidate. Now, 
 Sir, a duty is to be performed, an office is to be 
 filled, an officer is to be elected ; you hold on to 
 the majority rule with no provision for repeated 
 trials, on the part of the people ; and as long as 
 you leave uninvaded the individual s right of 
 exercising the elective franchise, you have no 
 power to compel the existence of a majority, and 
 therefore you have got to do one of two things : 
 You must either consent that the duty shall remain 
 unperformed, and the office shall not be filled, or 
 you must provide some other mode of electing an 
 officer in this Commonwealth than by the votes of 
 the people. Some other mode, if you insist upon 
 a majority to elect an officer, than by the votes of 
 the people, you must provide. And the question, 
 and the whole question is, in that contingency, 
 a majority failing to exist which mode is the 
 preferable one, an appeal from the people to the 
 legislature, or to leave the power still in the hands 
 of the people, to be exerted by means of the plu 
 rality of the votes which shall be cast at one 
 time ? and that is the whole of it. The question 
 here is not whether you prefer that your gov 
 ernor should be chosen by a plurality or by 
 a majority ; but whether, a majority not ex 
 isting, you prefer that he should be elected by 
 
 a plurality of the people, or by the legislature ? 
 I prefer the former, because it will make it abso 
 lutely certain that the election of governor and 
 all general officers of the State, shall be as nearly 
 in accordance with the public will, as the condi 
 tion of things will permit, consistently with the 
 right in each individual to cast his vote as he 
 himself may see fit, independently of the govern 
 ment, or of any party. Whereas, if you adopt 
 the Report of the Committee as it stands, cases 
 will arise, as cases already have arisen, where, 
 through the instrumentality of mere party ar 
 rangements, he who received the lesser number of 
 votes from the people, is put into the executive 
 chair to the exclusion of him who received the 
 greater number of the votes of the people. 
 
 The basis of representation which has been 
 almost agreed upon by this Convention, fur 
 nishes a new reason why it is our duty to give to 
 the people of Massachusetts an opportunity of 
 saying whether or not they will insist upon hold 
 ing in their own hands, without giving it up to 
 a legislature, the election of him who shall fill 
 the executive chair. The main, and the real 
 objection to that basis, which we have agreed 
 upon, is the inequality of influence over the legis 
 lation of the State, which is to reside in different 
 citizens in different parts of this Commonwealth. 
 That inequality is acknowledged. But we are 
 told that we must submit to it, because town 
 lines must not be disregarded in Massachusetts. 
 Such a reason as that cannot be given why the 
 same inequality of the power, held by different 
 men in different parts of Massachusetts, should 
 exist in relation to him who shall fill the execu 
 tive chair. But, if you adopt this Report of the 
 Committee, you carry that same injustice into 
 the council-chamber, without the same palliation, 
 in all cases, where your constitutional provision 
 will operate at all. You give to an assembly, 
 established upon an unequal basis, the power of 
 choosing the governor, whose concurrence with 
 them (and it ought to be an independent concur 
 rence) is essential to their own exercise of power. 
 
 You make the same unequal division of politi 
 cal power, in regard to the executive, without a 
 reason for it, which you make in regard to the 
 House of Representatives, with a reason for it, 
 which reason alone affords any justification of it. 
 But, it is said that in regard to governor, we must 
 preserve the principle that the majority shall rule. 
 Look at it, and see what kind of a preservation 
 of that principle is proposed here by the Com 
 mittee. You are to appeal from the people to a 
 tribunal, the majority of the members of which, 
 are the representatives of an acknowledged mi 
 nority of the people. Farther than this, your 
 
92 
 
 ELECTIONS BY PLURALITY. 
 
 [60th day. 
 
 Monday,] 
 
 STEVENSON. 
 
 [July 18th. 
 
 provision compels that tribunal to make its selec 
 tion from persons who have just failed to secure 
 to themselves a majority of the votes of the 
 people ; and this is called preserving the majority 
 principle ! 
 
 The first resolve embodies the Committee s 
 mode of electing governor, and other officers in 
 accordance with this majority principle, as it 
 is called. See how. The people vote once. 
 There are three candidates one has half of the 
 votes, one a third of the votes, and one a sixth of 
 the votes. One of the three must be governor ; 
 but, inasmuch as the majority principle must be 
 preserved, he, whom half of the people desire, 
 must be no nearer to the chair than he whom one- 
 sixth of the people desire ; there the people s 
 power ends. In its exercise, one- sixth of the 
 votes have had exactly the same force and effect 
 as one-half of the votes. Then the selection of 
 two out of the three is given to the representa 
 tives of one-third of the people, themselves 
 elected by a plurality of their own constituents ; 
 and then, as a finishing touch in the process of 
 preserving the principle that the majority of the 
 people should elect the governor of the Common 
 wealth, the Senate, a body, of which no one 
 member may have been chosen by a majority, is 
 to determine the election. And so, with no 
 single agency to which a majority has given its 
 assent, the governor is to be elected in accordance 
 with the rule, that the majority alone shall have the 
 power to decide who he shall be ! Lucus a non lu- 
 cendo ! It is nothing more nor less than this : It is 
 putting it into the power of the House of Repre 
 sentatives to substitute, not a plurality rule for a 
 majority rule, but a minority rule for a plurality 
 rule, and that is the whole of it. The whole pow 
 er conferred upon the House of Representatives, 
 their choice being limited to three persons, is this, 
 and nothing more than this : to determine that he 
 who shall have received the highest number of 
 the votes of the people, shall not be governor, 
 but that he who shall have a lesser number of 
 those votes shall be governor. 
 
 I know it is said, that those who favor the plu 
 rality rule in elections, and opposed the basis 
 which has been agreed upon, on the ground that 
 it put power into the hands of a minority of the 
 people, expose themselves to a charge of incon 
 sistency. But it is not so. There are clear dis 
 tinctions between the two ; as palpable as those 
 between midnight and noonday. In the two 
 things to be acted on, viz. : the election of officers, 
 or the constitution of the body which shall enact 
 the laws, the citizen occupies very different po 
 sitions ; answers, by his vote, very different ques 
 tions ; exercises, by that vote, very different pow 
 
 ers. In the first, the election of officers, he votes 
 for whom he chooses the Constitution knows no 
 candidates the question which is propounded to 
 him, and which he answers by his vote, is not, 
 " shall or shall not A B fill the office ? " but the 
 question is, "who shall fill the office?" The 
 power, which he exercises, is not necessarily ex 
 erted, either in aid of, or in direct opposition to, 
 the power exercised at the same time by each 
 other voter ; but it may operate as a mere dis 
 turbing force, absolutely impeding, and perhaps 
 disarming the power of all others. So that a 
 factious spirit, indulged in by a few, tends to 
 preventing the many from being represented in 
 the government under which they live. I, for 
 one, desire to take out of the hands of the few, 
 this power over the many. But, in the enact 
 ment of laws, the questions propounded, and 
 which are to be answered by votes, admit of no 
 response, excepting an absolutely affirmative, or 
 an absolutely negative, one. Shall this law be 
 enacted yes or no ? Shall this law be repealed 
 yes or no ? So that the power which each ex 
 ercises by his vote, must, (unlike votes at an 
 election,) necessarily be exerted, either in the 
 same direction with, or in direct opposition to, 
 the power exerted at the same time by each other 
 vote, and cannot be made to operate as a mere 
 disturbing force. 
 
 I am willing that, at each election, a plurality 
 should elect the officer ; I am unwilling to con 
 fer upon a minority of the people, the power of 
 making the laws, in opposition to the will of a 
 majority of the people ; and some gentlemen 
 think that to be an inconsistency. To reach that 
 conclusion, they must leap a chasm broader than 
 logic can build a bridge for. When you provide 
 that a plurality may elect, do you thereby provide 
 that a majority shall not elect ? Will not a ma 
 jority elect, wherever a majority shall see fit to 
 elect? Do you confer upon the minority the 
 power to govern the majority ? Do you take 
 power from the majority of your people, and con 
 fer it upon a minority of your people ? Far from 
 it and otherwise. You leave the power with the 
 majority, as certainly as it is there now, and you 
 take from the minority the power of preventing 
 elections. 
 
 Now, Sir, how is it with the basis for the 
 House of Representatives? Ask yourself the 
 same questions concerning the two, and see if 
 you will not be constrained to give exactly oppo 
 site answers. Do you provide that the majority 
 shall not have the power to govern? By the 
 basis, yes. By the plurality, no. 
 
 Do you confer upon different citizens, different 
 degrees of political power ? By the basis, yes. 
 
60th day.] 
 
 ELECTIONS BY PLURALITY. 
 
 93 
 
 Monday, 
 
 STEVENSON DAVIS. 
 
 [July 18th. 
 
 By the plurality, no. Do you give to each man s 
 vote an equal weight, in the ballot-box ? By the 
 plurality, yes. By the basis, no. 
 
 I cannot think that he who votes for one prop 
 osition, and against another proposition to which 
 such adverse answers can be truly given to the 
 same questions, need feel much embarrassed by 
 any whispers of inconsistency. In the one you 
 take power from the majority, and confer it upon 
 the minority ; therefore I oppose it. In the other 
 you do no such thing, and so I assent to it. 
 
 What is the exact measure of power which 
 each citizen ought to possess, either in an election, 
 or in deciding what the laws shall be, under which 
 he is to live ? Exactly that which each other cit 
 izen possesses. No more and no less. He who 
 asks for more, is no democrat, though he may 
 have worn the word threadbare by the use of it 
 with his tongue. He who will consent to less, 
 is not fit for a republican, however much he may 
 congratulate himself that he lives under no other 
 form of government. Each citizen s proper meas 
 ure of power is exactly that which each other 
 citizen possesses. What is the instrumentality 
 through which that power is to be exercised? 
 The vote. The individual s power by the indi 
 vidual s vote. And, in determining the mode in 
 which that power shall be exerted, if we deter 
 mine that each vote cast shall carry with it the 
 same force, which each other vote carries with it, 
 we shall determine justly. If otherwise, we 
 shall determine unjustly. Let us listen to the 
 clear voice of justice ; that most god-like capa 
 bility of man ; that central light of the moral 
 universe ; that sun, which all the other virtues 
 revolve around, and are illumined by whose 
 central force is necessary to keep each other vir 
 tue from wandering into the orbit of its kindred 
 vice. 
 
 No system can be just which will not square 
 with this rule, equal power in each vote. Now, 
 when you change to a plurality, do you invade 
 this rule ? Does it not leave each individual s 
 power exactly equal to each other individual s 
 power ? Each vote, the silent expression of the 
 will of him who casts it, tends with exactly equal 
 force to the accomplishment of his wishes ; car 
 ries with it exactly the same weight, not varying 
 by the pressure of a single particle of impalpable 
 dust ; while in the other case, the basis of repre 
 sentation is an absolute negation of the same rule. 
 It fails to recognize the existence of individual 
 power, looking only to the power of associations ; 
 constructing foundations so varying, that the few, 
 standing on one, may defy the many, standing 
 on another ; putting into different mens hands 
 different instrumentalities ; calling each a vote, 
 
 but endowing different votes with different de 
 grees of power. That is injustice. Because 
 whatever of excess it confers upon one citizen, it 
 takes from another, and men in Massachusetts 
 cease to be equal. 
 
 [The time allowed by the rule adopted by the 
 Convention, having expired, Mr. Stevenson did 
 not finish his argument. 1 
 
 Mr. DAVIS, of Plymouth. I rise to make an 
 inquiry whether the resolves, as reported by the 
 Committee, are all under consideration, or whether 
 only the first is now before the Committee ? 
 
 The CHAIRMAN. The Chair understands 
 that they are all under consideration, so far as to 
 allow of general debate upon them. 
 
 Mr. DAVIS. If it is in order, I will move to 
 amend the third resolution by striking out all 
 after the word " election," in the third line. 
 
 The CHAIRMAN. The resolve Avill then read 
 as follows : 
 
 Resolved, That in the election of representatives 
 to the general court, a majority of all the votes 
 given in, shall be necessary to an election. 
 
 Mr. DAVIS. I do not propose to argue, at any 
 length, the amendment I have proposed, or to give 
 the reasons why I advocate it ; but it seems to 
 me, that in one remark, at least, of the gentle 
 man from Boston, (Mr. Stevenson,) I can agree 
 with him, and that is with regard to the town 
 elections. I differ from him in believing that we 
 should, as far as possible, retain the doctrine, and, 
 as I maintain it, the principle of the majority sys 
 tem. If I have understood correctly the position 
 of many gentlemen on this floor, who are in favor 
 of town representation, I understood them to base 
 their arguments in favor of town representation, 
 to a very great extent, and almost solely, upon the 
 ground that it was necessary in order to preserve 
 these small democracies and municipalities intact. 
 It was said that they were the only pure democ 
 racies in the world. I have only to say, that I, 
 for one, am in favor of keeping these democracies 
 pure in the small towns ; and I therefore propose 
 this amendment. It seems to me, that if we are 
 to retain the majority system anywhere, we 
 should do it in these small towns, these " pure 
 democracies," as they are termed, and then we 
 shall, to that extent, preserve, and teach, the 
 principles upon which a popular government is 
 founded. 
 
 There is another reason why we should not 
 make the election of a representative to the gen 
 eral court final, upon a second trial, and why we 
 should preserve the majority system, so far as 
 that election is concerned ; and that is, that in the 
 smaller towns the people are better able, from 
 
94 
 
 ELECTIONS BY PLURALITY. 
 
 [60th day. 
 
 Monday,] 
 
 DAVIS EDWARDS. 
 
 [July 18th. 
 
 their knowledge of their neighbors, and of the 
 candidate who is selected, to agree upon some one, 
 after one or two trials have been had. There does 
 not, in this case, seem to be the necessity for the 
 plurality rule, which may exist in other cases ; 
 and the Committee, in giving the reasons for their 
 Report, expressly declare, that there is not the 
 same necessity for preserving the plurality system, 
 in the election of a representative, that there is in 
 the election of officers from a more extended ter 
 ritory. Since this Report was made by the 
 Committee, the Convention have decided upon a 
 system of town representation ; and, therefore, 
 there is not that same necessity for adopting the 
 plurality system, with regard to the election of 
 representatives, that their might have been if the 
 district system had been adopted. If the mem 
 bers of the Committee will turn to the second 
 page of the Report of the Committee who offered 
 this series of resolutions, they will find, that 
 when the Committee speak of the election of rep 
 resentatives in towns, by plurality, they are 
 obliged to resort to an entirely different reason 
 from that which they give in the case of the 
 election of other officers. They say : 
 
 " To prevent a too frequent recurrence of elec 
 tions, and the necessity of trials on subsequent 
 days, when bodies as large as counties and dis 
 tricts fail to elect, for all county and district 
 officers, a plurality rule is provided. From a 
 desire that the government may be in fact, what 
 it is in theory, a government of a majority, and to 
 give an opportunity for the exercise of the sober 
 second thought, by the electors, that rule is pro 
 posed upon the first ballot, in the election of rep- 
 resentatives to the general court." 
 
 And here they bring in a new reason : 
 
 "Still, that differences of political or other 
 opinions may not operate, either to hinder a full 
 representation, or to protract town meetings to 
 such extent as to subject them to extraneous 
 influences, a plurality is permitted to elect on the 
 second ballot." 
 
 Gentlemen will find, that when an election of 
 an officer who is to represent a large extent of 
 territory is proposed, the reason for resorting to a 
 plurality is, that it is not easy to meet for a second 
 election ; and then, when they come to the elec 
 tion of those who are to represent a smaller terri 
 tory, they give another reason ; and I suggest, 
 that I think that the other reason is not entitled 
 to very much weight, for a majority may always 
 elect, upon a second trial, if they deiire to prevent 
 a failure of representation. 
 
 Mr. EDWARDS, of Southampton. Having 
 been placed on the first Committee to which this 
 subject was originally referred, I have given it 
 
 some attention. I do not mean to speak long on 
 the subject, for I would not make a long speech 
 if I could. But as I felt this to be a somewhat 
 important subject, when the proposition for call 
 ing a Convention was first agitated, and having 
 turned my attention to it, I wish to say, that for 
 many years I have been in favor of the plurality 
 system in all our elections. I was in favor of it 
 in the Committee of which the gentleman from 
 Fall River, (Mr. Hooper,) is chairman, and eleven 
 out of thirteen members of that Committee ap 
 peared to be decidedly in favor of the plurality 
 system. I have seen in the elections in our towns 
 and counties, great evils resulting from the ma 
 jority principle. It has caused our town meet 
 ings to be subjects of ridicule, so frequently have 
 they been called. 
 
 It seems that a large proportion of this Conven 
 tion are not ready to adopt the plurality system 
 in its fullest extent ; and therefore, in this age of 
 compromises, a compromise has been presented, 
 and, in the language of the gentleman from Bos 
 ton, upon another subject, I am ready and wil 
 ling to take the best project presented, if it is not 
 fully up to my views. Why did we, in past 
 years, adopt the plurality system in the second 
 trial for an election of members of congress ? 
 Because the people did not appear to be ready to 
 adopt it upon the first trial. We have, hereto 
 fore, in many districts, been called upon from 
 three to nineteen times to elect members of con 
 gress. The people of Massachusetts are slow to 
 adopt any innovation ; and that may be a credit 
 to them ; we do not like to give up our town 
 representation ; we do not like to come at once 
 to the adoption of the .plurality system in elec 
 tions. We are attached to these principles, which 
 have been long established and acted upon. I 
 am entirely opposed to the amendment which is 
 proposed. I wish to elect our representatives on 
 the first day that we meet. It is, in many towns, 
 extremely difficult to elect at all, and an unequal 
 representation has consequently been the order of 
 the day in Massachusetts. 
 
 I should regret, extremely, to be unable to 
 elect a representative on the second ballot, as is 
 proposed by the Committee ; if the majority prin 
 ciple is to be the guide in the first ballot, the plu 
 rality system should be in the second. For my 
 own part, I am ready to take it upon the first 
 ballot ; but as it seems that we must compromise 
 the matter, I am willing to vote for the propo 
 sition of the Committee. Those who are conver 
 sant with the management of town affairs, and 
 the election of town officers, &c., know that three 
 or four days is often required for the election of a 
 board of selectmen ; this has been the case in 
 
60th day.] 
 
 ELECTIONS BY PLURALITY. 
 
 95 
 
 Monday,] 
 
 EDWARDS FROTHINGHAM SCHOULER. 
 
 [July 18th. 
 
 many of the small towns, and they have been 
 wishing, for a long time, that the plurality prin 
 ciple could be introduced into these elections. I 
 do not regard this matter as affecting party. 
 When I came here, it was not with the idea of 
 doing anything for the benefit of any particular 
 party, and to acquire any party advantage what 
 ever ; and, to my surprise, I found myself sur 
 rounded by friends of the plurality principle, 
 whom I did not expect to find on that side. For 
 years past, in the legislature, I have sustained the 
 plurality principle by my vote ; and I now found 
 myself surrounded by new friends. I do not 
 stop to inquire what is to be the effect of this on 
 party ; I do not look to the present good of Mas 
 sachusetts merely. I have arrived at that age 
 when I desire the permanent good of the Com 
 monwealth, and not the present success of any 
 party. I desire that those who are to follow me, 
 should have as good a Constitution as we can pos 
 sibly provide for them. I do not expect or de 
 sire anything for myself, but I want to present to 
 the people as perfect a system as we can, upon 
 this, as well as all other subjects that come before 
 us. For these reasons, I shall vote against the 
 amendment to the third resolution, and hope that 
 it will not be adopted. 
 
 Mr. FROTHINGHAM, of Charlestown. I 
 hope that the amendment of the gentleman oppo 
 site will not prevail, for I desire that we should, 
 at least, retain the plurality principle for our rep 
 resentatives. For one, Sir, I shall go for it, and 
 for as much of it as I can get ; and for the reason 
 that has been urged so often, and so elaborately, 
 and so well, upon this floor. I concur almost en 
 tirely in what has been said by the gentleman 
 who last spoke ; and I will say, that the particular 
 reason why I wish the amendment not to prevail 
 is, that the evil of the majority principle, or the 
 inconvenience of it for I will not say that it is a 
 bad principle in theory has been most sensibly 
 felt in the city which I have, in part, the honor 
 to represent here. For the last ten years, we have 
 hardly been able to get our representation upon 
 the floor of the legislature. I think there has 
 been but once, in the whole round of ten years, 
 when we have had a full delegation. That is the 
 way in which the majority principle has worked 
 in Charlestown ; and this being the case, I appeal 
 to the gentleman who offered the last amendment, 
 whether it is not reasonable to expect that the 
 people of that city, are strongly in favor of the 
 plurality principle, in order to secure what all 
 parties want, and what they all ought to strive 
 for a representation of that city upon the floor 
 of the legislature. Sir, it is this evil of non- 
 representation which lies at the bottom of the 
 
 whole matter ; it goes deeper than all party con 
 siderations. When you take a representative 
 away from the legislature, you deprive the people 
 whom he represents of their legitimate voice ; and 
 a system which works so as to deprive a city or a 
 town, for so large a portion of their time, of their 
 full voice in the legislature, is not the best system 
 that we can obtain. I believe that when you go 
 over the history of our legislature for the last ten, 
 fifteen, or twenty years, you will find that 
 this evil of non-representation has prevailed, 
 to a greater or less extent, over the whole of 
 the Commonwealth. Therefore, in advocating 
 the plurality principle for the city of Charles- 
 town, I advocate it for every town, and for every 
 city in the Commonwealth. While I am up, and 
 not wishing to go into a speech upon this matter, 
 I will venture to make a suggestion which occurs 
 to me in relation to the wording of the resolu 
 tion, and ask the chairman of the Committee 
 whether it would not be well to alter the phrase 
 ology, so that the towns, if they chose it, could 
 elect their representatives on the first ballot, by the 
 plurality principle, instead of waiting until the 
 second. Of course, as relates to the cities, it will 
 make no difference ; but this suggestion is made 
 in accordance with the idea of a friend near me, 
 that it may be more convenient for the towns, and 
 more desirable, to have the resolution worded in 
 that way. I do not, myself, propose any amend 
 ment to carry out that object ; but I will con 
 clude by expressing my hope that the amendment 
 which was offered by the gentleman from Ply 
 mouth, will not prevail. 
 
 Mr. SCHOULER moved to amend the first 
 resolution by striking out all after the word " re 
 solved," and inserting, in lieu thereof, the follow 
 ing: 
 
 That it is expedient to provide, in the Con 
 stitution, that in the election of a governor, 
 lieutenant-governor, secretary, treasurer, auditor, 
 and attorney-general of the Commonwealth, the 
 person having the largest number of votes shall 
 be deemed and taken to be elected. 
 
 The CHAIRMAN. The Chair can receive and 
 announce the amendment ; but there is an amend 
 ment to the third resolution now pending before 
 the Committee. 
 
 Mr. SCHOULER. As this is an amendment 
 to the first resolution, I suppose it will be first in 
 order. I do not intend to occupy any time in 
 discussing this amendment, but taking the Report 
 of the Committee now under consideration, and 
 the Report of the Committee in relation to the 
 calling of this Convention, it seems to me that 
 there is a tremendous clashing between them. I 
 
96 
 
 ELECTIONS BY PLURALITY. 
 
 [60th day. 
 
 Monday,] 
 
 SCHOULER HALLETT. 
 
 [July 18th. 
 
 will read the seventh reason assigned for the 
 calling of this Convention, which will be better 
 than anything that I could say upon the subject. 
 That is as follows : 
 
 " 7. The present cumbersome, formal mode of 
 organizing the government, we submit, should be 
 abolished. Eight or ten days are now usually 
 occupied in this organization, which is nothing 
 less than an annual waste of six or eight thou 
 sand dollars of the people s money. The election 
 of secretary of the Commonwealth, treasurer 
 and 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- 
 governor, and state senators, would do much to 
 remedy this evil. These changes, with a few 
 other slight modifications of the Constitution, in 
 the same direction, especially the establishment of 
 a board of men to count the votes, declare the 
 result, and notify the persons elected, would en 
 able the legislature to organize the government, 
 and be ready to proceed with the business of the 
 session, in two, or, at the longest, in three days. 
 This change alone, would, in the course of ten 
 years, nearly, or quite defray the whole expense 
 of the Convention." 
 
 Now, Sir, if we adopt the Report of the Com 
 mittee, now under consideration, we shall be 
 leaving this present cumbersome, formal, and ex 
 pensive mode, exactly where it stands in the Con 
 stitution. It seems to me, Sir, as was said by 
 my colleague, this morning, that those officers 
 who are made elective, and for whom the whole 
 people of the Commonwealth are called upon to 
 vote, should be elected by pluralities, so as to do 
 away with all this trouble. If we elect them by 
 majorities, we shall be keeping up this formal 
 and cumbersome mode, which, as this document 
 tells us, is a waste of some six or eight thousand 
 dollars of the people s money, annually. 
 
 Mr. HALLETT. I understand, that there are 
 two propositions now before the Committee : one 
 is to adopt an amendment to the first resolution, 
 by applying the plurality rule to it; and the other, 
 is to amend the third resolution, so as to require a 
 majority to elect the representatives from the 
 towns. I understand, that these two amendments 
 are now pending. I propose to say a very few 
 words, in order that I may stand consistently 
 upon the record. When that question was under 
 discussion, by this body, on a former occasion, I 
 took the opportunity to express my opinion, that 
 the majority principle was the only true rule 
 that I knew of no other sound, republican rule 
 but that, if it was a question of expediency, we 
 might submit to the people the question upon the 
 plurality and the majority, so that they could 
 have an opportunity to decide upon this question, 
 
 and that the plurality principle might be applied 
 to certain officers, while we should require a 
 majority, as applicable to other officers ; and I 
 went so far as to say and I stand upon the same 
 position now that it is an exception to the princi 
 ple that keeps the government in the hands of the 
 majority. Nevertheless, I should be willing to 
 submit some proposition to the people, in order 
 that they might pass upon this question of plu 
 rality. But, Sir, as regards the amendment 
 proposed by the gentleman from Plymouth, I feel 
 bound to say, that that is the last fortress of the 
 majority principle which I am willing to sur 
 render. While I do not propose to make a point 
 of issue, in regard to the other portion of the 
 Ileport talcing the majority principle, in certain 
 cases, and the plurality rule, in other cases I 
 want to present to this Committee the single con 
 sideration, that we ought not, in our Constitution, 
 make any change in the present mode of elect 
 ing representatives. The legislature has no power 
 in the Constitution to touch it. The Constitu 
 tion, Sir, says nothing about it. For two hundred 
 years, in this Commonwealth, we have never 
 heard in its history, that a representative in gen 
 eral court, was ever chosen by less than a majority 
 of the community voting for him. There has 
 not been a word put into any Constitution about 
 it. It was not put in by the framers of the Con 
 stitution, in 1780 ; it was not put in by the amend 
 ments of 1820, and the legislature have never 
 acted upon it. Now I should greatly prefer one 
 of two things : either to leave it out of our 
 amendments to the Constitution altogether, by 
 striking out the whole of that provision which 
 relates to representatives, or give authority to the 
 legislature to pass a plurality law, if the towns 
 want it, or else to amend it, so as to require a 
 majority, by the terms of the Constitution. I 
 am content to go so far as to leave the subject to 
 the legislature ; but I am not content to go so far 
 as to say, as a fundamental law of this Common 
 wealth, unchangeable, except in the mode of 
 changing the fundamental law, that the towns of 
 this Commonwealth may elect representatives by 
 minorities. That is precisely the same thing ; for 
 to say that they may elect by the plurality sys 
 tem, is to say that a minority may elect. I go 
 upon principle, in regard to this matter. I want 
 the towns to reflect, whether we can take this step, 
 and hereafter preserve our principles, in regard to 
 town representation. If there is any principle in 
 town representation, it is this : that towns are 
 distinct communities in the Commonwealth, 
 which communities are entitled to representation 
 not merely, that individuals as parts of the 
 whole population, are entitled to representation 
 
60th day.] 
 
 ELECTIONS BY PLURALITY. 
 
 97 
 
 Monday," 
 
 HALLETT. 
 
 [July 18th. 
 
 but that town communities are entitled to be 
 represented, through the individuals who compose 
 these respective communities. That is the only 
 principle upon which I can act, in advocating 
 town representation ; and there I can stand. 
 Now, if you give to these communities the right 
 to be represented in one branch of the general 
 court, is it safe to say, that these communities 
 may be represented here by a minority ? I have 
 great doubts upon this matter, because, then it 
 comes to this point : you may put your House of 
 Representatives in the hands, in the first place, of 
 of a minority of the whole people, by the mode 
 of a representation of communities, instead of 
 that based upon the aggregate population ; and 
 then, you go one step farther, and put these com 
 munities into the hands of a minority of the 
 communities, so that it is a minority of a minority 
 that will elect your representatives, for a term of 
 years, until the Constitution is changed, and con 
 trol this branch of the legislature. It is true 
 and therefore our town representation principle 
 is sound that the House of Representatives, so 
 apportioned, does not control the government, 
 and if you preserve the other departments of the 
 government in the hands of a majority, that 
 may so far balance it, and the government will be 
 only of a majority. But, I think that we should 
 preserve, at least, the great principle in regard to 
 the election of representatives, that they should 
 be chosen by a majority, and nothing less. That 
 renders this portion of the Report of the Com 
 mittee especially important, as a matter of prin 
 ciple. 
 
 Now, as it regards the question of expediency 
 in town representation, if I am right in this prin 
 ciple of government, that we must have a major 
 ity in government to be republican, the practica 
 bility of electing by majorities is very different in 
 town elections from what it is in elections at large. 
 In the first place, the towns may continue to try 
 to elect representatives, and they may be allowed 
 to try as they did under the old law. At all 
 events, they continue to have trials for the elec 
 tion of representatives. But, Sir, a town has a 
 right to be represented, or not represented, as it 
 pleases. That is an ancient town, right; and I 
 hold that if the people cannot agree as to a repre 
 sentation by a majority, it is just as much a vote 
 determining not be represented, as if it were 
 placed upon the record not to send. But herein 
 you propose that a town, by the operation of the 
 plurality, in effect, shall be represented, whether 
 it will or not. I very much question if that is 
 not introducing a principle more restrictive of 
 town rights than if we limited their representa 
 tion, because you allow a minority to compel a 
 73 
 
 town to be represented, when a majority of the 
 people of that town are opposed to being repre 
 sented by the person who is chosen. A few vo 
 ters will go into the town meeting, who get there 
 first, and vote to send, or begin to ballot, when 
 three-fourths of the voters will not be represented 
 in the general vote, or in the choice. So a minority 
 may dissolve the meeting. You may, neverthe 
 less, call a meeting by the selectmen, at the 
 proper period in November, and then have an 
 election, by a minority vote ; and if you have 
 four or five parties in the field, a plurality, con 
 sisting of a minority of one-fourth, may elect a 
 representative and send him to the general court, 
 r-gainst the majority who vote, and against the 
 corporate will of the town, not to be represented. 
 I do not wish to place the towns in that attitude. 
 If I were going to vote in this matter merely as 
 a politician, so as to cull a plurality party out of 
 all the three parties in the Commonwealth, I 
 would go for this ; and it is a strong temptation 
 to do so, because I confess I want to get rid of 
 that third party. I believe that they will do 
 much better for themselves and for their country, 
 by being fused into the other two parties, accord 
 ing to their individualities, than by undertaking 
 any longer to keep house themselves as a party j 
 and I Avill say, that those who carry this plurality 
 doctrine out, in the choice of all officers, must not 
 blame us who opposed it, if we hold the knife 
 which they have whetted, to their throats. But 
 I stand here, upon the general principle, that I 
 consider these communities of towns as the ele 
 ments of House Representation, and being the 
 elements of that representation, I cannot consist 
 ently vote for sending their representatives here 
 by a minority. I hope, therefore, as it was only 
 my purpose to set myself right on this question, 
 that this amendment, as regards the third resolve, 
 will be adopted, so that it will read, " that in the 
 election of representatives to the general court, a 
 majority of all the votes given in shall be neces 
 sary for an election," and if that does not prevail, 
 then, at least, let the amendment which has been 
 suggested, be adopted. You ought to have an 
 election by plurality at the first trial, at all events, 
 otherwise you say that those who are to elect 
 your representatives shall be men who can afford 
 to ride to the polls, and not those who have to 
 walk, and cannot well lose a day s work ; for that 
 is all the difference, a difference between men of 
 property in the villages, and a sparse population 
 of farmers and laborers, scattered in the rural 
 sections. Almost every man can and will go to 
 the polls on the first day, when a trial is to be 
 made ; but the laboring man cannot afford to lose 
 his dollar each day, for four or five times, unless 
 
98 
 
 ELECTIONS BY PLURALITY. 
 
 [60th day. 
 
 Monday," 
 
 FOSTER STETSON. 
 
 [July 18th. 
 
 it should happen to be on some great and exciting 
 occasion. If you will have a plurality, therefore, 
 in town representation, let it apply to the first, 
 and not to the second trial. My judgment is that 
 you had better not put this provision in at all, 
 but keep the majority as it now stands, and leave 
 it to the legislature to decide whether the towns 
 want the plurality rule, and if they really do, let 
 them have it. 
 
 Mr. FOSTER, of Charlemont. I am in fa 
 vor of the amendment of the gentleman from 
 Plymouth. My constituents have been unrepre 
 sented for the last two years because they could 
 not agree upon the man to be sent, and when I 
 was at home the other day I told them that I 
 should still sustain the majority principle on the 
 subject, and they consented still to be without 
 representation ; for they considered the majority 
 principle a safe one. I told them that there was 
 a special reason why I should support this prin 
 ciple, and that is : that we are likely to have a 
 large House of Representatives and I would be 
 very willing to have the House thinned out a 
 little by these very failures to elect, and that that 
 was one of the strong motives why I am so much 
 in favor of the majority system. 
 
 Mr. STETSON, of Braintree. I do not intend 
 to detain the Convention. When I hear my 
 friend oppose what I consider a democratic prin 
 ciple, and a democratic rule, I am induced to ad 
 dress the Convention. I believe, Sir, that the 
 majority principle, as it now exists in the State, 
 is, in fact, a rule by winch the very smallest mi 
 nority rules the majority. That is the fact ; and 
 I think that some provision should be made in 
 the Constitution by which this may be overcome, 
 or set aside, in some way or other ; and I know of 
 no way unless we adopt what is called the plu 
 rality system. I believe that the system of plu 
 rality is the most just and equal to the majority 
 of all parties, and that the rule itself, nine times 
 out of ten, results in giving a fair majority of the 
 people in favor of such candidates as are brought 
 forward for election. And is it not a fact that 
 under the majority rule, you find the little party 
 will govern in almost all cases ? Where there 
 are two parties, the Whig and the Democratic, 
 or the Free Democratic and the Democratic, 
 where the two parties are nearly balanced, and we 
 say that the majority shall rule, one or the other 
 of these parties are bound to coalesce if they wish 
 to choose. And what is the result ? By a coali 
 tion one party will succeed ; but if each party 
 stands upon his own right, independently of the 
 others, no person can be chosen. Now that is the 
 rule. I hope the Convention will adopt the Re 
 port of the Committee. I am willing to go far 
 
 ther, and think the plurality rule should go as 
 far as it can be made to go ; that we should elect 
 all officers under the State government by a plu 
 rality vote. That is the true doctrine, and I can 
 well conceive why my friend for Wilbraham, 
 (Mr. Hallett,) is so loath to concede that even a 
 majority should rule ; because I do not know but 
 he is one of the fathers of the two-thirds rule, 
 contending that two-thirds of a party should be 
 brought to bear upon a single object, or else 110 
 one can be chosen. 
 
 Now the two-thirds rule is one of the most 
 destructive inventions that ever existed ; and I 
 would appeal to gentlemen, whether that rule 
 does not throw out all the men who are the most 
 deserving of office ? I say, that by this iron rule, 
 the most valuable men are thrown aside. I can 
 conceive no other reason why mv friend is so 
 loath to adopt the Report of the Committee, except 
 that he wants that iron rule to continue. Now, 
 I am sorry to say, we had some long speeches 
 made, on a former occasion, upon the subject ; 
 that those who have always supported the demo 
 cratic principles, have come out and said, here 
 upon this floor and I believe my friend on the 
 right is among the number that the plurality 
 principle tends to destroy the very foundation of 
 the government. 
 
 Sir, I am sometimes called radical ; but if this 
 plurality rule is a radical measure, then I am a 
 radical. I do not believe but that the principle 
 itself produces the effect which we all desire ; that 
 it develops the true principles of the majority. 
 I will venture to say, Sir, that two-thirds of all 
 the legal voters in the State of Massachusetts are 
 among the working classes. One of the prin 
 ciples of democracy, I believe, is to relieve the 
 masses from the oppressions of wealth ; and I 
 contend that the majority rule, as it operates un 
 der present circumstances, is one of an oppressive 
 character. The men upon whom the burdens of 
 taxation fall most heavily, are the working men 
 men who are often compelled to meet, from 
 time to time, and from day to day, at the polls to 
 vote, or relinquish their right of being represented. 
 And I would appeal to every member of the Con 
 vention if he does not know, in every election, 
 after the first or second day, who are the parties 
 who do not appear at the polls ? Is it not the 
 laboring classes, the rank and file of the party ? 
 The consequence is, that we cannot get even 
 a fair plurality of the voters of the towns when 
 an election takes place. Persons are thus voted 
 into office by a very small number of voters. 
 I have myself been voted into the House of 
 Representatives, on a majority vote, by a less 
 number than would have constituted a plurality 
 
60th day.] 
 
 REPORTS FROM A COMMITTEE, &c. 
 
 99 
 
 Monday,] 
 
 HALLETT HALE FROTH INGHAM. 
 
 [July 18th. 
 
 vote on the first day of election. And why is it 
 that we suffer this thing to remain on the statute 
 book, year after year, without bringing the mat 
 ter forward, and putting it to the people what 
 they desire ; that is what the laboring classes 
 want, that we should adopt this plurality ques 
 tion. Sir, during the sittings of this Convention, 
 I have not seen a Democrat among my constitu 
 ency, or among any other, who does not believe 
 that the people desire, and want this principle of 
 plurality adopted. They desire it for the best of 
 all reasons in the world that they may relieve 
 themselves from the oppressive burden which this 
 majority rule inflicts upon them. 
 
 I contend, Sir, that this principle is one of 
 Democratic birth ; that it has received the support 
 of Democrats in all the States of the Union, and 
 that it has been advocated in an address to the 
 people of the Commonwealth. But enough has 
 been said upon that point. The people know it ; 
 they understand it ; and they expect to have the 
 question put to them upon this plurality mode of 
 election. They ask for it ; and, I believe, that in 
 the present state of parties, as that principle has 
 operated, it has developed itself in the best possi 
 ble manner. It entirely does away with that op 
 pressive burden which is thrown upon the work 
 ing classes. It is right and just that we should 
 adopt it ; and therefore I am in favor of the Report 
 of the Committee being sustained, as far as it 
 goes. I admit that it does not go far enough for 
 me ; but I shall sustain the Report of the Com 
 mittee. 
 
 On motion by Mr. CRESSY, of Hamilton, the 
 Committee rose, and, the President having re 
 sumed the chair of 
 
 THE CONVENTION, 
 
 The chairman of the Committee of the Whole re 
 ported progress, and asked leave to sit again. 
 Leave was granted. 
 
 Reports from a, Committee. 
 
 Mr. HALLETT, for Wilbraham, presented the 
 following Reports from the Committee on the Bill 
 of Rights, which were referred to the Committee 
 of the Whole, and ordered to be printed. 
 
 COMMONWEALTH OF MASSACHUSETTS. 
 
 In Convention, July 18, 1853. 
 The undersigned, a minority of the Committee 
 on so much of the Constitution as is contained 
 in the Preamble and Bill of Rights, report that 
 the second Article of the Bill of Rights ought to 
 be so altered as to change the words "for his 
 religious profession or sentiments," to the words 
 
 " for his profession or sentiments concerning re 
 ligion." 
 
 So that it will read, if so amended : " And no 
 subject shall be hurt, molested, or restrained in 
 his person, liberty, or estate, for worshipping God 
 in the manner and season most agreeable to the 
 dictates of his own conscience, or for his profes 
 sion or sentiments concerning religion." 
 
 B. F. HALLETT. 
 
 ANSON BURLINGAME. 
 
 CHARLES SUMNER. 
 
 HENRY WILLIAMS. 
 
 GEO. S. HILLARD. 
 
 COMMONWEALTH OF MASSACHUSETTS. 
 
 In Convention, July 18, 1853. 
 The undersigned, a minority of the same Com 
 mittee, also report. 
 
 To strike out from the 28th Article of the Bill 
 of Rights the words " but by the authority of the 
 legislature." 
 
 So it will read, if amended : " No person can, 
 in any case, be subjected to law-martial, or to any 
 penalties or pains by virtue of that law, except 
 those employed in the army or navy, and except 
 the militia in actual service." 
 
 B. F. HALLETT. 
 L. MARCY. 
 II. WILLIAMS. 
 
 COMMONWEALTH OF MASSACHUSETTS. 
 
 In Convention, July 18, 1853. 
 The undersigned, a minority of the same Com 
 mittee, also report. 
 
 That there should be added to the loth Article 
 of the Bill of Rights the following clause : 
 
 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. 
 
 B. F. HALLETT. 
 
 ANSON BURLINGAME. 
 
 CHARLES SUMNER. 
 
 L. MARCY. 
 
 CHARLES ALLEN. 
 
 H. WILLIAMS. 
 
 On motion by Mr. HALE, of Bridgewater, the 
 Convention adjourned, until three o clock, P. M. 
 
 AFTERNOON SESSION. 
 The Convention reassembled at three o clock. 
 
 Specie Payments. 
 
 Mr. FROTHINGHAM, of Charlestown, from 
 the Committee on the subject of Banking, submit- 
 
100 
 
 CLOSE OF DEBATE, &c. 
 
 [60th day. 
 
 Monday,] 
 
 EAKLE WILSON BRADBURY WOOD. 
 
 [July 18th. 
 
 ted the following Report, which was referred to 
 the Committee of the Whole, and ordered to be 
 printed. 
 
 COMMONWEALTH OF MASSACHUSETTS. 
 
 In Convention, July 18, 1853. 
 The Committee on the subject of Banking, 
 to whom was referred an order, to consider the 
 expediency of providing that the legislature shall 
 have no power to authorize, or pass any law sanc 
 tioning the suspension of specie payments by any 
 corporations issuing bank notes, have considered 
 the same, and report, that it is inexpedient to 
 take any action on this subject. 
 
 RICHARD FROTHINGHAM, JR., Chairman. 
 
 Final Adjournment. 
 
 Mr. EARLE, of Worcester, from the Commit 
 tee on the subject of the Final Adjournment of 
 the Convention, reported, that in the opinion of 
 the Committee, the Convention may finish up its 
 business, and adjourn on Saturday, the twenty- 
 third instant. 
 
 The Report was laid upon the table. 
 
 The Pay Roll. 
 
 Mr. WILSON, of Natick, submitted the fol 
 lowing order, which lies over for consideration 
 to-morrow : 
 
 Ordered, That the Committee on the Pay Roll 
 be instructed to make up the same, including the 
 day of adjournment, and that no member receive 
 pay except for the days of actual attendance. 
 
 Limitation of Debate. 
 
 Mr. ADAMS, of Lowell. I move now, Mr. 
 President, that debate in Committee of the Whole, 
 upon the subject of Elections by Plurality, cease 
 in one hour after the Committee shall again re 
 sume the consideration of the same. 
 
 Mr. BRADBURY, of Newton. It will be 
 remembered, by the Convention, that this subject 
 has been under consideration heretofore, in the 
 Committee of the Whole, and that we found our 
 selves, at the close of that discussion, with some 
 eight or nine entirely new and distinct questions 
 to settle, after the hour had arrived at which de 
 bate had been ordered to be closed, by an imper 
 ative vote of the Convention. There is little time 
 now allowed, very little, and there are a number 
 of questions before the Committee of the Whole, 
 and they may be varied, by new motions con 
 stantly offered ; and I submit, whether it is proper 
 or fair, to the members of the Convention, to put 
 it in the power of a member of the Committee of 
 the Whole, to bring a member to a vote upon a 
 
 question instanter, without any opportunity for 
 discussion ? 
 
 The proceedings in this Convention, in this re 
 spect, have been very unlike the usual deliber 
 ative proceedings in this capitol, and I have heard 
 members of different views unite in condemning 
 them. Under a procedure similar to that now 
 recommended by the gentleman from Lowell, 
 (Mr. Adams,) the basis of the House, which had 
 been for many days under discussion, and had 
 been deliberately modified, was at once, with 
 out debate, essentially transformed, on a motion 
 which, for want of time, could be neither dis 
 cussed nor examined. 
 
 And I am fully of opinion that, exclusive of 
 those who had had the privilege of previous exami 
 nation, there was not one man in ten that knew 
 the effect of the proposition to which I refer, of 
 the gentleman from Lowell, (Mr. Abbott,) which 
 constitutes the vital part of the adopted basis of 
 the House of Representatives. 
 
 I will say no more, because I have spoken three 
 or four times upon this subject, but I have been 
 brought to vote upon propositions entirely new 
 to me, and upon which, not one word of ex 
 planation was allowed, pro or con. On the 
 previous occasion, after having consumed a great 
 deal of time in the discussion of the general 
 question of plurality, we were brought to vote 
 instanter upon eight or nine distinct issues ; and 
 now I submit, whether it is right to place our 
 selves in a position where we cannot fairly and 
 fully understand the questions which may be 
 presented ? I submit, as the Convention has full 
 control over the Committee of the Whole, 
 whether it would not be better for the Conven 
 tion to instruct the Committee of the Whole to 
 report at a certain time, so that the right to sub 
 mit new propositions, and the right to debate, 
 may be coextensive ? 
 
 Mr. WOOD, of Fitchburg. This Convention 
 has already been in session a month longer than 
 it was expected to be, and this subject now under 
 discussion, has heretofore had one full discus 
 sion, and at the time it was recommitted, it was 
 said, as an objection to its recommitment, that we 
 should have to go over the whole matter, de novo, 
 its origin, its history, and all, at as great length as 
 at first. But we were assured by many members 
 of the Convention that it should not be so, for as 
 most of us understood all the bearings and all 
 the suggestions in relation to the matter, though 
 we should not precisely approve of the Report of 
 the Committee, we could proceed to vote without 
 much discussion ; indeed, without there being any 
 necessity for much discussion. I was surprised, 
 under these circumstances, to see, this forenoon, 
 
60th day.] 
 
 ELECTIONS BY PLURALITY, &c. 
 
 101 
 
 Monday,] 
 
 WOOD BRADBURY LADD. 
 
 [July 18th. 
 
 with what ardor certain gentlemen made an attack 
 upon the Report of the Committee, and to see 
 them proceed to argue it as a new question before 
 us. If this course is to be pursued, I seriously 
 ask, when are we to get through ? The question 
 has been asked by our constituents many times, 
 and as often we have been compelled to say we 
 do not know, and cannot tell ; that many of our 
 debates are spun out to an unreasonable length, 
 and that things which were fairly understood by 
 all of us, have been talked about over and over 
 again, until we were disgusted by them. Now, 
 the question is, whether we shall go on talking 
 over these matters, or whether we will come to a 
 decision upon them, and thus be able to meet 
 our constituents with honest faces ? 
 
 It seems to me that it is about time, that now, 
 the latter part of July, we should seriously think 
 about adjournment, and that we should expedite 
 business by working seriously, and talking less. 
 Here is a fit subject for us to begin upon ; and 
 will we keep talking about the matter? The 
 gentleman from Newton, (Mr. Bradbury,) thinks 
 that we are unable to understand the matter, as 
 though we were fools. It is not so. I am some 
 what surprised to see how well the members of 
 this Convention understand subjects brought be 
 fore them most of them much better than I do. 
 "Without saying anything more because I wish 
 to exemplify my theory by practice I hope the 
 motion will prevail. 
 
 Mr. BRADBURY, of Newton. I move to 
 amend the motion of the gentleman from Lowell, 
 (Mr. Adams,) by striking out the word " one," 
 and inserting in lieu thereof, the word " three," 
 BO as to provide that the question shall be taken 
 in three hours after the Committee of the Whole 
 shall resume the consideration of the subject. 
 
 The question was taken on the latter amend 
 ment, and it was not agreed to. 
 
 Mr. BRADBURY. I now move to strike out 
 "one," and substitute "two." 
 
 The question was taken on the latter motion, 
 and the amendment was not agreed to. 
 
 The question recurring on the original motion 
 of Mr. Adams 
 
 Mr. BUTLER, of Lowell, moved to strike out 
 the word " one," and substitute " three-quarters 
 of an hour." 
 
 Mr. ADAMS accepted the amendment. 
 
 The question was then taken, on the motion 
 offered by Mr. Adams, as modified, and it was 
 decided in the affirmative ayes, 107 ; noes, 73. 
 
 So the motion was agreed to. 
 
 Elections by Plurality. 
 Mr. UNDERWOOD, of Milford. I move 
 
 that the Convention resolve itself into Committee 
 of the Whole, upon the unfinished business of 
 the morning, to wit : the subject of Elections by 
 Plurality. 
 
 The motion was agreed to. 
 
 The Convention accordingly resolved itself into 
 
 COMMITTEE OF THE WHOLE, 
 
 Mr. Hillard, of Boston, in the chair. 
 
 The CHAIRMAN stated the question to be 
 first, upon the amendment submitted by the gen 
 tleman from Plymouth, (Mr. Davis,) and then 
 upon the motion of the gentleman from Boston, 
 (Mr. Schouler,) heretofore inserted. 
 
 Mr. LADD, of Cambridge. I confess that I 
 do not fully understand the object sought to be 
 accomplished by the third resolve, to which the 
 amendment of the gentleman from Plymouth, 
 (Mr. Davis,) applies, nor have the Committee 
 which reported them, thrown much light upon the 
 subject. I find that it is reported here, that, 
 upon the first trial for the election of representa 
 tives, the majority principle shall obtain. But if 
 no one shall obtain a majority, then that the candi 
 date having the highest number of votes upon a 
 second, or any subsequent ballot, shall be de 
 clared elected. I can very well understand what 
 the majority rule itself is, and the force of the 
 arguments which are brought to sustain it and 
 show why it should be applied. I can very well 
 understand what the plurality system is, and can 
 appreciate the force of the arguments which are 
 advanced in support of that rule. But when it 
 is proposed, that a majority of all the votes cast, 
 shall be required upon the first balloting, to elect 
 a member of the legislature, and a plurality only 
 of votes cast upon a second, or any subsequent 
 ballot, it seems to me that, in the first place, an 
 unnecessary amount of machinery is introduced, 
 to accomplish precisely the same purpose. If 
 there is an election upon the first balloting, the 
 majority rule prevails. If there is a plurality 
 only of votes, why precisely the same thing is 
 accomplished as is propc sed to be accomplished 
 by a plurality upon the second balloting. It ap 
 pears to me that, as the first trial is ordinarily 
 held, and will be held, when a choice of officers 
 for the Commonwealth is to be made, that there 
 will, in ninety- nine cases out of one hundred, be 
 a much fuller expression of public opinion, than 
 there will be upon the second trial ; and I should 
 like to be informed of the object to be accom 
 plished by this resolve, that there shall be an 
 election by a plurality vote upon a second trial. 
 I can see no purpose to be accomplished. I sup 
 pose, in point of fact, that in the large towns of 
 the Commonwealth, if there should be no choice 
 
102 
 
 ELECTIONS BY PLURALITY. 
 
 [60th day. 
 
 Monday,] 
 
 LADD MOREY. 
 
 [July 18th. 
 
 upon the first balloting, there would be none at 
 all, except by an adjournment to the next day, 
 or to some subsequent day. Undoubtedly in the 
 small towns, where it is customary to ballot more 
 than once upon the same day, a result might be 
 obtained. But I do not see how anything is to 
 be accomplished, by any reasoning which has 
 been presented to this Convention, and it can only 
 give force to other considerations which are not 
 worthy of being presented as arguments before 
 this Convention. I can see how it gives an op 
 portunity of success to the minority of the elec 
 tors on the second trial, and, by an arrangement, 
 or some other mode, to defeat the will of the ma 
 jority ; but for all practical purposes, it seems to 
 me, that the second provision is useless, and I 
 think we ought to adhere to the majority princi 
 ple in the election of representatives, or to the 
 plurality system ; and, at the proper period, I 
 shall offer the following amendment : 
 
 Resolved, That in all elections of representa 
 tives to the general court, the person having the 
 highest number of votes shall be elected. 
 
 Mr. MOREY, of Boston. The question now 
 under consideration, is one of the most important 
 that has been brought before the Convention. It 
 is one in which the people feel a deep interest, 
 probably a deeper interest than in any other that 
 has been discussed here. This matter came be 
 fore the Committee of the Whole some weeks 
 ago, and was then discussed at much length, but 
 it was found that there was nearly an equal 
 division of sentiment upon the subject, and it 
 was deemed of so much importance, that it was 
 referred to a new Special Committee. That Com 
 mittee had the matter under consideration some 
 four or five weeks before they made their Report. 
 During this whole interval, the policy of adopt 
 ing the plurality principle must have been dis 
 cussed in private circles, and I am sure many 
 members have bestowed upon it much attention. 
 It certainly has been expected that when this 
 Report should be called up, there would be a full 
 discussion upon it, and that we should obtain the 
 views of many gentlemen, enlarged and matured 
 by conversations, not only with their associates 
 here, but with other persons, in various parts of 
 the Commonwealth. But when this Report came 
 in order, and members rose to express their 
 opinions, they found themselves embarrassed, 
 and liable to be cut off in the midst of their 
 speeches, by a miserable half-hour rule, and now 
 they are put under the restriction of an order just 
 adopted, declaring that all discussion upon this 
 great subject shall cease in the Committee of the 
 Whole, in three-quarters of an hour. It may be 
 
 said that the question will come up again in the 
 Convention ; but when it does, a similar summary 
 process may be adopted, and an end be put to 
 all discussion. I do not complain of this on my 
 own account. I have no desire to express my 
 views in relation to the plurality principle, for I 
 happen to belong to that class of old fogies who 
 have preferred that a majority should be required 
 in our elections. I have at all times, heretofore, 
 been opposed to the plurality rule. Under present 
 circumstances, however, I feel constrained to vote 
 in favor of framing an amendment, establishing 
 this rule, and of sending it out to the people for 
 their consideration and action ; and my reasons 
 are mainly founded on the history of this Con 
 vention, to which I will now call the attention of 
 the Committee. In the legislature of 1851, the 
 senator from Franklin, (Mr. Griswold,) now the 
 delegate for Erving, brought forward a propo 
 sition to alter the Constitution in relation to the 
 system of representation in the House. He in 
 troduced two or three resolves, drawn up in 
 proper form, for the purpose of accomplishing 
 this object. These resolves passed the Senate, 
 but failed to obtain the requisite number of votes 
 in the House. Afterwards, an attempt was made 
 to district the cities and large towns, and a bill, 
 designed to effect that object, was carried through 
 the Senate and was sent to the House, where it 
 was referred to the Judiciary Committee, of 
 which the gentleman who is at the present time 
 attorney-general of the United States, was chair 
 man. It was understood that he was of opinion 
 that the legislature had no constitutional power 
 to enact such a law, and the bill was not, I be 
 lieve, ever reported to the House, but died in the 
 hands of the Committee. 
 
 The next movement of the indefatigable and 
 persevering senator from Franklin, was to offer 
 an order for calling a convention to revise the 
 Constitution, and a bill was, in due time, reported 
 by a committee of which he was chairman, pro 
 viding that the question whether such a Conven 
 tion should be held, should be submitted to the 
 people. 
 
 The committee, however, made no formal 
 written report, and of course did not set forth 
 their reasons for this measure ; but as the move 
 ment grew out of a failure to alter the Constitu 
 tion, touching the basis of representation in the 
 House, it was understood that the great object of 
 the Convention was to effect an important change 
 of that basis. It went before the people with this 
 aspect, and the result was, that the measure failed 
 by about five thousand majority against it, many 
 of the small towns even voting against it. At 
 the next session of the legislature, the project 
 
60th day.] 
 
 ELECTIONS BY PLURALITY. 
 
 103 
 
 Monday/ 
 
 MOREY GBISWOLD. 
 
 [July 18th. 
 
 was revived. The senator from Franklin, deter 
 mined, if possible, to accomplish his favorite 
 scheme, again brought forward a proposition for 
 calling a Convention. On his motion, a large 
 committee of both branches was appointed, of 
 which he was placed at the head. 
 
 The sagacious chairman was satisfied, from 
 the result of the former trial, that in order to in 
 sure success the next time, a formal and direct 
 appeal must be made to the people, by presenting 
 to them some more powerful reasons for calling a 
 Convention than such as related to the system of 
 representation in the House. It fortunately so 
 happened for the chairman, that a strong feeling 
 had grown up throughout the Commonwealth, in 
 favor of the plurality principle in our elections. 
 Several congressional districts had, for a long time, 
 been unrepresented. In the fourth district four 
 teen trials had taken place without securing an 
 election. A majority of the Senate had rarely 
 been elected for a long period, and sometimes not 
 even a quorum. There had been no election of 
 governor and lieutenant-governor for a series of 
 years. From these causes, a strong and general 
 desire had arisen for the establishment of the plu 
 rality rule. The subject had been much discuss 
 ed everywhere in newspapers, at conventions, 
 and other public meetings. 
 
 Under these circumstances, the Franklin sena 
 tor resolved to avail himself of this manifest pop 
 ular feeling, and drew up an elaborate report, set 
 ting forth the reasons for holding a Convention, 
 amongst which the necessity and expediency of 
 adopting the plurality rule, were strongly and 
 pointedly set forth. That report, after stating 
 that the proposed new system would save ex 
 pense, and prevent much party animosity, which 
 is now engendered by repeated trials, proceeded 
 to say : " That the practical operation of our 
 Constitution for the last ten years, has been, in 
 very many instances, to place in the most impor 
 tant offices in the State, men who have received, 
 not a majority, but only a plurality of the popu 
 lar vote. Indeed, this result seems to be fast be 
 coming the general rule, and not the exception. 
 And, in some instances, these offices have been 
 filled by men who have received not even a plu 
 rality of the popular vote." 
 
 The report goes on to state what officers should 
 especially be elected by a plurality, as follows : 
 " The election of secretary of the Commonwealth, 
 treasurer and receiver- general, auditor of accounts, 
 and executive councillors, by the people, with an 
 application of the plurality principle to these offi 
 cers, as well as to the governor, lieutenant-gover 
 nor, and state senators, would do much to remedy 
 this evil." 
 
 Thus the report specifies what officers the plu 
 rality principle should be applied to ; and what 
 are they? "Why, the very ones who it is now 
 proposed must have a majority to secure their 
 election ; that is the proposition now before us, is 
 just the reverse of what was recommended by the 
 legislative committee. 
 
 Mr. GRISWOLD, for Erving. Will the gen 
 tleman yield to me for a moment. 
 
 Mr. MOIIEY. For a moment. 
 
 Mr. GRJSWOLD. As this subject has been 
 so often alluded to, in justice to the other mem 
 bers of the committee who signed that report, I 
 desire to make a single remark, for I think they 
 have been somewhat misapprehended in relation 
 to this subject. For myself, I care little about 
 the matter, for I believe my sentiments upon the 
 subject of plurality are well enough understood ; 
 I should prefer that these officers should be elect 
 ed by plurality, if I could get it, but it is evident 
 that is not the feeling of the Convention. But, 
 Sir, if this seventh section of the report is quoted, 
 it should be done in connection with the sixth. 
 I will read the beginning of that article. 
 
 Mr. MOREY. I can hardly afford to lose my 
 time for the gentleman to read from his report. 
 
 Mr. GUIS WOLD. Just a line or two. 
 
 Mr. MOKEY. I will read the whole two sec 
 tions, if the gentleman desires it. Here they are : 
 
 " 6. In the sixth place, we recommend the adop 
 tion of the plurality system, in more of our elec 
 tions. 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 the most expe 
 dient, if the system is to be adopted, to apply it 
 to ihcflrst, or only to the second, or some subse 
 quent 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 Constitu 
 tion should undergo a thorough revision ; it 
 should be done not rashly, but with great care 
 and deliberation. We are aware that the majori 
 ty principle has long been considered the con 
 servative element of our Constitution ; and many 
 sound and well-balanced minds may take alarm 
 at a proposition of this kind ; but we think that 
 a moment s reflection will satisfy the mo.^t fastid 
 ious, that their fears are groundless. The practi 
 cal 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 re 
 sult seems to be fast becoming the general rule, 
 and not the exception. And in .some instances, 
 
104 
 
 ELECTIONS BY PLURALITY. 
 
 [60th day. 
 
 Monday,] 
 
 MOB.EY. 
 
 [July 18th. 
 
 these offices have been filled by men who have 
 received not even a plurality of the popular vote. 
 
 " No one has a right to complain of these results, 
 so long as the Constitution remains as it is ; and 
 we only allude to them, for the purpose of show 
 ing that the Constitution itself, in its practical 
 operation, has partially destroyed a principle, 
 which by many has long been considered essen 
 tial to the stability and perpetuity of our govern 
 ment. This subject was thoroughly discussed, in 
 all its bearings, in the popular branch of the legis 
 lature, during the sessions of 1849, and 18oO, and 
 although the most disastrous results were then 
 predicted, should the plurality principle to any 
 extent become a law, yet we believe that the act of 
 last session, providing for the election of members 
 of congress by plurality on the second trial, is not 
 only a just, and safe, but very popular law. 
 
 " 7. The present cumbersome, formal mode of 
 organizing the government, we submit, should be 
 abolished. 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 election of 
 secretary of the Commonwealth, treasurer and 
 receiver- general, auditor of accounts, and execu 
 tive councillors, by the people, with an application 
 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. 
 These changes, with a few other slight modifica 
 tions of the Constitution in the same direction, 
 especially the establishment of a board of men to 
 count the votes, declare the result, and notify the 
 persons elected, would enable the legislature to 
 organize the government, and be ready to proceed 
 with the business of the session, in two, or at the 
 longest, in three days. This change alone, would, 
 in the course of ten years, nearly or quite defray 
 the whole expense of the Convention." 
 
 Now, Sir, if the gentleman had desired to use 
 language more strong and specific, he could not 
 have done it. That document was regarded as 
 an able and elaborate report, as it is. It was 
 praised and quoted from in all the newspapers, 
 except the Whig newspapers, and I believe in 
 some of them. It certainly was extolled, not only 
 in all the Democratic newspapers, but in most of 
 the Free Soil journals. Several thousand extra 
 copies were ordered to be printed by the Senate, 
 and I think an extra number was ordered in 
 the House. It was regarded by the friends and 
 advocates of the Convention as the great cam 
 paign document, and it was so advertised in the 
 newspapers. It was reprinted, and a multitude 
 of copies sent broadcast over the Commonwealth. 
 I heard of it in every direction. It was thrown 
 into every house, put into every man s hands, 
 and was read everywhere. 
 
 And what was more, some of the gentlemen 
 who signed the document, being the most popu 
 lar orators of their parties, went forth and took 
 the stump in favor of the Convention. By look 
 
 ing into the Commonwealth, and other newspapers 
 of that date, you will find appointments for these 
 gentlemen to speak, in different portions of the 
 State, for almost every day in the week, for many 
 weeks prior to the time of voting upon this sub 
 ject. Well, Sir, when they thus went forth, they 
 surely supported the calling of a Convention, and, 
 I presume they used the same arguments as were 
 employed in the report which they signed. 
 
 Being anxious to learn how things were going 
 on, I made inquiries of some gentlemen, belong 
 ing to the party with which I was associated, 
 who had been out and addressed the people with 
 reference to the approaching election, and occa 
 sionally with regard to the Convention. When I 
 asked what the prospect was, as to the Conven 
 tion, the reply was, that the plurality doctrine 
 was carrying all before it ; that many of the 
 Whigs were coming out in favor of it, and that 
 the other parties were to a man, advocates for it. 
 
 In consequence of this state of things, the 
 W r hig speakers pretty much gave up the idea of 
 interposing any obstacle in the way of calling of 
 the Convention. They seemed inclined to let the 
 thing take its course. This was acquiesced in, 
 inasmuch as many of those speakers were in favor 
 of the plurality doctrine, and that doctrine was 
 put forth with so much prominence and effect by 
 its particular advocates. 
 
 Under these circumstances, it was not for me, 
 old fogy or not, to stand out against this feeling, 
 which was prevailing amongst the people, 
 especially when it appeared that so many of the 
 party with which I was acting, were disposed to 
 support this principle. My colleague, (Mr. 
 Schouler,) was, and had for a long time, been 
 earnestly in favor of the plurality. All the 
 speeches that were made during the campaign by 
 advocates of the Convention, contained more or 
 less arguments in favor of the plurality principle ; 
 and I undertake to say that it was the expecta 
 tion of securing this reform, more than anything 
 else, that carried the proposition for a Convention 
 with the people. I am very confident that if the 
 people had not supposed they were sure of hav 
 ing the plurality system adopted, there would have 
 been a decided majority against a Convention. If 
 the reformers in this body, who took the field 
 last autumn, and addressed the people on this 
 subject, had have then made the same speeches 
 which we have heard from them here, against the 
 plurality rule, the whole project of a Convention 
 would have been defeated by an overwhelming 
 vote. You had tried it once before with refer 
 ence to the basis of representation in the House, 
 and the scheme signally failed. 
 
 Yet, these very gentlemen, who put forth the 
 
60th day.] 
 
 ELECTIONS BY PLURALITY. 
 
 105 
 
 Monday,] 
 
 MOREY GOOCH. 
 
 [July 18th. 
 
 reasons I have stated, for calling a Convention, 
 and who induced the people to act upon them, 
 now virtually say to the people : " We have got 
 the Convention out of you, but as to this plu 
 rality system, you shall not have it. We not 
 only will not give it to you, but we will not so 
 much as frame an article of amendment, submit 
 ting the question to you. We will not allow you 
 to pass upon the subject." 
 
 Now, Sir, notwithstanding the fact that I have 
 heretofore been opposed to the introduction of 
 this principle, yet I, for one, have too much regard, 
 too much respect for the people, to take the course 
 which is pursued by members of this Conven 
 tion in relation to this matter. I think these 
 gentlemen indicate the most utter contempt for 
 the people by withholding this proposition from 
 them. I therefore say, that I am in favor of 
 framing an article of amendment, establishing 
 the principle, such as is contained in the propo 
 sition of my colleague, (Mr. Schouler,) making 
 those officers eligible by a plurality, who are 
 specified in the report and programme of the 
 Convention, drawn up by the gentleman for 
 Erving, (Mr. Griswold). 
 
 I would send out such a proposition, and let 
 the people decided upon it for themselves. Not 
 to do as much as this, is, as I said before, treating 
 the people with perfect contempt. It will be not 
 much better than obtaining goods by false pre 
 tences. It will be perpetrating a fraud upon the 
 people. They were called upon particularly to 
 vote for a Convention, in order that the plurality 
 principle might be fully established in our elec 
 tions, and now, when they have called the Con 
 vention, they are to be denied the privilege of 
 voting upon this measure, to secure which, this 
 Convention was advocated and called. Sir, I 
 repeat it. I shall vote in favor of submitting this 
 question to the people. I regard the members of 
 the Convention as more pointedly, specifically, and 
 emphatically instructed upon this subject than 
 upon any other ; and I think that by incorporating 
 with the amendments, to be submitted to the 
 people, an article containing this provision, we 
 shall more directly and certainly carry out their 
 wishes, than by any other proposition we can 
 adopt. 
 
 The low murmur of dissatisfaction with this 
 fraudulent suppression of the very amendment 
 which the people have expected, and most of all 
 desired, has already reached us from the hills and 
 valleys of Massachusetts. Ere long, we shall 
 see the leaders of the majority in this Convention 
 begin to quake and tremble ; and I venture to 
 predict, that before the close of the session, some 
 one of these Constitution-menders will be direct 
 
 ed to bring forward propositions to amend and 
 qualify certain important resolutions which have 
 been adopted, and to insert a shred here and a 
 patch there, in order to relieve, if possible, the 
 most obvious defects of their work, and to avert, 
 or moderate, in some degree, the censure of their 
 constituents. I warn gentlemen not to natter 
 themselves with the hope of escaping the indig 
 nation of the people by any miserable apology, or 
 even half-way substitute, for the adoption of a 
 plain, distinct, and extensive plurality system. I 
 say, let this principle be introduced in the election 
 not only of senators, executive councillors, county 
 and district officers, but of governor, lieutenant- 
 governor, secretary of state, treasurer, auditor 
 and attorney- general, and on the second trial, if 
 not on the first, of representatives to the general 
 court. Let this whole subject be submitted at once, 
 directly to the people, and to the people alone. 
 Nothing else can, will, or ought to satisfy them. 
 
 Mr. GOOCH, of Melrose. Mr. Chairman: 
 I never knew exactly what an old fogy was, until 
 I came into the Convention this afternoon. But 
 if we may take the definition of the gentleman 
 from Boston, (Mr. Morey,) he is a man who 
 thinks one way, and votes another. The gentle 
 man says he believes in the majority principle, 
 and yet, intends to vote to submit to the people a 
 proposition in favor of the plurality principle ; 
 and he claims to be an old fogy. 
 
 Now, Sir, the gentleman has very different 
 ideas of our duty as members of this Convention, 
 from those which I entertain, if he thinks that 
 by such a course of conduct we shall discharge 
 that duty. I believe we were sent here to recom 
 mend to the people such alterations in the Con 
 stitution as we believe should be made, and no 
 others. I believe the people have a right to 
 expect that every man here will act conscien 
 tiously; that when he votes he will vote his 
 honest sentiments, without regard to what other 
 people think, and without regard to what other 
 people may do. It seems to me that every man 
 who fails to vote and act in this manner, fails to 
 discharge his duty. 
 
 Now, Sir, in relation to the resolves before us, 
 I am sorry, as well as surprised, to see them re 
 ported in the form in which they appear before 
 us, coming, as they do, from the Select Commit 
 tee upon this subject. When this subject was 
 before us, upon a former occasion, I recollect a 
 certain distinction was made, or proposed to be 
 made, with regard to the election of certain offi 
 cers by a majority, and certain others by plural 
 ity. If I recollect rightly, the proposition was 
 introduced by the gentleman from Worcester. It 
 was, in substance, that the law-making power 
 
106 
 
 ELECTIONS BY PLURALITY. 
 
 [60th day. 
 
 Monday,] 
 
 GOOCH. 
 
 [July 18th. 
 
 should be elected by a majority, and that the 
 other ministerial officers should be elected by a 
 plurality. I thought then, that there was good 
 reason for the distinction, and I think so still. I, 
 for one, am perfectly willing to live in a Com 
 monwealth, and to abide by the laws which are 
 enacted by a majority of the people of the Com 
 monwealth, and I am willing to yield my private 
 judgment to no other authority. And should I 
 be called upon to yield my private judgment, to 
 yield my property, my liberty, or my life, under 
 the authority of the laws of this Commonwealth, 
 I desire that the laws which make this requisition 
 upon me should be the laws of the majority of 
 the people of the Commonwealth, and not the 
 laws of a minority. That is my doctrine, and I 
 had always supposed that to be the doctrine of 
 the people of Massachusetts. 
 
 I care not what documents certain gentlemen 
 have sent out to the people, to influence them in 
 calling this Convention. Those documents are 
 worth just as much as the opinions and senti 
 ments of those gentlemen expressed in any other 
 way, and no more. They have their weight as 
 the opinions of those individuals, and no other. 
 But I do not care how many men may have 
 recommended, or sent out this document recom 
 mending the establishment of the plurality prin 
 ciple ; it has no weight with me, except so far as 
 the opinions of those men who signed this docu 
 ment are concerned, and so far as the reasons it 
 contains are entitled to weight ; nothing farther. 
 I have been a little surprised, that such argu 
 ments and such influence, as have been used by 
 the gentleman from Boston, should have been 
 brought in here, and pressed upon gentlemen as 
 if they were binding upon them. Sir, I know 
 nothing about any such document as the gentle 
 man has referred to, and I care nothing about it. 
 I care not which party put forth this document ; 
 it can have no influence upon my vote. And I 
 believe it will have no influence upon the vote of 
 any honest man in this Convention. 
 
 I said I was surprised to see these resolutions 
 reported in the shape in which they now come 
 before us, because I did believe the Committee 
 would recognize the distinction made by the gen 
 tleman from Worcester, viz. : that the law-making 
 power of the Commonwealth should be chosen 
 by a majority, and that the mere ministerial offi 
 cers should be chosen by plurality. I supposed 
 the Committee might be willing to sacrifice this 
 much of the true principle, for the sake of con 
 venience and accommodation for the sake of 
 saving time, expense, and trouble. But I did 
 not believe they would go farther than that. 
 But what have we before us, in these resolves ? 
 
 In the first place, the governor is to be elected 
 by a majority of the people, provided he obtains 
 a majority upon the first trial, and if not, he is 
 not to be elected by the people at all ; but he is 
 to be elected by the agents of the people. He is 
 to be elected by those whom the people have del 
 egated, or whom they may delegate, for that pur 
 pose, in case of a non-election by a majority of 
 the people. "Well, Sir, I suppose the reasons for 
 that provision are these : I suppose they intended 
 to provide, in the first place, that the governor 
 should be elected by a majority of the people, 
 but that, in case no one received a majority of 
 the votes of the people, the majority principle 
 should still be maintained, and that he should be 
 elected by the House of Representatives and by 
 the Senate, who were also elected by a majority 
 of the people ; and this provision of the first 
 resolution I should like, if the other resolutions 
 provide for the election of the House and Senate 
 by a majority. Well, Sir, what do those resolu 
 tions do ? What do they provide ? They pro 
 vide that the governor shall not be elected by the 
 people at all, unless he is elected by a majority at 
 their first trial. And then they provide that your 
 House of Representatives shall be elected by a 
 plurality, or that a portion of its members may 
 be elected by a plurality, and your Senate by a 
 plurality, and that your governor shall be elected 
 by your Senate and House of Representatives. 
 You thus strike out the majority principle from 
 your law-making power, from beginning to end. 
 Now, Sir, although I have always been opposed to 
 the plurality principle as applied to the law-mak 
 ing power ; yet, rather than vote for these resolu 
 tions as they stand, I will vote for the plurality 
 principle, carried out to its full extent. 
 
 We provide, if we adopt these resolutions, that 
 every department of the government may be 
 chosen by plurality, without a single feature of 
 the majority principle entering into the system, 
 from beginning to end, and yet refuse to say that 
 a plurality of the people shall elect. As I said in 
 the outset, I care not for the majority principle, 
 except so far as the law-making power of the 
 Commonwealth is concerned. I would like to see 
 the offices mentioned in the first resolution 
 stricken out altogether, except the offices of gov 
 ernor and lieutenant-governor, and a provision 
 made, that, in all elections of senators and mem 
 bers of the House of Representatives, a majority 
 of votes shall be necessary, in all cases, to consti 
 tute an election. Then, if we fail to elect our 
 governor by the people, we have a House of Rep 
 resentatives and Senate elected by a majority of 
 the people, and they elect a governor. Then, 
 what do we establish ? If we cannot elect our 
 
60th day.] 
 
 ELECTIONS BY PLURALITY. 
 
 107 
 
 Monday,] 
 
 GOOCH BUTLER. 
 
 [July 18th. 
 
 governor directly by our votes, we provide that 
 those persons whom we have elected by a major 
 ity of the votes of the people to represent us in 
 the legislature, shall elect our governor for us. If 
 there is an election by a majority of the people, 
 the matter is settled ; but if there is no election by 
 a majority of the people, then the people have 
 said that they could not agree upon the election 
 of a governor. And in such a case, what do we 
 do ? As we cannot meet again, and decide this 
 question for ourselves, we pass it over to our 
 agents, elected by a majority of the people, and 
 let them settle this matter for us. And, if our 
 agents cannot secure for us our first choice, they 
 can take our second choice. That is the advan 
 tage we gain from this system. But, certain gen 
 tlemen assert, that by the adoption of such a sys 
 tem, certain towns must go unrepresented. Why 
 must they go unrepresented ? Simply, because 
 they do not desire to be represented; because 
 they had rather not be represented at all, than be 
 misrepresented. I grant you, that non-represeii- 
 tation is an evil ; but it is not so great an evil as 
 misrepresentation. I say, if my town cannot 
 have a man to represent it, who can represent a 
 majority of its citizens, then no man has any 
 right to represent it. If my town wishes to be 
 represented in the legislature, then the wishes of 
 a majority of its citizens should be represented, 
 and not the wishes of a minority. The evil of 
 non- representation is one which the town can 
 cure, and will cure, just as soon as it is for its 
 interest to do so. The very moment it is for the 
 interest of the town to have a representation upon 
 the floor of the House of Representatives, then it 
 will have such representation. There is nothing in 
 the way. They have nothing to do but select and 
 vote for a man, and send him here. If, in some 
 instances, certain towns do not send a representa 
 tive, it is because the condition and sentiments of 
 the people of these towns are such, that they can 
 not find men who will truly and properly repre 
 sent them here. The House of Representatives, 
 by the plan proposed, is to be larger hereafter than 
 it has been in times past, but we have never 
 known the time when there has not been on the 
 floor of the House a sufficiently large number of 
 representatives to transact the business of the 
 Commonwealth. I think an instance can scarcely 
 be found, when any town has suffered one iota 
 from the evil of non-representation. I hope that 
 the resolution, as it now stands, will not be 
 adopted by the Committee. Gentlemen ask me 
 how we will fill vacancies in the Senate, I 
 would provide for a second election, in the case 
 of the non-election of senators ; and I would see 
 to it, that a man should be sent who would truly 
 
 represent the majority of the district, or else send 
 no man at all. 
 
 Mr. BUTLER, of Lowell. In the few minutes 
 given me I will endeavor to say a word upon a 
 given subject, not proposing to enter upon an 
 argument of this question, for the time for argu 
 ment has passed. I wish to say a word about 
 that immortal "document" upon this subject of 
 plurality, which has now been read five times. 
 It was a very good argument, and it did its office 
 well, which was, to beat the old fogies, as their 
 chief admits ; but I do not see why it could not 
 have been suffered to rest in peace. The gentle 
 man from Boston, (Mr. Schouler,) read it ; then 
 the gentleman from Brookline (Mr. Aspiiiwall) 
 threw it at the head of the gentleman from Wor 
 cester, (Mr. Davis,) then, the gentleman from 
 Worcester not being here, I read another portion 
 of it; then the gentleman from Boston, (Mr. 
 Schouler,) read it again, and when another gen 
 tleman from Boston, (Mr. Morey,) so happily 
 edified the Committee by quoting from the 
 same able document, I was inclined to say, 
 et tu Brute. I should like to ask the gentleman 
 from Boston, (Mr. Morey,) if he could make up 
 his mind to elect a Whig representative " who is 
 worth his weight in gold" to the gentleman, by 
 plurality, without trying to get a majority? 
 Would he wish to elect even " a Hunker Demo 
 crat seventy-five years old?" Would he not, 
 after all, rather have a majority ? I was very 
 much surprised to find that the gentleman from 
 Melrose was going against the Report because 
 there was nothing of the majority principle in it. 
 I am surprised that my younger friend from 
 Melrose, (Mr. Gooch,) should say that rather 
 than have this, he would have the plurality all 
 through. There is some of the majority principle 
 in this Report. This proposition, as I said upon a 
 former occasion, is a compromise, or an agreement 
 to go upon one side as far as we could towards a 
 plurality system, and at the same time to save the 
 majority rule as far as we could upon the other. 
 We endeavored to bring this matter to a close, 
 and labored as earnestly as we could to present a 
 system which should have little complexity, and 
 which should meet the opinions of all. What 
 ever we may do, I do not see how we are to be 
 accused of endeavoring to get the votes of the 
 people by false pretences, because that document 
 said originally that this plurality question was to 
 be settled in such a way as the Convention thought 
 best. That is what we are doing to-day. I say 
 to gentlemen who make such strong objection to 
 the adoption of this system, if they will have 
 the kindness to take my place and go into the 
 committee-room along with the other gentlemen 
 
108 
 
 ELECTIONS BY PLURALITY. 
 
 [60th day. 
 
 Monday,] 
 
 BUTLER HUBBARD HATHAWAY WALKER. 
 
 [July 18th. 
 
 who compose the Committee that presented this 
 plan, and make a better system, one that will 
 better bring together all these various views, I 
 shall be most happy to vote for their report ; but 
 until they can do that, I must stand by the Re 
 port which I have presented. I have no particu 
 lar pride of opinion about it. The only wish I 
 have is, that the matter may be settled, and that, 
 too, without delay. 
 
 The hour at which it was ordered that debate 
 should cease, in Committee of the "Whole, on the 
 subject of elections by plurality, having arrived, 
 the Committee proceeded to vote upon the pend 
 ing question, being the motion of the gentleman 
 from Plymouth, (Mr. Davis,) to amend the third 
 resolve, relative to the election of representatives, 
 so as to provide that they shall, in all cases, be 
 elected by a majority instead of on second trial by 
 plurality. A count being demanded, there were 
 ayes, 70 ; noes, 164. 
 
 So the amendment was rejected. 
 
 The question recurred on the amendment of 
 the gentleman from Cambridge, to strike out all 
 after the word " Resolved," and insert the fol 
 lowing : 
 
 That in all elections of representatives to the 
 general court, the person having the highest 
 number of votes shall be elected. 
 
 The question was taken, and it was, upon a 
 division ayes, 82 ; noes, 163 decided in the 
 negative. 
 
 So the amendment was rejected. 
 
 The question recurred on the motion of the 
 gentleman from Boston, (Mr. Schouler,) to strike 
 out all after the word "Resolved," and insert the 
 following : 
 
 That it is expedient to provide in the Consti 
 tution that in all elections for governor, lieuten 
 ant-governor, secretary, treasurer, auditor, and 
 attorney-general of the Commonwealth, the per 
 son having the highest number of votes shall be 
 deemed and taken to be elected. 
 
 Mr. HUBBARD, of Boston, proposed to 
 amend the pending amendment by inserting after 
 the words "lieutenant-governor" the word 
 " councillors." 
 
 Mr. SCHOULER accepted the amendment, as 
 a modification of his own. 
 
 Mr. GRAY. I will take the liberty of suggest 
 ing to my colleague, that councillors are provided 
 for in the next resolve. 
 
 Mr. HUBBARD. My object was to have two 
 chances to secure this provision. 
 
 The question was taken upon the amendment 
 of the gertleman from Boston, (Mr. Schouler,) 
 
 as modified, and, upon a division ayes, 85 ; 
 noes, 156 it was decided in the negative. 
 
 So the amendment was rejected. 
 
 Mr. HATHAWAY moved to strike out all 
 after the words "general court," and to insert 
 the following : " All county, district, city, and 
 town officers, shall be elected as shall by law be 
 provided." That, Mr. Hathaway remarked, will 
 leave the matter, so far as the election of these 
 officers is concerned, precisely as it now stands 
 under the present Constitution. 
 
 The amendment did not prevail. 
 
 Mr. CHURCHILL, of Milton, proposed to 
 amend the last resolve by striking out the word 
 " legislature," and inserting the words " governor, 
 by and with the advice and consent of the coun 
 cil." 
 
 The amendment did not prevail. 
 
 Mr. GARDNER, of Seekonk, moved a recon 
 sideration of the vote by which the Committee 
 rejected the amendment offered by the gentleman 
 from Plymouth. 
 
 Mr. DENTON, of Chelsea. I confess, Sir, 
 that I did not quite understand the amendment 
 of the gentleman from Plymouth. The gentle 
 man from Plymouth, in his explanation, did not 
 satisfy me that it would include 
 
 The CHAIRMAN. The Chair must remind 
 the gentleman that debate is not in order. 
 
 The motion to reconsider was rejected. 
 
 Mr. ADAMS, of Lowell, moved that the Com 
 mittee rise, and report the resolves to the Conven 
 tion, with the amendments proposed by the Com 
 mittee, with a recommendation that they be 
 adopted. 
 
 The motion was agreed to, and the Committee 
 accordingly rose, and the President having re 
 sumed the chair of 
 
 THE CONVENTION, 
 
 The chairman of the Committee of the Whole 
 reported the resolves and amendments, with a re 
 commendation that they do pass. 
 
 The question being on concurring in the amend 
 ments proposed by the Committee of the Whole. 
 
 Mr. WALKER, of North Brookfield. It is a 
 very unpleasant task to undertake to oppose what 
 has been settled in Committee of the Whole. 
 We have voted to report these resolves to the 
 Convention, but I cannot allow the question to 
 be taken without saying that I hope that is, that 
 I desire that the Report of the Committee will 
 not be accepted. The third resolve provides 
 that the representatives 
 
 The PRESIDENT. With the leave of the 
 gentleman, the Chair would suggest that the first 
 question is on concurring in the amendments 
 
60th day.] 
 
 ELECTIONS BY PLURALITY. 
 
 109 
 
 Monday, 
 
 SCHOULER. 
 
 [July 18th. 
 
 reported by the Committee, which are merely 
 verbal. 
 
 The amendments reported by the Committee of 
 the Whole, were concurred in. 
 
 Mr. SCHOULER moved the adoption of the 
 amendment which he had proposed in Commit 
 tee of the Whole. 
 
 Mr. SCHOULER, of Boston. I intend to 
 take up but very little time in the discussion of 
 this question, although it is one upon which I 
 have bestowed a great deal of thought, and one in 
 which I feel a great deal of interest. It appears 
 to me, notwithstanding the remarks of the gentle 
 man from Fitchburgh, (Mr. Wood,) that this 
 matter has not been discussed at that length 
 which its merits deserve. We did have, in the 
 early part of the session, a proposition about plu 
 rality in elections. The gentleman from Fall 
 River, (Mr. Hooper,) the chairman of the Com 
 mittee upon that subject, made a Report, which 
 was, as I understand, the unanimous Report of 
 the Committee, in favor of adopting the plurality 
 system in our elections. That question was dis 
 cussed in Committee of the Whole, but the vote 
 was so close that one moment we would carry it 
 one way, by one or two votes, and the next mo 
 ment a reconsideration would be moved, and then 
 it would go the other way. When the whole 
 matter was reported to the Convention, before we 
 could get to a vote upon it here, and before we 
 could call the yeas and nays, to see what was 
 the true state of feeling of the members of the 
 Convention in regard to the subject, it was taken 
 from our hands and sent to one of the committee- 
 rooms. We have got another proposition, re 
 ported by the gentleman from Lowell, (Mr. But 
 ler,) and what is it ? It gives up the whole prin 
 ciple contended for by gentlemen who oppose 
 the plurality system. I do not like to go into 
 matters outside of the particular subject now be 
 fore us ; but no one can look at that resolution, 
 and who knows the history of this Common 
 wealth, and fail to see, that there is something 
 behind all this thing, which is not explained in 
 the Report. What is the proposition ? It was 
 stated by the gentleman from Melrose, (Mr. 
 Gooch,) that we should elect our Senate and 
 House of Representatives by a plurality, but 
 should not elect any of the general officers by 
 that rule, and that they must be elected by a ma 
 jority. What is the effect of it ? It is to throw 
 the election of all these officers into the legisla 
 ture, where there would be finesse and caucus 
 ing employed, and there would be this man to 
 be weighed against the other, this office against 
 the other, and then comes the matter into the 
 legislature, and they are to vote upon it. How 
 
 are these officers to be elected ? By men who are 
 chosen by a plurality vote. You will not allow 
 the people to decide it in the first place ; you get 
 the election into the State House, where the leg 
 islature are to decide it for them. I think there 
 is no sense in this. The gentleman from Lowell, 
 (Mr. Butler,) speaks about this proposition being 
 a compromise ; but it is the most singular com 
 promise that I ever heard of in my life. It does 
 not compromise anything but principle, arid it 
 does compromise the principle of the majority, 
 and gives no satisfaction whatever to those who 
 are in favor of the plurality system. I should 
 like to have an explanation of this compromise 
 where it begins, and where it ends. It leaves all 
 the difficulty with which we have so often found 
 fault, precisely where we found it, and it leaves 
 us in this predicament : that we cannot organize 
 the legislature for seven, eight, or ten days, after 
 coming together, at an expense of seven or eight 
 thousand dollars every year. I ask the members 
 of this Convention, whether seven or eight thou 
 sand dollars a year are not worth saving ? and we 
 can save it by saying that the people shall decide, 
 instead of leaving it to a plurality legislature to 
 decide. I think this matter deserves some con 
 sideration. 
 
 If we are to elect at all by plurality, I go for 
 electing everything by plurality. We may elect 
 by a majority, if we have a mind so to do, but 
 what advantage are we to gain by it ? Where are 
 we to make any reform here, by which we are to 
 save one single cent of the people s money ? His 
 tory shows in the progress of commonwealths and 
 nations, that corruption does creep in, and it 
 seems to me, that this is a plan for the corruption 
 of offices, or rather for the corruption of those 
 who hold office. This is an entering wedge which 
 will bring about such a state of things. We may 
 just as well have no election by the people, and 
 give the legislature the right of electing in the 
 first instance, instead of going through this mere 
 sham, and having a vote taken which amounts to 
 nothing. As long as this majority principle for 
 the general officers is kept up, just so long there 
 will be no election by the people. In the state 
 of parties of this Commonwealth, as they now 
 exist, there will be no election by the people so 
 long as the majority principle is retained in the 
 Constitution ; but when you take that out of the 
 Constitution, then, in my judgment, there will 
 be elections by the majority of the people. It 
 does seem to me I do not make the charge, but 
 I cannot dismiss it from my mind that this pro 
 position is presented for the very purpose of 
 getting the election of these officers into the 
 legislature, where the offices might be sold and 
 
110 
 
 ELECTIONS BY PLURALITY. 
 
 [60th day. 
 
 Monday/ 
 
 SCHOULER WALKER. 
 
 [July 18th. 
 
 doled out, and where men could make bargains 
 in regard to them. I say that the people demand 
 no such thing, but quite a different thing. It 
 may be denied, but it appears upon the face of the 
 proposition. If I stood upon the other side of 
 the House, where I could address the eastern 
 gallery, which seems to vote down all these 
 propositions, I might, perhaps, be able to effect 
 more than I now shall do. I recollect a few years 
 ago, in this House, that there was a gentleman 
 from one of the western towns, who, although he 
 had the right in his case, always had the majority 
 against him. He stood right here, and when they 
 took the vote, he carried the fifth and sixth divi 
 sions unanimously, while the other side of the 
 House went against him. He thought he would 
 change his position, so he went to the other side 
 of the House, spoke there once, and then spoke in 
 the centre of the House, so that when they came 
 to take the question the next time, he carried his 
 point by the unanimous vote of the whole House. 
 [Laughter.] I do not say that we want to send 
 missionaries into either side of the House, but it 
 seems to me, when the gentleman from Lowell 
 speaks of this proposition being a compromise, 
 that it is time we should require some missionaries 
 to look into it and see whether it is a compromise 
 or not. 
 
 But, I do not wish to occupy the time of the 
 Convention. I suppose it is all settled ; and I 
 feel, and I have no doubt the minority feel all the 
 time, that there are certain measures which are put 
 in here, that, however much argument may be 
 presented on the one side, or the other, we are 
 always voted down. Perhaps it is on account of 
 strength, and perhaps it is on account of cau 
 cusing. But, I stand here on the Report made 
 by the majority of the legislature last year, calling 
 this Convention ; I stand here as a humble advo 
 cate of the plurality system ; and it was my hope, 
 that this Convention, when it came together, would 
 put that principle into the Constitution, or at 
 least, that they would take the majority principle 
 out of the Constitution, and leave the legislature 
 to decide as the wishes of the people should direct. 
 As it is now, we get nothing. We violate the 
 principle of the gentleman from North Brook- 
 field, and others who have advocated the majority 
 principle ; and those who have advocated the plu 
 rality principle, get nothing. While we asked 
 bread, we got a stone. It amounts to the same 
 thing ; it may be a brick. [Laughter.] But, as 
 the gentleman from Lowell may want a little 
 time to explain this compromise, I will conclude, 
 by asking for the yeas and nays, so that those 
 who have stood up for principle against expe 
 diency, and contended for the right all along, may 
 
 stand on the imperishable record, as having sus 
 tained the plurality system. 
 
 The yeas and nays were ordered. 
 
 Mr. WALKER, of North Brookfield. On a 
 previous occasion, I have given my views with 
 regard to the general principle in relation to the 
 plurality system, and I gave my views as entirely 
 adverse to that principle, believing it to be wrong, 
 and consequently that it could only be productive 
 of evil. When I saw the Report of this Com 
 mittee, I looked at it with great interest ; and, 
 supposing it was a compromise, I was disposed 
 to do everything I could, consistently, to meet 
 the exigency of the case. But, when I saw that 
 the third resolution provided that representatives 
 should be chosen by plurality after the first trial, 
 I was obliged to dissent from it entirely. It 
 seems to me there is no sound policy in this Re 
 port. Our towns are democracies. They meet 
 together, and they may try several times in a 
 day, for the election of a representative ; they 
 may even have forty trials, perhaps, between the 
 time when the meeting is called to elect represen 
 tatives, and the meeting of the legislature. So 
 that there seems to be no excuse that the power 
 to elect by a majority, shall not be preserved to 
 the towns. Shall we take it away ? The idea of 
 making one trial by majority, and then, if an 
 election is not made, to allow a plurality to elect, 
 I discard altogether. There is no statesmanship 
 and no principle in the thing. If we are to have 
 the plurality principle at all, let us have it at 
 once. Then the question will be met promptly. 
 By the present proposition, the several parties 
 would have to put up their respective candidates, 
 which some party would have at last, to with 
 draw ; and hence, if we adopt a plurality system 
 at all, I would much rather apply it in the first 
 place than in the second. 
 
 Sir, since I last spoke on this subject, I have 
 met a very intelligent gentleman from the State 
 of Ohio, who has resided there many years, and 
 he asked me the question, what we were going 
 to do with regard to the plurality principle in 
 this Commonwealth. I told him that it was pro 
 posed to adopt it. He says : " Do not take that 
 course, if you do you will have the same results 
 that we have had, namely : a general demorali 
 zation in political action. That is the conse 
 quence with us, and we deplore it. In all our 
 elections we find it difficult to get a good man to 
 stand as a candidate. For the moment we put 
 up a good man, there are a half a dozen other 
 men put up, some of whom are of disreputable 
 character," and, to use his own phrase, " the 
 meanest scamp is the most likely to be success 
 ful. Hence, intelligent and respectable men are 
 
60th day.] 
 
 ELECTIONS BY PLURALITY. 
 
 Ill 
 
 Monday,] 
 
 WALKER LORD. 
 
 [July 18th. 
 
 not willing to be put up, for the greater number 
 of men you have as candidates, the less is the 
 chance of the election of a good man." Such is 
 the operation of the system everywhere. 
 
 I saw, also, a few days since, a gentleman from 
 Alabama, who expressed great anxiety about our 
 abandoning the majority principle. " If you do 
 it," stiid he, " you will rue the day ; you will 
 cause a general demoralization in politics, as has 
 been the case in Alabama. We are always 
 troubled to get the first and best men to stand for 
 any office, for the reason that when they have to 
 run against many men, of indifferent character 
 and they know, that as a general rule, the man of 
 the most indifferent character is quite as likely to 
 be elected as any other they feel that it is a dis 
 grace to stand, and they will not do it. That is 
 the general result." 
 
 As to the election of officers in large cities, 
 there may be some reason for adopting this rule, 
 but when you come to towns, there is no excuse 
 for it at all. It must be merely on the ground 
 that we are unwilling to take the trouble. But 
 there is no difficulty in that ; the towns have only 
 to repeat their trials as long as they choose. It 
 has been said, and cannot be repeated too often, 
 that this is the great question of misrepresenta 
 tion, or non-representation, and there is a great 
 choice between them ; for it is much better not to 
 be represented than to be misrepresented. 
 
 We are about to provide a Constitution, which 
 will give a House of some four hundred members, 
 and that will be an objection against our Consti 
 tution ; and if we adopt this plurality system, it is 
 certain that that House will consist of nearly the 
 full number ; and that will make an additional 
 argument against the adoption of our Constitu 
 tion. On the other hand, if we provide that a 
 majority shall elect, then it will happen that 
 many towns will choose not to be misrepresented, 
 and they will adhere to their candidates and their 
 principles, and will not be represented in the 
 House. What will be the consequence? The 
 House will be reduced, perhaps, some fifty or a 
 hundred members. Now, I maintain, that it is 
 vastly more desirable to have such a result, than 
 to adopt the plurality rule and have the House 
 filled every year ; because the people will not be 
 any more represented under the plurality rule 
 than under the majority rule, even if many towns 
 are not represented. 
 
 Then there is another consideration with regard 
 to the basis of representation. By the plan which 
 we have adopted, if I understand it, eighteen 
 thousand less than one-third of the population of 
 the State, may choose a majority of seven in the 
 House of Representatives. Now, shall we re 
 
 duce that constituency still more by adopting the 
 plurality system ? We know that if the plurality 
 system is adopted, it is more than probable that 
 one- quarter of the population of the Common 
 wealth will choose a majority of the House of 
 Representatives. I would like to know if it is 
 right, if it is desirable ; I would like to know if 
 gentlemen suppose that it will be agreeable to the 
 people of Massachusetts. I do not believe it will. 
 Hence, it will be a strong argument against the 
 adoption of the Constitution. 
 
 Sir, if you could have the majority principle 
 retained, with regard to members of the legisla 
 ture, I would not make any opposition to this Re 
 port. I do not say I would be content with it, 
 for I would not be content with anything that I 
 do not think right ; but I would submit to it. 
 
 If it be in order, before taking my se.at, I would 
 move to strike out from the third resolution all 
 after the word " election," in the third line. I 
 do not wish to detain the Convention by farther 
 remarks, having discussed the plurality principle 
 at length on a previous occasion. 
 
 The PRESIDENT. It is not in order at this 
 time, as an amendment is pending to the first 
 resolve. 
 
 Mr. LORD, of Salem. If I understand the ar 
 gument of the gentleman from North Brookfield, it 
 is this : That in consequence of what he has heard 
 from a gentleman from Ohio, and from another 
 gentleman from Alabama, if the plurality system is 
 adopted, the same result will follow here that has 
 followed there. In Ohio, the meanest rascals get 
 chosen ; and in Alabama the most indifferent 
 people. Now, if I had such a judgment of the 
 people of Massachusetts, that there were more of 
 them who would vote for the meanest rascals 
 that could be thought of, than would vote for a 
 good man, I would try some method to curtail 
 their power ; and I am not surprised that the gen 
 tleman from North Brookfield wants to do so. 
 He cannot trust these people, because more of 
 them will be willing to vote for the meanest ras 
 cal, than for a good man. But, differing from 
 him, I believe the people are capable of self-gov 
 ernment, capable of selecting good men, and that 
 they will not pick out the meanest rascals. I be 
 lieve that they will not be demoralized ; that the 
 adoption of the plurality rule will not cause a 
 general demoralization ; but that those men will 
 be chosen whom the most of the people are in 
 favor of. I am quite as unwilling to say that the 
 people will select the most indifferent persons, as 
 to say they will select the meanest rascals. I do 
 not think they will take either course. I am 
 rather inclined to adopt the opinion of the gen 
 tleman who now represents Wilbraham, (Mr. 
 
112 
 
 ELECTIONS BY PLURALITY. 
 
 [60th day. 
 
 Monday,] 
 
 LORD. 
 
 [July 18th. 
 
 Hallett,) that the adoption of the plurality sys 
 tem will destroy the third party, and having de 
 stroyed the third party, and made but two parties, 
 I do not exactly understand how a person will be 
 elected without a majority. When you get down 
 to two parties, as the plurality principle brings it 
 down, it is simply a process for concentrating the 
 public mind upon an individual. Whoever sup 
 posed that the public mind uniformly fell upon 
 the particular person who was to be elected to the 
 office ? We know, Sir, that in the primary meet 
 ings, where a candidate is to be selected, there is 
 generally a great diversity of opinion ; and that 
 diversity of opinion is reconciled, and one person 
 is selected and agreed upon. The same thing 
 happens in all parties, and the number of candi 
 dates gets reduced, out of which the people are to 
 select. It is not the selection of an individual by 
 a majority of the people, because we know that a 
 majority of the people are in favor, individually, 
 of a particular individual ; but because, by the 
 political economy and political arrangement, there 
 has been a concentration upon certain members 
 who represent certain interests ; and out of those 
 numbers, one is to be selected. The plurality 
 principle simply reduces the number of candidates, 
 so that the public will be obliged to select one of 
 two, instead of selecting from three or four ; and 
 generally speaking, I put it as a matter of his 
 torical fact, where the plurality rule prevails, 
 there the candidate is elected by a majority of 
 voters. 
 
 As a general proposition, that is true. I think 
 there was an exception or two, perhaps, in the 
 case of an election of representatives to congress, 
 but they were merely exceptions. Take the coun 
 try through, and you will find that where the 
 plurality system prevails, no men get into office 
 so frequently without receiving a majority of votes, 
 as they do in Massachusetts where the majority 
 rule has prevailed. Then why talk about this be 
 ing an abandonment of the majority principle ? 
 It is one of the instrumentalities by which the 
 majority principle can be concentrated upon an 
 individual. It is developing, and bringing out, 
 and enforcing, the majority principle. Gentlemen 
 say here, with a flaunt, that we have got into new 
 company. Well, I want to know if, because men 
 have become convinced that they are wrong, and 
 have joined them, they must desert their old 
 ground. We have had gentlemen get up here 
 and say, this plurality system was always a good 
 democratic doctrine, and we were always in favor 
 of it. Do not these gentlemen know that de 
 mocracy is progressive, and that among other 
 things, they have compelled us, poor Whigs, to 
 abandon some of our \iews as obsolete ideas ? 
 
 And I am sorry, that so soon as the Whigs are 
 obliged to change their condition, that there is 
 another party that whips around and feels it glory 
 enough if they can be in opposition to these poor 
 Whigs. I have not heard any reason given by 
 those gentlemen who have all along advocated the 
 plurality system, why they should change now. 
 When we all seem to be coming to agree that it 
 is the true ground, all at once some gentlemen 
 say, because we have got new allies, we will, 
 therefore, abandon our old notions. That seems 
 to be all the argument there is. 
 
 Now, Sir, I desire to express only a very few 
 words upon this subject, having already devel 
 oped the principal thoughts which I rose to sug 
 gest, that the people of this Commonwealth will 
 be gratified at the device of such an instrumen 
 tality as shall concentrate the votes upon the 
 smallest number of candidates. There is not a 
 voter in this Commonwealth, who cannot see 
 clear through this proposition. 
 
 We may involve it in diplomacy here, if we 
 will, but every voter in the Commonwealth will 
 see and understand what these six large offices 
 are put into the legislature for. There is no gen 
 tleman in this House who cannot tell what it is 
 done for. I am a little at a loss to understand, I 
 confess, how we are to manage this matter. 
 There is a little inconvenience about the manner 
 of choosing our governor. We have already 
 almost unanimously voted, that we would choose 
 him by joint ballot, and here we say that we will 
 choose him by a concurrent vote. Sometime ago 
 so long ago that we have, perhaps, almost for 
 gotten it some time in month before last, the 
 Convention determined, that, whenever the peo 
 ple did not choose a governor, he should be 
 chosen by the legislature on joint ballot ; and 
 now we are to have it done by concurrent vote. 
 I have no objection to the two propositions ; I am 
 willing to have them both put there ; but, Sir, I 
 desire to have those gentlemen who charge me 
 with not confiding in the people, and who them 
 selves do confide in the people, I desire to have 
 them explain to me how it is that, under this 
 system, the people cannot be deprived of their 
 choice. For example, in this matter of governor, 
 we change from four to three ; one man has 
 eighty thousand votes, another has seventy thou 
 sand, and another fifteen thousand, and there is 
 no election. Now a majority of your House of 
 Representatives are chosen by one- third part of 
 the people, and you pretend that your governor 
 is a representative of the whole people. Well, 
 Sir, this majority of the House of Representa 
 tives, thus chosen by one- third part of the people, 
 can exclude the individual who had eighty thou- 
 
60th day.] 
 
 ELECTIONS BY PLURALITY. 
 
 113 
 
 Monday,] 
 
 LORD. 
 
 [July 18th. 
 
 sand votes, and send up to the Senate the one 
 with seventy thoxisand, and the one who had 
 fifteen thousand. This is giving the governor to 
 the people, and taking the House of Representa 
 tives from the towns doing it with a vengeance ! 
 I remember to have heard the argument in favor 
 of the distribution of power, that, inasmuch as 
 the people have the governor, the towns ought 
 to have the House ; but one-third of the people 
 of these towns voting thus, through a majority 
 of the House, say that the man who has eighty 
 thousand votes, shall not be governor, no matter 
 even if the Senate, who do represent the people, 
 want him. The popular majority may send to 
 the Senate a majority in favor of the individual 
 who has eighty thousand votes ; but the towns 
 send to the House a majority who are in favor of 
 the individual who has only fifteen thousand 
 votes ; and of these three candidates, the House 
 sends up to the Senate the seventy thousand man 
 and the fifteen thousand man, to let them take 
 their pick between them. I say, therefore, upon 
 this hypothesis, you have no popular representa 
 tion in the governor, you have no popular branch 
 in the government. Your House is from towns 
 your Senate is from districts, chosen by plural 
 ities ; and, as gentlemen say here, pluralities are 
 the same as minorities. Here the governor is 
 forced upon the Senate, by the House chosen by 
 the towns ; and yet you say that there are two 
 branches that represent the people, while the 
 House represents the towns. Sir, the poor people, 
 in this arrangement, fail of having any represen 
 tation anywhere, except as it comes from the 
 Senate. In this respect, as relates to the Senate, 
 I address my remarks to those gentlemen who say 
 that a plurality does not represent the people. I 
 am of the opinion that a plurality does represent 
 the people ; and therefore, the argument relating 
 to the Senate has no force in my mind, but it 
 has and must have force with those gentlemen 
 who say that the Senate is a representative of a 
 minority. 
 
 If, Sir, it is desirable to establish any rule as a 
 constitutional rule, it appears to me that the prin 
 ciple that the rule should be uniform, is so obvi 
 ous to every mind, that it gains no force from 
 argument or reasoning. We propose to say here, 
 that certain officers shall be chosen by a majority, 
 and certain other officers by a plurality. Has 
 any gentlemen told why that line is drawn in 
 that way r I have heard no reason given for it 
 I can see the reason for it every-body can see 
 the reason ; but has anybody avowed that reason ? 
 Has any gentleman told us why it is that the line 
 should be drawn as it is drawn ? why the gov 
 ernor, lieutenant-governor, secretary, treasurer, 
 
 8 3 
 
 auditor, and attorney- general of the Common 
 wealth, should be chosen by majorities, and all 
 other officers by a plurality ? Now, if we were 
 about to make a rule on the subject, and have 
 some officers elected by a majority and others by 
 a plurality, what rule would seem reasonable and 
 proper ? I believe that the universal opinion 
 would be in favor of a rule of this kind : that, in 
 proportion as it is difficult to obtain a second ex 
 pression of opinion from the same constituency, 
 just in such proportion is the necessity for the 
 adoption of the plurality principle. I would like 
 to hear anybody undertake to controvert that 
 proposition. I agree with the gentleman from 
 North Brookfield, (Mr. Walker,) that it is not 
 half so important for the town of Hull, which 
 can vote forty times, and perhaps four hundred 
 times a day I am inclined to think that they 
 could vote four hundred times between sunrise 
 and sunset ; but if they could not, Nahant could 
 it is not half so important for these little towns 
 to choose their representatives by the plurality 
 system, as it is that all the people of the Common 
 wealth should have a chance to choose their gov 
 ernor by the plurality system. The difficulty 
 is nothing, in comparison the inconvenience is 
 nothing, in comparison ; as the gentleman from 
 Boston said this morning, the whole Report is in 
 inverted order, and ought to be reversed or shifted 
 end for end. I am glad that I had the concur 
 rence of the gentleman from North Brookfield in 
 that respect ; the thing is exactly reversed, for in 
 those constituencies which cannot be called to 
 gether twice, you insist upon applying the major 
 ity principle; but in those constituencies which can 
 be called together twice, without any considerable 
 difficulty, you allow the election to take place by 
 the plurality principle. Why is this so ? It is 
 nothing in the name of State officers, because one 
 is a State and the others are local officers. I re 
 peat, Sir, that there is no individual in this assem 
 bly who does not see why it is so, and yet there 
 is no gentleman in this assembly who will tell 
 why it is so. Every-body knows what it is for, 
 and yet nobody will tell us what it is for. The 
 gentleman from Lowell, who reported this reso 
 lution, knows why the Committee made these 
 officers at large, through the State, to be elected 
 by majorities, in preference to ocal officers, and 
 yet I do not hear anybody say why. There is a 
 reason, Sir, and it is a reason that has no force 
 whatever with me in making fundamental law. 
 We know something about what the popular will 
 is those of us who are willing to confide in the 
 people and we know that the popular mind has 
 been for years demanding that the legislature 
 should so alter the law that a plurality should 
 
114 
 
 ELECTIONS BY PLURALITY. 
 
 [60th day. 
 
 Monday,] 
 
 LORD. 
 
 [July 18th. 
 
 elect. And we know, too, that the legislature 
 has gone a great ways, almost to the very verge of 
 constitutional right, in altering the law upon this 
 subject ; and they have never made a single ad 
 vance on this subject, which the people have not 
 approved. They have made representatives to 
 congress eligible by plurality on the second ballot ; 
 and has the first man in the Commonwealth sent 
 up a petition to the legislature to change that law 
 since ? Not one. The people of the Common 
 wealth approved of it. I do not know a single 
 individual who, this day, would wish to alter it. 
 I say, also, that the majority principle has never 
 been adopted by any people, or acted upon by any 
 people, where the counter proposition received a 
 respectable advocacy, for a single moment; or 
 where the plurality principle has been carried 
 into practice in a single election. 
 
 Are we then desirous of finding out what is the 
 popular will ? I do not care how much gentle 
 men charge me with change, or how much they 
 charge those with whom I am accustomed to act, 
 with change. The party that called this Conven 
 tion, called it upon the open and avowed ground, 
 that the plurality principle ought to be adopted 
 that we ought not to spend a week here in the 
 organization of the government, and in managing 
 and bargaining how the offices should be dis 
 tributed. It was I do not say the known but 
 it was the avowed object of those who called this 
 Convention, to prevent that great evil of the organ 
 ization of the government being delayed a whole 
 week. I have heard it said, here or somewhere, 
 that where there has been an abuse, that has lasted 
 for fifteen or twenty years, and some particular 
 individuals have got the benefit of that abuse, it 
 will not do to stop it until every-body else has 
 had a hand in it, and has had a chance to profit 
 by it in the same manner ; and then you can let 
 the abuse be reformed. Well, Sir, here you have 
 got a real abuse ; but it seems that we must not 
 touch it, until every-body has had the advantage 
 of it. Here is a real evil ; every-body knows and 
 feels it to be an evil, that the organization of this 
 government, where there is a distraction of senti 
 ment in the public mind, must be delayed a week 
 at the beginning of every year. It is an evil that 
 has been acknowledged, and those gentlemen who 
 reported in favor of calling this Convention, re 
 ported that it would be enough to pay all the 
 expense of this Convention, if we could save the 
 extraordinary spectacle, and the extraordinary 
 cost of the non-organization of this government 
 for an entire week every year. What has changed 
 the minds of gentlemen upon this subject ? If 
 ever I was in favor of the majority principle 
 and, I cannot remember that I ever was iflever 
 
 was in favor of that principle, these very delays, 
 and difficulties, and abuses, have long ago dis 
 abused my mind of the idea that a majority was 
 necessary. They say that a majority should 
 rule; but who rules under the majority prin 
 ciple ? Does a majority rule ? No, Sir ; never. 
 A little band, a factious minority, rule, and always 
 have ruled. How came that most excellent pre 
 siding officer, and much lamented man, to occupy 
 the chair which you now occupy in this House, 
 in that political year when the House was so 
 divided, that the candidate of one party received 
 just exactly as many votes as the candidate of 
 another, and a certain individual of my own 
 county, received one vote, and one vote only ? 
 The other two great parties gave exactly an equal 
 number, and that gentleman received one vote 
 only ; but he held that one vote until enough to 
 make a majority came to him ; and the majority 
 ruled, did they ? I say it is always so ; there is a 
 fallacy in this mode of argument that a majority 
 should rule. It is putting it into the power of a 
 small portion of the people, to defeat the whole 
 great bulk of the people ; that is the operation 
 of the majority system. Thus a very small pro 
 portion of the voters of this Commonwealth, can 
 throw these six offices, as articles of merchandise, 
 into the House of Representatives. I want to 
 keep them out of it. I do not believe in that phi 
 losophy at all, which we have heard here so many 
 times, that the gentleman who receives the smallest 
 number of the votes of the people, if he shall get 
 a majority of the votes of the House, and of the 
 Senate, will thus be a majority governor. That 
 is the sublimation of political mathematics, which 
 goes beyond my comprehension. A man who gets 
 less than one-third part of the votes, somehow 
 or other, comes up here, and goes, as they say, 
 into a most unequal House they always say it 
 has been very unequal which unequal House 
 has filled up the Senate full. We have a House 
 not representing the people at all ; and the man 
 who receives less than one-third part of the votes 
 is passed from the House to the Senate, and is 
 made, by some hocus pocus which I never could 
 exactly understand, a majority governor. I have 
 heard it assumed here a great many times, that 
 such a gentleman as that, is in reality elected by 
 a majority of the people. 
 
 I cannot understand that. I think that if the 
 majority of the people very particularly want a 
 man, they will be very apt to vote for him. Now 
 and then you may get a few voters, here and 
 there, who will vote contrary to their own notions 
 of what is right, of course it is not to be won 
 dered at that some few among the people should 
 do so, when we find the same thing done by gen- 
 
60th day.] 
 
 ELECTIONS BY PLURALITY. 
 
 115 
 
 Monday,] 
 
 FRENCH WILSON. 
 
 [July 18th. 
 
 tlemen in this Convention, and others, again, 
 vote as they are told to vote ; but the great ma 
 jority of the people vote as they please, with per 
 fect independence ; and when we introduce such 
 a system as to bring the people to vote in such a 
 manner as to get a majority vote upon any ques 
 tion, then we shall best advance the interests of 
 our constituents, and promote that public good 
 which we were sent here to accomplish. Any 
 thing to concentrate, as I said in the begin 
 ning 
 
 [Here the hammer fell.] 
 
 Mr. FRENCH, of Berkley. I have always 
 been in favor of the majority system, and I can 
 not, now, very well make up my mind to give it 
 up. I have an amendment, which I desire to 
 offer to the third resolution, which, I think, will 
 make it stand a little better. It is this : after the 
 word " ballot" insert the following : 
 
 But in case of the failure of election on such 
 ballot, then at a subsequent meeting, called for 
 that purpose, the person having the highest num 
 ber of votes shall be deemed and declared to be 
 elected. 
 
 The whole resolution, if thus amended, will 
 then read 
 
 The PRESIDENT. The amendment is not 
 in order at this time, but the gentleman from 
 Berkley will, no doubt, have an opportunity of 
 offering his amendment. 
 
 Mr. FRENCH. Then, if my amendment is 
 not in order, I suppose it is not in order to make 
 any remarks. 
 
 The PRESIDENT. The whole question is 
 open to debate on the first resolution. 
 
 Mr. WILSON, of Natick. It seems to me, 
 Mr. President, that it is rather too late to go into 
 a general discussion upon this question. Some 
 weeks ago this subject was discussed with great 
 ability for several days, and a vote was taken in 
 the largest Committee of the Whole that we have 
 yet had ; we had a larger vote than we have had 
 upon any question which has been taken during 
 the session. The judgment of the Convention 
 was : that for governor, lieutenant-governor, and 
 the other State officers, a majority should be re 
 quired ; that for members of the House of Repre 
 sentatives, and town officers, a majority should 
 be required. The judgment of the Convention 
 then was : that for senators, and county and dis 
 trict officers, a plurality only should be required 
 to elect. 
 
 Mr. SCHOULER. I wish to correct the gen 
 tleman. There has been no vote taken in the 
 Convention upon this question. 
 
 Mr. WILSON. The gentleman from Boston 
 
 is, I think, hypercritical. There was a vote taken 
 in Committee of the Whole, which I apprehend 
 is pretty much the same thing ; and I say that a 
 larger number of members were present, and 
 voted on these questions, than have been present 
 on any contested point during this session. I 
 believe that the vote stood 187 to 188. The 
 question was then recommitted to a Committee ; 
 and I understood that at that time it was gener 
 ally conceded, that the judgment of the Commit 
 tee was to stand as the judgment of the Conven 
 tion, for the reasons which were then given. 
 
 Now, Sir, I am in favor of a majority, out and 
 out. I adhere to that principle. I would accede, 
 however, to the plurality system in the election 
 of district and county officers, and senators, for 
 they must be elected by the people. I would 
 consent that it should stand as reported by the 
 Committee ; but, in regard to the election of rep 
 resentatives and town officers, I am opposed 
 altogether to the Report of the Committee. I do 
 not believe that it is expedient for the Committee 
 to pkce a provision in the Constitution author 
 izing our town officers to be chosen by a plural 
 ity. I doubt very much whether the people 
 themselves wish or desire it. 
 
 The gentleman from Boston, (Mr. Morey,) the 
 old political war-chief of the Whig party of the 
 State, came out to-day, and pressed upon us the 
 necessity of going for the plurality system, 
 although he says that he is in favor of a majority 
 system. They put it on the ground that the ad 
 dress put forth by the gentleman for Erving, 
 and other gentlemen of the legislature, in 1852, 
 represented this plurality system as one great 
 object to be achieved by the proposed Convention. 
 Now, Sir, it is common for gentlemen, in advocating 
 questions here, to say that the people are on their 
 side. I take it, that we do not know what the 
 judgment of the people is upon this question. I 
 can say that through the canvass of last year, the 
 political friends who acted with me did not advo 
 cate the plurality system. The press which sup 
 ported the political organization with which I act, 
 did not advocate the plurality system in support 
 ing the call for the Convention. On the contrary, 
 the thirty- six thousand men who gave their votes 
 for this Convention, in November last, were gen 
 erally opposed to the plurality system, and are so 
 to this day. I know the Democratic party gen 
 erally goes for the plurality system. Some of 
 them advocated it then, and many do so now. 
 They, however, are here to speak for themselves. 
 But as to the Whig party, all that we know of 
 their opinions is, that they went into their State 
 conventions, and denounced the Convention as an 
 untried and hazardous experiment ; got up at an 
 
116 
 
 ELECTIONS BY PLURALITY. 
 
 [60th day. 
 
 Monday,] 
 
 WILSON BRADBURY. 
 
 [July 18th. 
 
 expense of $250,000, to break down the Consti 
 tution of the Commonwealth, and to change those 
 great principles which had constituted the glory 
 and strength of the State ; that we were about 
 to strike at the independence of the judiciary, 
 and at everything which was great and glorious 
 in our past history. And more, Sir. My friend 
 from Boston, (Mr. Schouler,) who advocates the 
 plurality system, was one of the gentlemen who 
 signed the minority report denying the constitu 
 tionality of this Convention, although I will do 
 him the justice to say, that, on the floor of the 
 House of Representatives at the time, he said he 
 did not concur in that doctrine. 
 
 Now, in relation to this matter, I hope that 
 this Convention, if it is to take any portion of 
 this plurality doctrine, is to apply it where it is 
 absolutely necessary to apply it, and nowhere 
 else ; that we are to stand by the majority system 
 where we can get along well with that system. 
 It would be difficult to send back a State officer 
 to the people for reelection, and therefore, we 
 provide another mode of election. We provide 
 for the election of county and district officers, 
 and senators, by the plurality system. But, Sir, 
 the people of the towns can elect their town offi 
 cers and representatives ; and if necessary to do 
 so, they can meet from day to day in order to do 
 it. If there be any necessity for their having 
 representatives here, they can govern themselves 
 by that necessity. 
 
 If I had my wish, I would like to strike out 
 the third resolution, altogether, and substitute 
 the following in place of it : 
 
 Resolved, That the Constitution be so amended 
 as to provide that in all elections of representa 
 tives to the general court, when no election is 
 effected at the first trial, the meeting shall be 
 adjourned from time to time until the meeting of 
 the legislature for which the said representatives 
 are to be chosen : provided, that no one adjourn 
 ment shall be for a longer term than six days. 
 
 When it is in order, I propose to move that as 
 a substitute for the third resolution, and to strike 
 out the fourth resolution, altogether. 
 
 Mr. BRADBURY, of Newton. I do not 
 propose, Mr. President, to trespass upon the time 
 of the Convention, at any length. I have not 
 done so in regard to any of the great questions 
 which have been agitated before it ; but I wish 
 to say a word or two upon one point. The gen 
 tleman from Salem, (Mr. Lord,) has, in part, 
 anticipated what I intended to say. Gentlemen 
 who have looked through the whole history of 
 this question, will readily perceive Avhat I mean, 
 and the point which I wish them to consider. 
 
 The Report of the Committee on the basis for 
 
 the House of Representatives was presented to 
 this Convention, and defended by the chairman 
 of the Committee, upon the principle of checks 
 and balances, expressly and emphatically, basing 
 his comments on a text from De Tocqueville, in 
 which he proves that majorities are dangerous 
 that they might prove to be tyrannies, and there 
 fore, he contended for municipal representation 
 in order that they might be a check upon what ? 
 Why, Sir, upon popular representation. So he 
 then argued ; and those who followed him have 
 so argued throughout this whole debate, in favor 
 of the representation of municipalities, because 
 they say they want a check upon the masses in 
 the cities, and the Convention has justified the 
 arrangement on the ground of checks and 
 balances. Yes, Sir, it has been said over and over 
 again, that because the governor and Senate were 
 chosen by the people directly, and on the munici 
 pal principle, that therefore you were justified in 
 departing from that principle in regard to elec 
 tions for the lower House. Sir, when was this 
 argument presented ? It was after you had dis 
 cussed the question whether the supreme execu 
 tive and the highest officers of the State should 
 be chosen by a plurality or a majority, and had 
 taken it away from before the Convention with a 
 balance vote. And what is done in this Report ? 
 In case of the failure of the people to elect a 
 governor, you have what you suppose to be a 
 remedial process in the House of Representatives, 
 and yet you have defended the basis of that 
 House on the ground of a system of checks and 
 balances. Sir, to have been consistent with the 
 argument which has been taken as a groundwork 
 of the basis of the House of Representatives, you 
 should have given to the Senate jurisdiction in 
 case of the failure to elect on the part of the 
 people. Then you might have said that the 
 House of Representatives must be submitted to, 
 because it was an offset to the popular principle 
 implied in the other two departments of the gov 
 ernment. 
 
 If the Convention will allow me for a few mo 
 ments, I will quote what was said upon this floor 
 in defence of the town representation principle. 
 The gentleman for Erving, in his remarks on 
 this subject, read the following passage from De 
 Tocqueville : 
 
 "Unlimited power is in itself a bad and dan 
 gerous thing ; human beings are not competent 
 to exercise it with discretion, and God alone can 
 be omnipotent, because His wisdom and His jus 
 tice are always equal to His power. But no pow 
 er upon earth is so worthy of honor for itself, or 
 of reverential obedience to the rights which it 
 represents, that I would consent to admit its un 
 controlled, and all-predominant authority. When 
 
60th day.] 
 
 ELECTIONS BY PLURALITY. 
 
 117 
 
 Monday,] 
 
 BRADBURY. 
 
 [July 18th. 
 
 I see that the right, and the means of absolute 
 command are conferred upon a people or upon a 
 king, upon an aristocracy or a democracy, a mon 
 archy or a republic, I recognize the germ of ty 
 ranny, and I journey onward to a land of more 
 hopeful institutions." 
 
 That is the text. Now we have the comment 
 of the chairman of the Committee, which has 
 been carried out and amplified in a number of 
 lectures since. He proceeds : 
 
 " This great writer, who seems to have reflected 
 profoundly upon the workings of our institutions, 
 says, that it is not safe to put power into the 
 hands of an uncontrolled majority, in the sense 
 in which it would be if the district system pre 
 vails. You must have a system of checks for this 
 great majority of numbers. And this brings me 
 to my last reason in favor of this system, which 
 is the doctrine of checks and balances." 
 
 What is the proposition here ? Why, we pro 
 pose to elect the governor and council in single 
 districts, directly by the people. We propose also 
 to elect the Senate by the people, in single sena 
 torial districts ; and then we propose to elect the 
 House of Representatives by towns, varying the 
 system so far as towns are concerned, by basing 
 it, to a certain extent, upon population; and 
 these features, taken together, will, I apprehend, 
 make the most perfect system of checks and 
 balances that you can have. The people will be 
 represented in the Senate of Massachusetts, and 
 no measure can be passed or defeated in that body, 
 which a majority of the people either dislike or 
 approve. They will be potential in that branch 
 of the legislature, and as they elect the governor 
 directly, he will also represent the whole people. 
 There is the security for the people of the Com 
 monwealth. Then, if you base your House of 
 Representatives upon towns, mixing with it the 
 population basis, so far as it is practicable, you 
 will have, in one representative from each town, 
 a check upon centralization, and also a check up 
 on the other branches of the government, so that 
 it will be on the whole a very safe and practicable 
 system of government. 
 
 Sir, this has been the doctrine, in various forms, 
 advanced in this House, for the defence of the 
 right of town corporate representation, and as 
 justifying a departure from the popular principle. 
 
 And now we have here, a proposition before 
 us, which is almost certain to transfer, in a ma 
 jority of cases, the election of governor some 
 where else. And what has been done ? What 
 was required to be done, in good faith, after this 
 declaration of doctrine ? What was the duty of 
 a majority of this Convention, after holding forth 
 this doctrine ? Was it to send the election of 
 
 governor to the House of Representatives in the 
 first instance ? No, Sir. In consistency with 
 their principles, as declared here solemnly and 
 repeatedly, it was their duty to place the remedy 
 where the people would exert that remedy. But 
 what are the facts ? Why, we have, in the basis 
 of the House of Representatives, as wide a de 
 parture from the numerical principle, as the one 
 prepared and defended by the chairman of the 
 Committee, (Mr. Griswold,) when his remarks 
 were made, from which I have already quoted. 
 We have a basis which gives, in the beginning, 
 now, a majority of the House of Representatives 
 to one-third of the people of Massachusetts. You 
 have established, by adopting the proposition of 
 the gentleman from Lowell thirty minutes be 
 fore you -were stopped from saying a word upon 
 the subject, a principle which qualifies and moulds 
 the basis of the House of Representatives which 
 moulds, and shapes, and transforms it more than 
 any man in this Convention could tell, in the 
 time allowed him, unless he is a mathematician 
 beyond any precedent we have ever had. There 
 are gentlemen who probably did know it, but I 
 say to those who had not examined it, that no 
 man can tell what effect the proposition will pro 
 duce. What will it produce ? It does not alter 
 the House for the first ten years, but it allows 
 one-third of the people to hold a majority in the 
 House of Representatives. In 1860, according 
 to the ratio used in the pamphlet prepared by the 
 ex-secretary of state, the member from North 
 Brookfield, (Mr. Walker,) and which is a per 
 fectly safe ratio to use (I wish to say that here, 
 because it has been often said that the future is 
 all an uncertainty, but I do not so consider it, 
 for Massachusetts is an exception to the gener 
 al rule that ratios of increase diminish after a 
 state reaches a certain number of inhabitants. 
 Her ratio is an ascending one, and, therefore, the 
 report to which I have alluded is perfectly safe 
 upon which to base our calculations) in 1860, I 
 say, the growing towns will have more than their 
 specified number, by these tables, because their 
 increase will be by an increasing ratio. The 
 rule is, that after a state has grown to a certain 
 degree, its farther increase is by a descending 
 ratio ; but Massachusetts is an exception to that 
 rule. If that conclusion is right, one-third part 
 of the people of Massachusetts will make the 
 governor, if the people fail to elect him now. In 
 1860, one-quarter part of the people of the 
 Commonwealth will make the governor, if the 
 people fail to elect him. In 1870, one-fifth part 
 of the people will make him, if the people fail of 
 an election. 
 
 Well, Sir, we had an implied, if not an express 
 
118 
 
 AMENDMENTS TO THE CONSTITUTION. 
 
 [60th day. 
 
 Monday,] 
 
 HALLETT HALE. 
 
 [July 18th. 
 
 pledge, in the arguments of those who prepared 
 this basis, that there should be, in good faith, a 
 system of checks and balances ; but instead of 
 that, we have a system proposed which throws 
 away the rightful expectations of all, and throws 
 into the House of Hepresentatives the power to 
 make a governor when the people fail to elect 
 him. 
 
 Mr. OLIVER, of Lawrence. I move that the 
 Orders of the Day be laid upon the table. 
 
 The question was taken, and the motion was 
 agreed to. 
 
 Amendments to the Constitution. 
 
 Mr. HALLETT. There is a subject upon the 
 calendar which, I think, may be disposed of this 
 evening. It stands in the list of unfinished Jausi- 
 ness, and is document number seventy- five of 
 the Convention, relating to the subject of Amend 
 ments to the Constitution. I move that the Con 
 vention resolve itself into a Committee of the 
 Whole upon that subject. 
 
 The question was taken, and the motion was 
 agreed to. 
 
 The Convention accordingly resolved itself into 
 
 COMMITTEE OF THE WHOLE, 
 
 Mr. Wood, of Fitchburg, in the chair, and pro 
 ceeded to the consideration of the matter referred 
 to. 
 
 The CHAIRMAN stated the question which 
 was pending at the time the Convention was last 
 in Committee of the Whole upon the same subject, 
 to be the motion of the gentleman from Bridge- 
 water, (Mr. Hale,) to strike out the second resolve, 
 which is as follows : 
 
 Resolved, That it is expedient farther to pro 
 vide in the Constitution, that, whenever the 
 legislature shall fail to submit to the people, at 
 the periods designated in the foregoing resolve, 
 the question of calling a Convention for the pur 
 poses indicated therein, the qualified voters in 
 State elections, in the several cities and towns, 
 may, at the next general election thereafter, and 
 upon notice of such failure by the Secretary of 
 the Common wealth., whose duty it shall be to 
 issue such notice, proceed to vote upon said ques 
 tion as though it had been propounded by the 
 legislature ; and if, upon a return to the governor 
 and council, of the vote so given, it shall appear 
 that a majority have voted in favor of the propo 
 sition, the governor shall forthwith issue his 
 proclamation, calling upon the voters of said cities 
 and towns, at meetings legally warned for that 
 purpose, to elect delegates to such Convention ; 
 the time and place for holding its session, being 
 expressed therein. 
 
 Mr. HALLETT, for Wilbraham, proposed to 
 
 amend, by inserting the following as a substitute 
 for all the resolves : 
 
 Resolved, That it is expedient to provide in the 
 Constitution, that a Convention to revise or amend 
 this Constitution may be called and held in the 
 following manner : At the general election which 
 shall be in the year eighteen hundred and seventy 
 three, and in each twentieth year thereafter, the 
 qualified voters in State elections shall give in 
 their votes, to be received, counted, returned and 
 declared, in the same manner as by law is pro 
 vided in the choice of general officers at such elec 
 tion, upon the question : " Shall there be a Con 
 vention to revise the Constitution in conformity 
 to the provisions of the Act of 1852, chapter 188, 
 relating to the calling a Convention of Delegates 
 of the people for the purpose of revising the 
 Constitution ?" and if it shall appear, by the re 
 turns made, that a majority of the qualified voters 
 throughout the State, who shall assemble and 
 vote thereon, are in favor of such revision, the 
 same shall be deemed and taken to be the will of 
 the people of the Commonwealth, that a Conven 
 tion should meet accordingly ; and thereupon del 
 egates shall be chosen on the first Monday of 
 March next succeeding, and such delegates shall 
 meet in Convention in the State House on the 
 first Wednesday of May succeeding, in the same 
 manner and with the same authority as is provided 
 in the second, third, and fourth sections of said 
 Act. 
 
 The general court shall have power and author 
 ity in any year other than the year above specified, 
 to submit to the people the same proposition, to 
 be voted on in the same manner, at the next en 
 suing general election ; and if it shall appear by 
 the returns made, that a majority of the qualified 
 voters throughout the State, who shall assemble 
 and vote thereon, are in favor of such revision, 
 the same shall be deemed and taken to be the will 
 of the people of the Commonwealth, that a Con 
 vention should meet accordingly ; and thereupon 
 the same proceedings, with the same powers and 
 authority, shall be had, as is provided in the fore 
 going clause of this Constitution. 
 
 The foregoing provisions, shall in no wise re 
 strain or impair the reserved right of the people, 
 in their sovereign capacity, at all times, to reform, 
 alter, or totally change their Constitution and 
 frame of government. 
 
 The CHAIRMAN. The Chair is of opinion 
 that the motion of the gentleman from Bridge- 
 water, (Mr. Hale,) has precedence of the amend 
 ment of the gentleman for Wilbraham, (Mr. 
 Hallett,) and that the latter amendment will be 
 in order after the question shall have been taken 
 upon the first motion to strike out the second 
 section of the resolves. 
 
 Mr. HALE, of Bridgewater. The object I 
 desired to accomplish, when I made the motion 
 to strike out the second resolve, was explained at 
 the time. The motion made by the gentleman 
 for Wilbraham seems to be an entire new prop- 
 
60th day.] AMENDMENTS TO THE CONSTITUTION. 
 
 119 
 
 Monday,] 
 
 HALE HALLETT. 
 
 [July 18th. 
 
 osition, and one which seems to me to require 
 very grave consideration before it shall be adopted 
 by this Convention. By simply hearing it read, 
 it appears to me, that there are provisions there 
 which we should be very cautious about adopting, 
 and therefore, as the amendment proposed by the 
 gentleman for Wilbraham has not been printed, 
 and as the members of the Committee have had 
 no time or opportunity to examine its details, I 
 would suggest that the Committee now rise, re 
 port progress, and ask leave to sit again, in order 
 that the proposition of the gentleman for Wilbra 
 ham may, in the meantime, be printed. 
 
 The CHAIRMAN. The Chair would suggest 
 that if the gentleman from Bridgewater should 
 withdraw his own motion, then the motion 
 of the gentleman for Wilbraham will be in 
 order. 
 
 Mr. HALE, of Bridgewater. I do not wish to 
 withdraw my motion, until I know something 
 more about the amendment of the gentleman for 
 Wilbraham, and my object is to give the gentle 
 man time to have his amendment printed. 
 
 The CHAIRMAN. Did the Chair understand 
 the gentleman to move that the Committee rise, 
 report progress, and ask leave to sit again ? 
 
 Mr. HALE. I made that motion. 
 
 Mr. HALLETT. I think there is no difficulty 
 in the Committee s understanding this proposition 
 now. My proposition does not essentially vary 
 the import of the Report of the Committee as 
 contained in the second resolve. It is only in 
 tended to carry out the intention of that Report, as 
 I think, more definitely and distinctly. I hope, 
 therefore, as the gentleman from Bridgewater 
 desires it, that the question will be taken upon his 
 motion, and then we can proceed to the discussion 
 of this amendment, and we have time to explain 
 and understand it ; and if I can have time for a 
 brief explanation, there is no necessity for hav 
 ing it printed. 
 
 Mr. HALE. It seems to me that the propo 
 sition of the gentleman for Wilbraham is to in 
 corporate into the Constitution the details of the 
 Act of 1852, concerning which there is so much 
 difference of opinion in this Convention, and out 
 of it ; and I, for one, am not willing, with so 
 much haste, to incorporate it into the Constitution, 
 and I think we had better take time to examine 
 and look into it. 
 
 The question was then taken upon the motion of 
 Mr. Hale, that the Committee rise, report pro 
 gress, and ask leave to sit again ; and it was de 
 cided in the negative yeas, 28 ; noes, 76. 
 
 So the Committee refused to rise. 
 
 The question was then taken upon the motion 
 of the gentleman from Bridgewater, (Mr. Hale,) 
 
 to strike out the second resolve, and it was decided 
 in the affirmative. 
 
 So the second resolve was stricken out. 
 
 Mr. HALLETT then renewed his motion to 
 amend, by substituting the proposition which 
 he had submitted for the resolves reported by the 
 Committee. 
 
 Mr. HALLETT. I desire very briefly to ex 
 plain the proposition I have just offered. In all 
 its leading characteristics, it conforms to the Re 
 port of the Committee, except that it does not put 
 the Convention in the power of the legislature. 
 It provides with more caution, as I think, for car 
 rying out the object designed by the Committee 
 in their Report. That Report embraces three dis 
 tinct propositions. 
 
 First, that periodical Conventions may be called 
 for revising the Constitution every twentieth year. 
 We desire that that shall be done by a law a 
 constitutional and fundamental law which shall 
 execute itself, so that the people hereafter shall 
 have no occasion to be dependent upon the leg 
 islature for its action, and so as to avoid the pos 
 sibility of the people and the legislature coming in 
 conflict with each other upon the subject. 
 
 The second provision is, that the legislature shall 
 have power to submit a proposition for a Conven 
 tion to the people at other times than at these stated 
 periods. Many believe that under the present 
 Constitution, the legislature has not that power. 
 I believe it has not. We want now to place the 
 provision in a form which cannot be mistaken ; and 
 farther than that, when the legislature submits 
 such a proposition to the people, and it is adopt - 
 ted by the people, we want that it shall become 
 the will of the people, requiring no subsequent 
 action upon the part of the legislature, and sub 
 ject to no repeal by another legislature of different 
 party politics. 
 
 Thirdly, we desire, behind and beyond this, to 
 reserve to the people the right to alter and amend 
 their fundamental law, whenever they think prop 
 er, in the exercise of their sovereignty. 
 
 Now, Mr. Chairman, I believe there is no dele 
 gate to this Convention, holding the republican 
 doctrine of the right of the people to control their 
 own government, who will not say that these 
 propositions are right. The only question for us to 
 determine, then, is, does the proposed amendment 
 carry them into practical effect ? I have given 
 the subject a good deal of examination ; and more 
 than that, I have consulted with many members 
 of the Convention relative to this proposition, and 
 I think it will meet the enlightened and deliber 
 ate judgment of a majority of the Convention; I 
 am also happy to say that the proposition meets 
 the concurrence of the chairman of the Commit- 
 
120 
 
 AMENDMENTS TO THE CONSTITUTION. [60th day. 
 
 Monday, 
 
 HALLETT. 
 
 [July 18th. 
 
 tee (Mr. Nayson) which reported the resolutions 
 now under consideration. 
 
 Now, then, I will briefly refer to the details of 
 this proposition to see if it meets my object, and 
 the object which we all have in view. It is sub 
 stantially the same proposition as that embraced 
 in the Constitution of 1780, which provided for 
 calling a Convention in fifteen years after its 
 adoption. The only difficulty in relation to that 
 proposition was, that it required action upon the 
 part of the legislature to call the Convention and 
 prescribe its powers. It failed of its object be 
 cause, when the fifteen years had expired, the 
 legislature either took no action, or took such ac 
 tion that the Convention failed to be called. It 
 required a two-thirds vote, which defeats it of 
 course ; and ever since that failure, the people have 
 been taunted and told that when that Convention 
 failed to be called, they lost their right to amend 
 their Constitution in any other way except by 
 such amendments as the legislature chose, from 
 time to time, to submit to them. Hence, it is im 
 portant, in the new Constitution, to avoid that 
 difficulty which was met with in revising the 
 Constitution of 1780. And what is the provision 
 before us ? It declares that the question " Shall 
 there be a Convention ? " shall, in 1875, and in 
 every twentieth year thereafter, be voted upon by 
 the people, at the annual election, at which time the 
 qualified voters in State elections of the cities and 
 towns of the Commonwealth shall give in their 
 votes, to be received, returned, and declared in the 
 same manner as is by law provided in the elec 
 tion of general officers. 
 
 By this provision, it follows, if there are any 
 selectmen in towns, or any inspectors in cities, to 
 return votes, in short, if there is any law by which 
 votes are to be received in general elections by 
 which they are to be returned, counted, and de 
 clared, then that law applies to this mode of vot 
 ing upon the question, so that every citizen who 
 has the right to vote in State elections, may go 
 into the town meeting, in every one of these 
 twentieth years and deposit a vote upon the ques 
 tion yea or nay. Of course, these votes of 
 " Convention," or " No Convention," will be 
 provided, if there is any call for them, and every 
 voter may give in his vote, yea or nay. If a ma 
 jority of the votes in the Commonwealth are in 
 favor of a Convention to revise the Constitution, 
 after the manner of the act of 1852, then that shall 
 be construed as the will of the people. The Act 
 of 1852, has in fact, become the uniform mode of 
 holding Conventions. It is the same as that of 
 1820, by which the Convention of 1820 was called. 
 These acts embody all necessary details, and are 
 generally understood and approved of, so far as 
 
 the direct act of calling and holding a Convention 
 is concerned. They are almost verbatim the same, 
 and it has become almost a common law mode of 
 proceeding, by which Conventions shall be called. 
 Then, if the majority of the people say "Yes," 
 what follows ? Why, this Act shall be taken to 
 be the will of the people, and the Convention shall 
 be called accordingly. And thereupon the people 
 will proceed, on the first Monday in March follow 
 ing, under the forms of law governing elections, 
 in all the towns, to choose delegates to represent 
 them in a Constitutional Convention. You require 
 no action upon the part of the legislature, from 
 first to last. You have got your law here, which, 
 if accepted by the people, is to be the declared will 
 of the people, and must be carried into effect ac 
 cordingly. The selectmen in the towns, and the 
 inspectors in the cities, must call the meetings, or 
 be liable to penalties. They must receive the 
 votes for delegates, who are to be chosen to meet 
 at the State House, on the first Wednesday of 
 May, following. Thus you will have the whole 
 process and form of law for calling a Convention, 
 provided for in the Constitution, so that no act of 
 the legislature will be required to call it, and no 
 alteration or repeal can be made by any subse 
 quent legislature. I think, therefore, that this 
 provision is complete, so far as the holding of a 
 Convention every twenty years is concerned. 
 
 But, if the people do not desire to have a Con 
 vention, then the nays will have the majority 
 when the vote is taken upon the question. That 
 vote will btf proclaimed, and that will be the end 
 of it. I cannot see what other provisions are 
 needed for holding these periodical elections. The 
 Act of 1852 becomes a Convention law, just so far 
 as it is applicable to the year the Convention is 
 held. 
 
 The second proposition relates to the power of 
 the legislature for submitting the question of 
 calling a Convention at times other than at these 
 specified periods. I want that the legislature 
 should have express power to do it, and I want 
 that power should be put in the Constitution ; be 
 cause, I trust that hereafter we shall have no 
 powers exercised by the legislature which are not 
 in the Constitution. And what is this provision ? 
 It is that the general court shall have power and 
 authority in any year between these specified pe 
 riods, to submit the same question to the people, 
 to be voted on in the same manner, and the re 
 turns to be received and declared in the same 
 manner as is provided for in the case of the pe 
 riodical elections. And if a majority of the peo 
 ple are in favor of calling a Convention, the same 
 proceedings are to be had as are provided for in 
 the first clause of this amendment. 
 
60th day.] AMENDMENTS TO THE CONSTITUTION. 
 
 121 
 
 Monday,] 
 
 HALLETT. 
 
 [July 18th. 
 
 Now, what is the effect of that ? The legisla 
 ture at any time, may vote to submit the ques 
 tion to the people : " Shall a Convention be called 
 according to the Act of 1852 ? " The people vote 
 upon that question in the several cities and towns 
 these votes are returned, counted and declared, 
 and if there is a majority in favor of calling a 
 Convention, then the people proceed on the first 
 Monday in March to elect their delegates, who 
 shall assemble in the State House on the first 
 "Wednesday of May following, in the same man 
 ner and with the same powers as is provided in 
 the 2d, 3d and 4th sections of the Act of 1852. 
 No subsequent act upon the part of the legisla 
 ture is required, and no subsequent act can 
 change or defeat the expressed will of the people. 
 The legislature, simply by an act of theirs, sub 
 mit the question to the people, and if the people 
 vote, a majority of them, in favor of the Conven 
 tion, the matter is then beyond the control of the 
 legislature ; and no action of theirs can affect it. 
 I think these two propositions will cover, sub 
 stantially, any case that may arise, because if a 
 majority of the people want a Convention, they 
 will have a majority of delegates in the legisla 
 ture who will vote to submit the question to the 
 people. 
 
 But, still, there may an extreme case arise, 
 when the people will desire to call a Convention 
 outside of any provision upon the part of the 
 legislature. When more than the voters, the 
 whole community may claim to act. And this 
 third clause provides for that extremity. It is 
 an extreme case, and I can hardly see how it 
 could ever occur under our system of govern 
 ment. But still, if the legislature should come 
 to represent the minority of the people, they 
 might refuse to submit the question when a 
 majority of the people desired it, or the whole 
 people might demand a different basis for a Con 
 vention. But even in this case, if the people 
 could have a Convention once in twenty years, I 
 think they would sooner wait for the return of 
 the regular period, when the question must, as a 
 matter of necessity, be before them, than to 
 take the matter into their own hands. But then, 
 I want that they should have the right of amend 
 ing their Constitution at all times, without a 
 revolution ; and therefore it is proper to make a 
 provision which shall reserve to them that right, 
 which the Bill of Rights declares they should 
 have, to reform and alter their Constitution ; and 
 this is put in form, to prevent any construction 
 of the courts against that great popular right. 
 
 The whole proposition, taken together, guards 
 the process by which the people can act in enforc 
 ing that right without being dependent on the 
 
 legislature to move first, and thus it carries out 
 that view and enforces, in the most practical 
 manner that can be done in the Constitution, the 
 admirable doctrine which was laid down at a very 
 early period in this excellent work which I hold 
 in my hand, and from which I have read very 
 often in this Convention. It is a very remarkable 
 book. It was published in 1775, by Robert Bell, 
 of Philadelphia, under the direct patronage of 
 Washington, Franklin, Hancock, Jefferson, and 
 all the great revolutionary statesmen of that day, 
 for the purpose of imbuing the people of this 
 country with right opinions of constitutional 
 liberty. It is the very book that was quoted 
 from by Dr. John Warren when he delivered his 
 oration on the fourth of July, 1783, that being 
 the first fourth of July oration ever delivered in 
 Boston. The book is entitled " BURGH S POLITI 
 CAL DISQUISITIONS ;" and I must again ask the 
 attention of the Committee to one or two passages 
 which I quoted on a former occasion. He says, 
 p. 456, of vol. iii. : 
 
 " As the people ai e the fountain of power, and 
 object of government, so are they the last resource 
 when governors betray their trust. And hap 
 py is that people, who have originally so princi 
 pled their Constitution, they themselves can, 
 without violence to it, lay hold of its power, 
 wield it as they please, arid turn it, when neces 
 sary, against those to whom it was intrusted, and 
 who have exerted it to the prejudice of its original 
 proprietors." 
 
 Again, he says : 
 
 " In planning a government, by representation, 
 the people ought to provide against their own 
 annihilation. They ought to establish a regular 
 and constitutional method of acting, by and from 
 themselves, without, or even in opposition to 
 their representatives, if necessary ! " 
 
 Now, Sir, that is a lesson for us. It is precisely 
 the point to which I think these resolutions should 
 be carried, and embodied in the Constitution, so 
 as to enable the people to alter and amend their 
 Constitution without ever coming in conflict with 
 their own government, under any circumstances. 
 Such instances of conflict have occurred in other 
 States ; and it is known to this Convention, that 
 during the early period of its session, we were 
 told that the Convention was entirely at the mercy 
 of the legislature, which could, at any moment, 
 by repealing the Act under which it was called, 
 render its session unlawful. I therefore hope we 
 shall provide, in the new Constitution, against 
 any such possible emergencies, or conflicts, and 
 remove all the doubts and denials of the lawyers 
 as to how we are to collect the will of the people 
 
122 
 
 AMENDMENTS TO THE CONSTITUTION. 
 
 [60th day. 
 
 Monday,] 
 
 GILES. 
 
 [July 18th. 
 
 without the consent of the legislature. And we 
 should adopt this, not only as a great popular 
 measure, but also as a conservative measure, a 
 peaceful measure for reforms and changes in gov 
 ernment, by the popular will, without danger, 
 and without the necessity of resorting to physical 
 revolution. That is my sole purpose, and if it 
 can be secured in this mode, or in any other 
 which shall be found adequate to the purpose, I 
 shall be satisfied that the great and inherent will 
 of the people, which is now denied to them by 
 courts and lawyers, has been affirmed. 
 
 Mr. GILES, of Boston. I do not rise for the 
 purpose of opposing the amendment of the gen 
 tleman for Wilbraham, (Mr. Hallett,) because I 
 said the other day that I agreed with him in 
 reference to this subject. I have seen the amend 
 ment now before us, and the only objection I 
 have to it is its length and complexity, which I 
 fear will impede its adoption, if not defeat it 
 entirely. 
 
 The difficulty in incorporating a Convention 
 law into the Constitution is, that if it goes into 
 specific provisions, it is too long ; and more than 
 that, it undertakes to settle details which should 
 be left to posterity. I agree with the gentleman 
 for Wilbraham, and I believe he agrees with me, 
 that we do not wish to say in the Constitution 
 that it shall be constitutional to violate the Con 
 stitution ; nor do we wish to say that it shall be 
 legal to violate law. When a revolution comes, 
 basing itself upon the right of revolution, it will 
 declare itself, and needs no declaration from us 
 beforehand. What we wish is, to secure to the 
 people the right of amending their Constitution 
 whenever they see proper ; so that when they 
 declare their will to that end, no hostile legisla 
 ture shall ever have the power to come in and 
 baulk them in their purpose. And when I say 
 the will of the people, I mean that will legally 
 expressed. I mean the people in the legislature, 
 otherwise the people in the towns at one end of 
 the State might vote for one proposition, and 
 those at the other end for another, and their votes 
 would bind nobody. What I want is, the will 
 of the people in the legal sense ; that the popu 
 lar voice, constitutionally expressed, shall be con 
 sidered and recognized as obligatory. I want it 
 to have " free course, to run and be glorified ; " 
 I speak it with deference. 
 
 Now, I should be content with this first reso 
 lution. In fact, I should prefer the first resolu 
 tion, with an addition which I shall read for 
 information, and which, at a proper time, I pro 
 pose to offer. I shall be willing to strike out the 
 second and third resolutions entirely. The lan 
 guage of the first is a little objectionable, but I 
 
 take it the Committee on Revision, will take care 
 of that. I say, then, that I should rather prefer 
 the first resolution, with this addition : 
 
 And the right of the people at all times to 
 amend that constitution of government, by Con 
 vention or otherwise, according to their will, 
 legally expressed, shall never be restrained or 
 obstructed in this Commonwealth. 
 
 It seems to me that this will secure all that is 
 necessary for us to secure in the Constitution. 
 It will provide, that when the people have signi 
 fied their will, the legislature shall not obstruct 
 or restrain that will ; but on the contrary, that 
 they shall promote and assist in carrying it into 
 execution. So that, if the people have willed a 
 Convention, and in the mean time the State 
 House should burn down, it would be the duty 
 of the legislature, if in session, to provide an 
 other place for the meeting of the Convention. 
 Or if any other unforeseen event should inter 
 vene to render legislation necessary, the legisla 
 ture, if in session, should perform it with a view 
 to carry out the will of the people. I will go any 
 length to secure that object. If it should be 
 thought advisable to go farther than that first 
 resolution, with the addition I have indicated, 
 and have a Convention Act incorporated into the 
 Constitution, you must do one of two things : 
 You must either adopt, as a part of your resolu 
 tion, the Convention Act of 1852, which is the 
 same as that of 1819, and entail that for sub 
 stance and detail upon posterity, whether it will 
 suit or not, or you must depend upon the inter 
 vention of the legislature. 
 
 I have drawn up a Convention Act, which I 
 should prefer, if the Committee would go that 
 length, as a substitute for the one offered by my 
 friend for Wilbraham, (Mr. Hallett,) for the rea 
 son that, instead of calling upon the people to 
 vote whether they want a Convention, and then 
 to vote for delegates to that Convention, or de 
 pending upon future legislation, or incorporating 
 existing law into the Constitution, it will secure 
 a Convention once in twenty years. I will read 
 it for the information of the Committee, and as a 
 part of my remarks : 
 
 Resolved, That the qualified voters in State 
 elections, in the several cities and towns, shall, in 
 the year eighteen hundred and seventy-three, and 
 in each twentieth year thereafter, and as much 
 oftener as shall be required by law, elect Con 
 vention Delegates, in conformity with the law 
 then in force for the election of representatives ; 
 and the delegates so elected shall meet at the 
 State House on the first Wednesday of May next 
 after said election, and when organized, with not 
 less than one hundred members as a quorum for 
 
60th day.] AMENDMENTS TO THE CONSTITUTION. 
 
 123 
 
 Monday,] 
 
 CHURCHILL WILSON ASPINWALL. 
 
 [July 18th. 
 
 the transaction of business, may consider, and 
 adopt, and submit to the people for their ratifica 
 tion, such amendments of the Constitution, as 
 shall be deemed best ; and the right of the people, 
 at all times, to amend their constitution of gov 
 ernment, by Convention, or otherwise, according 
 to their will legally expressed, shall never be 
 restrained or obstructed in this Commonwealth. 
 
 Mr. CHURCHILL, of Milton. I am op 
 posed to the proposition which has been submit 
 ted to us upon this subject, because I see no good 
 reason or sense in it. It seems to me it is an 
 attempt to foresee, for fifteen or twenty years, 
 when the people of this Commonwealth will need 
 and require a Convention to reform their Consti 
 tution, which we had better leave to the people 
 themselves. I contend that we should leave the 
 matter as it stands in the Bill of Rights, and upon 
 the precedent set in calling this Convention. The 
 Bill of Rights declares nearly all that the gentle 
 man from Boston, (Mr. Giles,) who has just 
 taken his seat, has embraced in his proposition, 
 and the precedent cited for calling this Conven 
 tion will enable the people hereafter, when they 
 desire a Convention, to demand of the legislature 
 that they shall pass an act for that purpose. It 
 seems to me that such a proposition as this is 
 nothing more or less than subjecting this subject 
 of calling a Convention to the decision of political 
 parties, and the party which is dissatisfied with 
 the operation of the Constitution, will be perpet 
 ually submitting a proposition for calling a fresh 
 Convention. I think the people hereafter will 
 be able to settle better than we can, when they 
 need a Convention ; and when they need it, they 
 have a precedent and Bill of Rights, to which they 
 can resort. 
 
 I move that the subject be indefinitely post 
 poned. 
 
 Mr. WILSON, of Natick. The proposition 
 made by the delegate for Wilbraham, (Mr. Hal- 
 lett,) is rather a lengthy one. 
 
 Mr. ASPINWALL, of Brookline. I rise to a 
 question of order. I suggest that there is not a 
 quorum present. 
 
 Mr. OTIS, of Sumner. I move that the Com 
 mittee rise, report progress, and ask leave to sit 
 again. 
 
 Mr. WILSON. I believe I have the floor. 
 
 The CHAIRMAN. The Chair understands 
 that the gentleman from Natick has the floor. 
 The gentleman from Brookline rises to a point of 
 order, but the Chair cannot see how that can be 
 properly made at the present time. Therefore, 
 the gentleman from Natick will proceed. 
 
 Mr. ASPINWALL. Will the Chair allow 
 me to suggest that the Committee cannot sit if 
 there is no quorum present ? 
 
 The CHAIRMAN. How are we to ascertain 
 that fact ? 
 
 Mr. ASPINWALL. By a count taken by the 
 moderators. That is the way it is done in the 
 House of Commons, or any other legislative body. 
 
 The CHAIRMAN. The Chair is of the opinion, 
 that while the gentleman from Natick is occupy 
 ing the floor, that a motion for a count is not in 
 order. 
 
 Mr. WILSON. It seems to me, Mr. Chair 
 man, very strange, that gentlemen who are daily 
 and hourly pressing upon the Convention the 
 importance of closing our labors here, should find 
 it convenient to themselves to be absent so much 
 of the time. Some of us are left here, however. 
 I suppose those who are here at this hour, are 
 governed by a sense of public duty in remaining ; 
 and, therefore, we had better proceed to do the 
 business before us. The proposition made by 
 the delegate for Wilbraham, (Mr. Hallott,) is a 
 lengthy one, and therefore \ve cannot fully com 
 prehend it, unless it be printed, and we have an 
 opportunity to examine it. The gentleman from 
 Boston, (Mr. Giles,) has already presented another 
 proposition. It seems to me, that a plain, clear, 
 and distinct proposition, can be prepared, and 
 incorporated into our amended Constitution, pro 
 viding for future amendments. Some gentlemen 
 of the Convention think it unnecessary to have 
 any such proposition inserted in the Constitution. 
 I do not agree with these gentlemen, in that 
 respect. Some gentlemen think that such a pro 
 vision would be a limitation of the power of the 
 people. I do not so understand it. In the de 
 bate upon the Berlin case, the judgment of this 
 Convention was, that the people have a right to 
 amend their Constitution without going to the 
 legislature for authority so to do. Now, gentle 
 men propose to leave the Constitution, in this 
 respect, precisely and exactly where it is at pres 
 ent. We know that nearly all the eminent law 
 yers of Massachusetts, believe that we are sitting 
 here without any constitutional authority that 
 this Convention is an unconstitutional body. My 
 friend for Manchester, (Mr. Dana,) shakes his 
 head, but does he not know that in the canvass 
 of 1851, that, for party purposes, the judgment 
 of the learned and distinguished gentleman from 
 Cambridge, (Mr. Greenleaf,) and professor in the 
 law school, who addressed the Convention the 
 other day, was taken as an opinion, and that he 
 declared the call for a Constitutional Convention 
 was not constitutional ? Another eminent law 
 yer of Boston, Mr. Charles G. Loring, a man 
 whose opinions upon legal subjects are not sur 
 passed by any other man, perhaps, in Massachu 
 setts, gave it as his deliberate opinion, that the 
 
124 
 
 AMENDMENTS TO THE CONSTITUTION. [60th day. 
 
 Monday,] 
 
 WILSON. 
 
 [July 18th. 
 
 Act of the legislature calling this Convention, was 
 an unconstitutional Act. The present governor 
 of Massachusetts, in his address to the legislature, 
 declared that Act to he of douhtful constitution 
 ality. I know that some members of the exist 
 ing supreme court, have expressed the opinion 
 that the Act is unconstitutional. I know that 
 Ex-Judge Wilde, who was for thirty years and 
 upwards a member of the supreme court, has 
 expressed that same opinion. And I say that 
 four- fifths of the eminent Whig lawyers of Mas 
 sachusetts, believe to-day, that we are sitting here 
 in a body not called in accordance with the Con 
 stitution of Massachusetts. It was just so in 
 1820. The eminent legal gentlemen of that day 
 denied the constitutionality of that Convention. 
 I believe Judge Parker charged the grand jury 
 upon the subject of that Convention. In the 
 Convention of New York, held in 1821, Mr. 
 Tallmadge, a leading man of that day in that 
 Convention, declared that body to be unconstitu 
 tional. This question of the sovereignty of the 
 people of this country, of their right to call Con 
 stitutional Conventions, from the origin of the 
 government to the present time, has been denied 
 by many eminent lawyers who have been called 
 statesmen. The right of the people to call Consti 
 tutional Conventions, whenever and wherever 
 they please, without the intervention of legislative 
 bodies, has never yet been fully accepted by many 
 of the eminent men of the legal profession of this 
 country men who borrow their ideas of our 
 institutions from England, instead of fully com 
 prehending the scope, genius, and spirit of our 
 institutions. I believe it to be the duty of this 
 Convention, to insert a provision in the Constitu 
 tion for calling future Conventions, so that the 
 people shall not depend upon the will of the 
 legislature, and so that no future professors of 
 Harvard University, no future judges of the su 
 preme court, no future governors of Massachu 
 setts, no future attorney- generals of Massachu 
 setts, shall ever doubt the constitutionality of a 
 Convention of the people of Massachusetts. In 
 my judgment, we should incorporate a provision 
 of that character into the Constitution, to give the 
 people an opportunity of holding Conventions 
 hereafter, without coming to the legislature and 
 asking leave to hold such Conventions. I main 
 tain, that the people of this State have a right to 
 order a Constitutional Convention, whether the 
 legislature give them that power or not. That is 
 the American doctrine upon this subject. When 
 the present provisions of the Constitution are so 
 interpreted, and interpreted too by learned men, 
 and whose opinions, in my judgment, lost us the 
 Convention in 1851, for these opinions of Pro- 
 
 essor Greenleaf, and Charles G. Loring, and 
 )ther eminent legal gentlemen, were spread broad 
 cast over the State, as election documents, I say 
 t is our duty to incorporate such a provision into 
 the Constitution, that hereafter the question of 
 he constitutionality of a Convention for revising 
 he Constitution, shall never be raised upon the 
 joil of Massachusetts by any lawyer or public 
 man. A provision of that character, can be 
 framed and adopted by this body. It does not 
 seem to me, that it should be a lengthy proposi 
 tion, and it may be brief and comprehensive. 
 Such a provision is incorporated in the Constitu 
 tions of nearly every State of the Union. Gen 
 tlemen tell us it is only a restriction upon the 
 rights of the people. Theoretically it may be so, 
 but practically it is not so. Therefore, I wish to 
 see a provision of that character incorporated into 
 the Constitution, and if this Convention adjourns 
 without doing that, I believe we shall be false to 
 our obligations here ; and you must expect, when 
 the question is hereafter raised, that you will 
 have professors at Cambridge consulted, and you 
 will have a committee of the Senate and House 
 of Representatives following the example of the 
 minority committee of 1852, who declared that 
 it was unconstitutional to have such a Conven 
 tion. I have not the report of that minority 
 committee before me, but they reported that the 
 Act calling such Convention was unconstitutional. 
 Such was the judgment of the great mass of the 
 Whig party of this State, declared before the 
 people in public assemblies, and declared through 
 the columns of the press. The Daily Advertiser, 
 and other leading journals of this city, advocated 
 the repeal of that Act, as an unconstitutional Act, 
 after the legislature came together, and after the 
 governor had declared it to be of doubtful consti 
 tutionality. The gentleman from Cambridge, 
 (Mr. Parker,) came into this Convention and 
 declared that he believed the Act was constitu 
 tional, but he thought that the legislature had a 
 right to repeal it, and turn us all out of doors. 
 I do not believe in this doctrine. I desire to see 
 placed in the Constitution a plain and clear pro 
 vision upon this subject. I do not wish to see 
 the legislature of this State amending the Consti 
 tution ; and I trust that that great work will be 
 left hereafter to the agents of the people, chosen 
 for that express purpose. 
 
 On motion of Mr. BREED, of Lynn, the Com 
 mittee rose, and the President having resumed the 
 chair of 
 
 THE CONVENTION, 
 
 The Committee, by their chairman, reported pro 
 gress, and obtained leave to sit again. 
 
61st day.] 
 
 COMPENSATION OF MEMBERS, &c. 
 
 125 
 
 Tuesday, 
 
 WILSON HOBBS GRISWOLD BRIGGS. 
 
 [July 19th. 
 
 On motion by Mr. WILSON, of Natick, the 
 propositions submitted by Messrs. Hallett and 
 Giles, as substitutes for the resolves reported by 
 the Committee on future amendments to the Con 
 stitution, were ordered to be printed. 
 
 The Convention then, on motion, at seven 
 o clock, adjourned until to-morrow morning, at 
 nine o clock. 
 
 TUESDAY, July 19, 1853. 
 
 The Convention met pursuant to adjournment. 
 
 Prayer by the Chaplain. 
 
 The Journal of yesterday was read. 
 
 Delegate from Concord. 
 
 Mr. HOBBS, of Weston, presented the cre 
 dentials of Mr. CHARLES C. HAZEWELL, elected a 
 delegate from Concord, in place of Mr. Gourgas, 
 deceased, which were received, and the delegate 
 took his seat. 
 
 Report from a Committee. 
 
 Mr. GRISWOLD, for Erring, from the Com 
 mittee on the House of Representatives, reported 
 that it was inexpedient to act upon the subject of 
 an order of May 25th, concerning the expediency 
 of providing that towns and districts may have 
 the right to be represented by any citizens of the 
 Commonwealth. 
 
 The Report was referred to the Committee of 
 the Whole, and ordered to be printed. 
 
 Compensation of Members. 
 
 The order submitted yesterday by Mr. Wil 
 son, of Natick, being the first item on the Orders 
 of the Day, was taken up for consideration. 
 
 It was read, as follows : 
 
 Ordered, That the Committee on the Pay Roll 
 be instructed to make up the same, including the 
 day of final adjournment, allowing to each mem 
 ber pay only for his actual attendance, except in 
 cases of sickness. 
 
 The question being on the adoption of the 
 order. 
 
 Mr. BRIGGS, of Pittsfield, said he would like 
 to be informed how the mover of this order in 
 tended that it should apply in the case of those 
 members who were absent a part of Saturday and 
 a part of Monday. He would like to hear the 
 gentleman explain what he means by a day s 
 attendance. I do not, continued Mr. Briggs, 
 intend to take up any time in talking about this 
 matter, but it does seem to me that the proposition 
 should not be adopted. 
 
 There is necessarily a very great inequality in 
 regard to the attendance of members here. The 
 record shows that about one-half of the members 
 of this Convention live at their own homes, and 
 that they go home each evening and have some 
 opportunity to attend to their business, while those 
 who live farther have not that privilege. Some 
 who live at a distance go home every Saturday 
 and return on Monday. If, then, such a rule as 
 this be stringently applied, it will cut off a large 
 part of the compensation of those w r ho are so 
 situated. It appears to me there should be a little 
 more liberality in matters of this kind. I speak 
 in behalf of those members who live away from 
 their homes as well as myself, and whose only op 
 portunity to go home is to take a part of Saturday 
 for that purpose, and a part of Monday to return. 
 So far as I am concerned, I shall have no hesitation 
 in putting down in my charge for attendance, 
 every day in the week, although I have been 
 absent on Saturday and Monday. I should have 
 no compunctions of conscience whatever on that 
 score, the more especially if those gentlemen who 
 go home every day, leaving this hall long before 
 the adjournment in the evening, are entitled, un 
 der this order, to make a charge for such days 
 attendance. I merely wish to be informed in 
 regard to this order what is to be its construction 
 in this respect. 
 
 Mr. WILSON, of Natick. I can only say, 
 Mr. President, that it appears to me that the 
 Convention ought to adopt some such rule as 
 this. I think that honesty and sound policy 
 alike demand its adoption. What are the 
 facts ? The record will show that from the com 
 mencement of the session to the present time 
 there have been at least a hundred members 
 absent each day ; one-fourth of the members of 
 this Convention have been daily absent. That is 
 about the average. Now, Sir, we have voted 
 ourselves three dollars a day. This is a large 
 increase over the pay of members of the legisla 
 ture, and if we are to draw our pay while we are 
 not here attending to our duties, twenty-five or 
 thirty thousand dollars will be taken out of the 
 public treasury, that have not been fairly earned. 
 The gentleman from Pittsfield may think it un 
 necessary to adopt a resolution of this character, 
 but I confess I view the matter differently. There 
 has been a similar rule in the legislature, but what 
 has been the action of gentlemen of the legislature, 
 during the past year ? I hold in my hand the 
 record of the pay of the members of the last legis 
 lature, taken from the books of the treasury office, 
 which shows that the last legislature must have 
 taken out of the public treasury twenty or twenty- 
 five thousand dollars that did not belong to them. 
 
12G 
 
 COMPENSATION OF MEMBERS. 
 
 [61st day. 
 
 Tuesday,] 
 
 WlLSOX SCHOULER HYDE. 
 
 [July 19th. 
 
 There were two hundred and eighty-seven mem 
 bers at least ; and from the pay roll it would 
 appear that there was an average attendance of 
 two hundred and eighty-four and a half, although 
 every one knows that there were eighty or ninety 
 members absent every day. Our record shows 
 that one-quarter and recently one-third of the 
 members of tlu s Convention have not attended 
 here daily. 
 
 Now I am one of those who believe, that the 
 sense of public justice should be stronger than 
 the instinct of public plunder. I am in favor of 
 having our pay while we are here, attending to 
 our duties ; and, while we are at home, attending 
 to our own private business, let us pay ourselves. 
 I have not, myself, been absent from the Conven 
 tion, for a single hour, from the time of its first 
 meeting until the present time. I have not been 
 at home, because I cannot go home, while the 
 Convention is in session, without absenting my 
 self from some one or more of its sittings. And 
 I feel it to be my duty to remain here, so long as 
 the public business remains to be done. I think 
 there is only one fair and honest way of dealing, 
 in making up the pay roll. It is that members 
 shall receive pay while attending to their duties, 
 and not while absent. What I wish, is, that the 
 Committee on the Pay lloll should see to it, that 
 a proper reduction is made for absences, and that 
 money be not paid where no service is rendered. 
 Mr. SCIIOULER, of Boston. I have nothing 
 to say in regard to this order, but I do wish to 
 correct au erroneous impression that may go 
 abroad, in regard to the last legislature taking 
 twenty- five or thirty thousand dollars out of the 
 public treasury which did not belong to them, as 
 would appear to be the case, according to the 
 testimony of the gentleman from Natick. It 
 appears he has been down to the office of the 
 Auditor, and found out that thirty thousand dol 
 lars have been taken out of the State treasury 
 by the members of the last legislature, without 
 any authority. 
 
 Mr. WILSON. Will the gentleman allow me 
 to explain ? 
 
 Mr. SCHOULER. Yes, Sir. I think it re 
 quires explanation. 
 
 Mr. WILSON. I wish to say to the gentle 
 man from Boston, that when he undertakes to 
 repeat a statement made by me, he ought at least 
 to state it correctly. What I said was this : that 
 in my judgment there were, as appeared by the 
 record, eighty or ninety members of the last leg 
 islature absent daily ; and, that being so, from 
 twenty to twenty- five thousand dollars must 
 have been drawn from the treasury by members 
 of that legislature, that had not been earned by 
 
 them. That is what I said, and I am ready to 
 stand by it. 
 
 Mr. SCHOULER. That is exactly what I 
 said, or intended to say, that accordirg to the 
 gentleman s statement, twenty or twenty- five 
 thousand dollars were taken out of the State 
 treasury wrongfully. Now I do not know how 
 it may be. I presume the figures of the gentle 
 man are right, in regard to the attendance of 
 members of the legislature. Every-body knows 
 that they have a rule in the legislature and there 
 is a similar rule here that every member shall 
 keep an account of his own time, and make re 
 turns of his attendance to the Committee on the 
 Pay Roll. And the custom has been, from time 
 immemorial, I believe, for members to return 
 quite as much time as the rule permitted, and 
 this practice has not been confined to members of 
 the last legislature. If the gentleman had only 
 pursued the investigation, he would have found, 
 that all legislatures, heretofore, have pursued the 
 same course. Members think they are entitled to 
 pay, whether here or not. I will state for my 
 self, that I never did take a day s pay for a day 
 on which I did not attend ; but I am aware that 
 members who have been absent attending to their 
 own private business, and who have not been in 
 attendance in the legislature more than half the 
 time, have drawn more pay for the session than 
 I have, although I had been present every day 
 with the exception of two or three. I merely 
 rose to correct an erroneous impression, that 
 might naturally be entertained in view of the 
 representation of the gentleman from Natick, in 
 reference to the last legislature being culpable in 
 this matter, more than former ones. I do not 
 think there is any good grounds for making the 
 distinction. 
 
 Mr. WILSON. I did not mean, Sir, to speak 
 of the last legislature as being at all different from 
 those which preceded it. But I have only ex 
 amined in reference to that, and in my opinion 
 the legislatures of the last six years, have pur 
 sued about the same course. 
 
 Mr. SCIIOULER. That is what I want to 
 get at. I do not wish that the last legislature 
 should bear all the blame to which others are 
 equally liable. I think each member ought to 
 keep an account of his own time, and render a 
 correct account to the Committee. Therefore, I 
 see no necessity for this resolution. 
 
 Mr. HYDE, of Sturbridge. I think this reso 
 lution altogether unnecessary. Members will see 
 that the twenty- seventh rule prescribes that every 
 member shall keep an account of his own attend 
 ance and travel, and deliver the same to the Com 
 mittee appointed to make up the Pay Roll, and 
 
61st day.] 
 
 COMPENSATION OF MEMBERS. 
 
 127 
 
 Tuesday,] LIVERMORE RANTOUL WHEELER BUTLER EDWARDS WILSON. [July 19th. 
 
 on his failure so to do, he shall be omitted from 
 the pay roll ; and no member shall receive pay for 
 any weekday on which he has not actually at 
 tended, except in case of sickness. It seems to 
 rae, therefore, that this order is wholly unneces 
 sary ; and for the purpose of saving time, I move 
 that it be laid upon the table. 
 
 Mr. LIVERMORE. I will ask the gentleman 
 to withdraw his motion for a moment. 
 
 Mr. HYDE. To accommodate my friend from 
 Cambridge, I will withdraw it. 
 
 Mr. LIVERMORE. I came in just as my 
 friend from Xatick was administering either some 
 advice, or a rebuke, to the Committee on the Pay 
 Roll. I do not know why. I heard only the 
 conclusion of his remarks, wherein he said he 
 hoped the Committee would see to it that no 
 member was paid for any day that he is not in 
 attendance. Now, I do not know how the Com 
 mittee on the Pay Roll is to know when every 
 member is here, and when not here. Are they to 
 go round and find out who are absent, and keep 
 a record of the absentees ? The Committee on 
 the Pay Roll have agreed to send to each member 
 a certificate to be signed by him, stating the time 
 of his attendance and travel, in accordance with 
 the rule that has just been read. Now, I do not 
 know what more the Committee can do ; they are 
 not the keepers of the consciences of members of 
 the Convention ; and if gentlemen see proper to 
 send in a false certificate, it is a matter which 
 rests wholly with themselves, though I trust no 
 such imputation will be made. I will add, that 
 the Committee have decided not to insert any 
 name upon the pay roll, unless accompanied by a 
 certificate, signed by the member. I believe this 
 has always been the custom. 
 
 Mr. RANTOUL, of Beverly. The gentleman 
 from Boston has stated that the custom has been, 
 from time immemorial, that members of the leg 
 islature charge for attendance when they are not 
 actually in attendance. I must take the liberty 
 of differing from the gentleman, and saying that 
 within the memory of man, the custom has been 
 different. I have had some experience in the 
 legislature, upwards of twenty years ago, and I 
 recollect very well that the custom then was, to 
 make a deduction from the pay of a member 
 when absent, attending to his own private busi 
 ness. The practice which the gentleman alludes 
 to, as having prevailed from time immemorial, 
 must certainly have grown up within the last 
 twenty years. 
 
 Mr. YVHEELER, of Lincoln. I will move to 
 amend the proposition of the gentleman from 
 Natick, so as to make it read, that members shall 
 certify their attendance, agreeably to the twenty- 
 
 seventh rule, under oath. I will remark, that I 
 made a similar proposition in the last legislature, 
 and I think it is one that it is very proper to 
 adopt. Members ought not to be paid for attend 
 ance when not here attending to the public busi 
 ness. 
 
 Mr. BUTLER, of Lowell. I wish simply to 
 say, Sir, that the gentleman from Lincoln states 
 the fact correctly, that he offered this proposition 
 in the last legislature ; and, Sir, I will add what 
 he omitted to inform us of, that we voted it down 
 almost unanimously. [A laugh.] 
 
 Mr. EDWARDS, of Southampton. I should 
 like to move to amend, so that every member 
 shall be obliged to state how many hours he has 
 been here on successive days. If the gentleman 
 will adopt that modification, and make ten hours 
 constitute a day s work, I shall be willing to go 
 for it. I have attended, each day, until the close 
 of the proceedings, but I have noticed that there 
 are gentlemen who, after five o clock, each day, 
 absent themselves. We cannot equalize the mat 
 ter. Some gentlemen have attended one hour, 
 and others have attended closely to business until 
 the close of the sessions each day. 
 
 Mr. WILSON. I wish to say, in regard to 
 the amendment proposed by the gentleman from 
 Lincoln, that I can see no necessity for its adop 
 tion ; on the contrary, I do not see how it can be 
 adopted, and carried out. I take it, that the 
 gentlemen who have not attended the sittings 
 of the Convention every day, will find it very 
 difficult to make up a statement of their at 
 tendance, under oath. They ought not to be 
 required to do anything of the kind. All that 
 can be expected of members of this Convention, 
 who have not been able to be here daily, is this : 
 that in making up their account, they should 
 endeavor to deal fairly and honestly with the 
 Commonwealth, and to deduct those days on 
 which they think, or have reason to know, that 
 they have been unable to attend here. Now, 
 the gentleman says we have a rule of that char 
 acter ; so we have, and have had during the last 
 six or eight years, but we have not acted up to it. 
 It has not been at all operative. I do not know 
 that it will be of any avail if we pass this, but 
 we had better adopt it, nevertheless, and act up 
 to it, if we can. As to the rule in the legisla 
 ture, it is a mere matter of form. No attention 
 is paid to it. In 1841 and 1842, it was the 
 practice to deduct the time when absent. Nearly 
 all the members did it ; but, during the last seven 
 or eight years, it has grown into a practice to allow 
 for attendance when members are not here. Now, 
 Sir, I hope that the Convention will set the example 
 of dealing fairly and honestly with the Common- 
 
128 
 
 COMPENSATION OF MEMBERS. 
 
 [61st day. 
 
 Tuesday, 
 
 LlVEIlMORE BlUGOS WlLSON. 
 
 [July 19th. 
 
 wealth in this matter, and that, after voting three 
 dollars a day, to each member, we shall not take 
 out of the public treasury any more funds than 
 are required to remunerate members for actual 
 attendance. Here is a simple proposition, order 
 ing the Committee to make up the pay roll ac 
 cording to the rule we have adopted, and I see 
 no reason why it should be opposed. If it should 
 be opposed, and voted down, it will surely be 
 taken as an indication that we mean to pay our 
 selves for all the time, whether we have been 
 absent, or whether we have been in attendance. 
 
 Mr. LIVERMORE, of Cambridge, asked for 
 the reading of the order. 
 
 It was accordingly read, by the Secretary. 
 
 Mr. LIVERMOHE. It appears to me, Sir, 
 that there is an incongruity in the phraseology of 
 that order, for, as I understand it, it directs the 
 Committee on the Pay Roll to make up the Com 
 mittee on the Pay lloll. It strikes me, that that 
 Committee has been made up for some time, and 
 are ready to act. 
 
 Mr. BRIGGS. I do not see the necessity for 
 any such order as this. At the beginning of this 
 session, this Convention prescribed a rule by 
 which members have been drawing their pay for 
 attendance, and it seems to me, that it is only 
 necessary that the order should instruct the Com 
 mittee to make up the pay roll ; they will un 
 derstand how to do it. I should like to have the 
 sense of the Convention as to what we are to do 
 in this matter. I stated, when up before, that if 
 I occasionally went home on Saturday night, and 
 returned on Monday, I should feel authorized 
 and perfectly justified in putting those two days 
 into my account for attendance, and if it is not 
 right to do so, I should like to be so informed. 
 If those members of the Convention, from the 
 country, who come here and sit from nine o clock 
 in the morning until the hour of adjournment, 
 day after day, making a quorum, when other gen 
 tlemen see fit to absent themselves, receiving pay 
 for full attendance, I want to know if, when 
 others run home on Saturday night and return on 
 Monday morning, they are to have their allowance 
 for attendance on those two days stricken out, 
 while other gentlemen go home every night, leav 
 ing the Convention long before the hour of ad 
 journment, and are absent from the session of 
 the body three times as long as those who go 
 home on Saturday, and return on Monday? I 
 say, I should like the instruction of the Conven 
 tion in regard to this question. 
 
 As to the matter of swearing, I have not 
 sworn as yet, and I hope I shall not be com 
 pelled, at this late period of the session, to 
 swear as our army did in Flanders. I desire, 
 
 in good faith, to know how I am to act in this 
 matter. 
 
 Mr. WILSON. I supposed it would be a very 
 plain case, and one to be easily comprehended, 
 that every gentleman, under this rule, will be 
 allowed to make up his accounts according to his 
 own judgment, and what he thinks is fair, hon 
 est and proper; and that there would be no 
 trouble in the matter. I see no necessity for any 
 objection being made to the passage of the order 
 by my friend, on that account. 
 
 Mr. BRIGGS. Well, as an experienced man 
 in this matter, I should like to have my friend 
 from Natick say, whether he thinks I would be 
 doing right or wrong in claiming for attendance 
 on those days. I ask him in good faith, as I 
 know nothing about it from my own experience, 
 
 Mr. WILSON, of Natick. Mr. President: In 
 reply to the inquiries made by the gentleman 
 from Pittsfield, (Gov. Briggs,) I have to say, that 
 the order is plain and simple in its language; 
 that the gentleman from Pittsfield, and every 
 other member of the Convention, can readily 
 comprehend it. The member from Pittsfield, and 
 other members, in making up the number of days 
 attendance, must be guided by their own sense of 
 public duty. 
 
 It is true, Mr. President, that the rule explicitly 
 declares, that " No member shall receive pay for 
 any weekday on which he has not actually attended, 
 except in case of sickness." But, Sir, what does 
 the rule amount to ? It is practically a dead let 
 ter. It has been the rule of the House of Rep 
 resentatives for years, and it has been generally 
 evaded disregarded altogether. A few members 
 have acted up to its requirements ; but the mem 
 bers generally pay no regard to it, none whatever. 
 Sir, I venture to say, that with that rule before 
 them, the members of the last five legislatures, 
 have taken more than $100,000 out of the treas 
 ury never earned. Here to-day, on the floor 
 of this Convention, I make this declaration, and 
 no man here or elsewhere, can or will deny it. 
 
 Sir, I have been to the treasury department, 
 and I have procured a statement of the pay roll 
 of the last House of Representatives. That House 
 consisted of two hundred and eighty-seven mem 
 bers ; two hundred and forty-three of those 
 members drew pay for every day s attendance ; 
 leaving only forty-four members who made any 
 deduction for absent days. The average attend 
 ance during the session by the standard of the pay 
 roll was two hundred and eighty-four and one- 
 half daily, making only two and one-half absences 
 daily. Now, Sir, every man knows, Avho has any 
 knowledge of the last House of Representatives, 
 that the daily absences amounted, in that body 
 
61st day.] 
 
 COMPENSATION OF MEMBERS. 
 
 129 
 
 Tuesday,] 
 
 WILSON LORD. 
 
 [July 19th. 
 
 of two hundred and eighty-seven members, to 
 at least, eighty-seven members. I venture to say, 
 that the daily average attendance of the House 
 did not exceed two hundred members. Yet, if 
 we are to take the pay roll as the evidence of at 
 tendance, the actual daily attendance averaged 
 two hundred eigty-four and one-half. Is this 
 right ? Is it an evidence of public integrity ? Not 
 less than $20,000 were taken out of the public 
 treasury by the members of the last legislature, 
 which were never earned ; money taken out of 
 the public treasury, in violation of the rules of 
 the House ; rules made by the members for their 
 own government. 
 
 Mr. President : I wish to be distinctly under 
 stood. I do not mean to say, that the members 
 of the last House of Representatives were more 
 remiss in their attendance than were the members 
 of the legislatures of the two preceding years. 
 Neither do I wish to give the impression that they 
 took more money from the public treasury 
 which they had never earned than did the mem 
 bers of preceding legislatures. I have not taken 
 time to examine the pay rolls of those legislatures. 
 I take the last legislature as an example of the 
 loose way the accounts of members are now made 
 up. It is time to put a stop to this mode of 
 settling accounts to this manner of squandering 
 the public money. It is bad enough for members 
 to neglect the duties assigned them here, to at 
 tend to their own private affairs, without at the 
 same time drawing pay for services rendered not 
 to the public but to themselves. 
 
 This Convention, Mr. President, owes it to its 
 own reputation, to honesty, to a sense of public 
 duty, to enforce its own rule, which declares that 
 " .iYb member shall receive pay for any weekday on 
 which he has not actually attended, except for sick 
 ness." This Convention, called here to revise 
 the organic law of this old Puritan Common 
 wealth, should set to future legislatures, who are 
 to assemble under the revised Constitution, an ex 
 ample of inflexible integrity. The members of 
 this Convention should deduct the days they have 
 been absent, unless those days were days of sick 
 ness. 
 
 Sir, the adoption of this order will be deemed, 
 and taken, by the members, to be a declaration 
 that the members are required to obey the rule, 
 which requires them to deduct from their account 
 the days they have not attended. If this order is 
 not adopted, the members will take it to be the 
 sense of the Convention, that the rule is to be 
 considered in the Convention as it has been con 
 sidered in the legislature, a dead letter. I have 
 performed my duty, as a member of the Conven 
 tion, by proposing this order, which if adopted 
 
 and obeyed, will secure to the treasury, at least, 
 $25,000. There are four hundred and nineteen 
 members of the Convention. The average daily 
 attendence has not, I venture to say, and I have 
 some right to speak, for I have not been absent 
 half an hour during the session, exceeded three 
 hundred, making about one hundred and twenty 
 absences, daily. There should be deducted, at 
 least, $25,000 from the pay roll of the Conven 
 tion, for non-attendance. 
 
 Mr. President : We have voted tfe pay ourselves 
 three dollars per day. I gave my vote for that 
 resolve with a great deal of hesitation and reluc 
 tance. Gentlemen were called here during the 
 busiest portion of the year; called from their 
 farms and business avocations ; called here at a 
 pecuniary sacrifice. Compelled to work here from 
 six to nine hours, daily, in mid-summer, I felt 
 that those gentlemen who were here, away from 
 their homes, ought to have that sum, and I voted 
 for it against my own personal wishes and feelings. 
 Having voted for the liberal sum of three dollars 
 per day, I hope we shall all of us join in an ef 
 fort to require the pay roll to be made up so that 
 members will not draw from the treasury three 
 dollars per day to which they have no claim 
 which they are forbidden to touch by their own 
 rule, if enforced, as 1 hope it will be. 
 
 Mr. LOUD, of Salem. I desire to inquire as a 
 question of order, whether this resolution can be 
 entertained without a suspension of the rules. 
 The twenty- seventh rule provides that members 
 shall have pay for Sundays ; this order excludes 
 that and consequently is a violation of that stand 
 ing rule. I desire to know if such an order can 
 be entertained while the rule I have mentioned is 
 in force. 
 
 The PRESIDENT. The question suggested 
 by the gentleman from Salem is a question of 
 consistency. The gentleman may object to this 
 order as being inconsistent with the existing rule, 
 which fact, it will be for the Convention to deter 
 mine, and not for the Chair to decide. It is a 
 matter wholly within the province of the Conven 
 tion. 
 
 Mr. LORD. I had supposed that if it is pro 
 posed to do something that is contrary to what 
 our rules require, it would be the duty of the 
 President to decide how far it is permissible. 
 The rule requires members to certify their attend 
 ance, including Sundays ; this order requires that 
 that day shall be excepted. I do not believe it is 
 of any consequence, however, and I move to by 
 the whole subject upon the table. 
 
 The question was taken on agreeing to the 
 motion, and it was, upon a division ayes, 137 ; 
 noes, 44 decided in the affirmative. 
 
130 
 
 LIMITATION OF DEBATE. 
 
 [61st day. 
 
 Tuesday,] 
 
 KINSMAN STEVENSON ALLEN. 
 
 [July 19th. 
 
 Limitation of Debate. 
 
 The following order, submitted yesterday by 
 the gentleman from Medway, (Mr. Brown,) was 
 taken up for consideration : 
 
 Ordered, That no member, except the chairmen 
 of committees, shall speak upon any subject more 
 than fifteen minutes, without leave. 
 
 Mr. KINSMAN, of Newburyport. I see no 
 propriety, Mr. President, in passing such an order 
 as this, and I can conceive of no reason why a 
 distinction should be made between the chairmen 
 of committees and others. As every one knows, 
 there is a minority in this Convention, who have 
 to content themselves merely with the right to 
 speak and protest ; and though it is a poor privi 
 lege, especially on a subject of importance, it is 
 one they ought to enjoy, and which ought to be 
 secured to them. 
 
 Now, what does this order do. It deprives 
 them of the right of speaking more than fifteen 
 minutes, and gives the prevailing party, in addi 
 tion to the power they have already to control the 
 whole action of the Convention by their votes, 
 the right to occupy a whole hour in speaking, 
 because the chairmen of the committees, accord 
 ing to parliamentary usage, are always of the 
 predominant party. I do not make these remaiks 
 because I desire to speak, but it seems to me that 
 the effect of the order will be to abridge the right 
 which belongs to the minority to be heard, and 
 to debate all subjects fully, and that therefore it 
 ought not to pass. 
 
 Mr. ASPINWALL, of Brookline, moved to 
 strike out the words "except the chairmen of 
 committees." 
 
 Mr. STEVENSON, of Boston. I hope the 
 amendment will prevail, if the Convention have 
 any intention of passing such an order as this ; 
 but I am free to say that we shall hardly be able 
 to determine, at present, how many matters there 
 are on the Orders of the Day which will be affected 
 by the adoption of an order like this, which puts 
 it out of the power of those who are opposed to 
 the propositions to discuss them fully. If there 
 be, as I suppose, important questions to come 
 before the Convention for consideration, before 
 we can adjourn, it seems to me that it is highly 
 improper that we should adopt a rule which will 
 prevent them from being discussed, merely because 
 they necessarily come up late in the session. The 
 proposition is made, it is said, in accordance with 
 the practice that prevails in the legislature. Now 
 there is a clear and palpable distinction upon 
 which the propriety of such a rule in the legisla 
 ture may rest, but which can form no foundation 
 
 for it here. In the legislature, where high party 
 contests sometimes prevail, if an impression 
 arises in the mind of the majority that the mi 
 nority are endeavoring to create delay, the major 
 ity may be provoked to pass such a rule for their 
 protection ; and it would be justifiable, perhaps, 
 because if it be a private matter, you can say to 
 the individual interested, you should have come 
 earlier ; or if it be public matter, they may say 
 we shall be here six months hence, and no great 
 evil can result from the delay. But in an assem 
 bly constituted as this is, to recommend to the 
 people changes in the Constitution, neither of these 
 reasons can operate. 
 
 Then, in regard to giving an hour to chairmen 
 of committees, and limiting other members to a 
 less time, it appears to me that if such a rule is 
 to be made, it ought to be made in another direc 
 tion. The chairman of a committee has the ad 
 vantage of the prestige of the report. He has the 
 advantage of the views he has presented to the 
 Committee, and the concurrence of the Commit 
 tee, whereas those who come in opposition, stand 
 upon a new ground, and their reasons are surely 
 entitled to be heard. The rule ought, therefore, to 
 be the other way ; but I object to the adoption of 
 any rule that shall prevent any question being 
 debated ; and let me say to this Convention, 
 through you, that such a rule does not save one 
 moment of time. The true way to insure a short 
 debate on any subject, in Committee of the 
 Whole, is to allow those who have examined the 
 subject to discuss it thoroughly, otherwise each 
 suggestion calls up members in every part of the 
 House ; and every suggestion which carries with 
 it indications of justice and propriety costs abso 
 lutely more time in an assembly composed of 
 over four hundred delegates than would be the case 
 in the absence of such a rule. I hope the order will 
 be rejected ; but if it is to be adopted, I trust that 
 the amendment proposed by the gentleman from 
 Brookline will first be made. 
 
 Mr. ALLEN, of Worcester. I hope the 
 amendment will not be adopted, for I like the 
 exception better than the rule. If the Commit 
 tee make a report recommending an amendment 
 to the Constitution, it is necessary to make such 
 explanation of the report as cannot be done in 
 fifteen minutes ; and I believe it is according to 
 the practice of parliamentary bodies elsewhere to 
 allow the chairman of the Committee an oppor 
 tunity to explain the report; but I doubt the 
 expediency of adopting the rule at all. I think 
 the limitation to one hour, with a right on the 
 part of the chairman to close the debate, is strin 
 gent enough. I therefore move that the order 
 be laid upon the table. 
 
61st day.] 
 
 ELECTIONS BY PLURALITY, &c. 
 
 131 
 
 Tuesday,] 
 
 BRIGGS ADAMS UPTOK DURGIN. 
 
 [July 19th. 
 
 The motion was agreed to, and the order was 
 accordingly laid upon the table. 
 
 Sectarian Softools. 
 
 Mr. BKIGGS, of Pittsfield, moved to take 
 from the table the Report of the Committee in rela 
 tion to Sectarian Schools, with the view to its 
 being placed upon the Orders of the Day. 
 
 The question being taken on agreeing to the 
 motion, it was by ayes, 73 ; noes, 85 decided 
 in the negative. 
 
 Orders of the Day. 
 
 On motion of Mr. ADAMS, of Lowell, the 
 Convention proceeded to the consideration of the 
 Orders of the Day. The first matter on the 
 Orders of the Day was the resolves on subject of 
 
 Elections by Plurality, 
 
 On their second reading, the question being on 
 their final passage ; pending this question the gen 
 tleman from Boston, (Mr. Schouler,) had moved 
 to amend the first resolution, by striking out all 
 after the word "Resolved," and inserting the 
 following : 
 
 That it is expedient to provide in the Consti 
 tution that in the election of governor, lieutenant- 
 governor, secretary, treasurer, auditor, attorney- 
 general and councillors, the person having the 
 largest number of votes shall be deemed to be 
 elected. 
 
 Mr. UPTON, of Boston. Is an amendment 
 still in order. 
 
 The PRESIDENT. It is in order. 
 
 Mr. UPTON. Then I move to strike out all 
 after the word " the " in the sixth line, and insert 
 the following : " individual having the highest 
 number of votes shall be declared to be elected." 
 
 Mr. President: In offering the amendment, I 
 had supposed that this Convention would agree 
 to the principle laid down in the first part of this 
 resolution, namely : " that is is expedient." I 
 hope gentlemen of the Convention will mark and 
 note the phraseology " that it is expedient to 
 provide in the Constitution that a majority of all 
 the votes given shall be necessary " to elect cer 
 tain officers. I agree to that expediency. It is 
 well to provide in the Constitution that it is expe 
 dient that these individual officers shall be elected 
 by a majority of the votes cast. But, Sir, it is also 
 expedient to provide something beyond that, if the 
 people do not see fit to elect these officers by a 
 majority of votes, and to do the next best thing. 
 Therefore, I propose to strike out the latter part 
 of this resolution, and put in the next best thing, 
 and that is : that the individual candidate having 
 
 the highest number of votes shall be declared 
 elected. It seems to me it is hardly worth while 
 to go into an argument. It is not enough to de 
 clare the expediency of the principle, that the in 
 dividual having the majority of votes shall be 
 elected. But we must go beyond that, as these 
 individuals voted for do not have a majority of 
 the votes cast, perhaps ; and therefore instead of 
 leaving the question to the minority of the people, 
 which most assuredly will be the case, when it 
 comes to the legislature, I propose, in the amend 
 ment which I have offered, that the person hav 
 ing the highest number of votes shall be declared 
 elected. I do not propose to go into a discussion 
 of the question of the majority and the plurality ; 
 but simply to state the grounds of the amend 
 ment, and to express the hope that it may meet 
 the approbation of the members of this Conven 
 tion. 
 
 Mr. DURGIN, of Wilmington. When this 
 subject was up before, I had the audacity to offer 
 a few remarks, and I have some of the same sort 
 left. I wish, on this occasion, to express freely 
 my feelings and my v.ews upon this subject. I 
 have seen no good reason for changing them from 
 that time to the present. In every age of the 
 world, Sir, when republics and independent gov 
 ernments have arisen, great men have been there, 
 and great men acted ; and these republics came 
 up, in despite and in defiance of monarchy of 
 every kind. While those great men, those guar 
 dian spirits, those master spirits of the storm 
 were there, those republics were safe. The same 
 was true of our government. When this repub 
 lic sprang up, there were great men and true 
 there, men that feared God and regarded the 
 interests of men not like the unjust judge that 
 feared not God nor regarded man but men wil 
 ling to sacrifice life, sacred honor, and fortune. 
 Perhaps these great men have fallen. 
 
 Then, what has been the tendency of the an 
 cient republics ? There was, and there is, a ten 
 dency in republics towards monarchy. If you 
 look for the ancient republics, where are they ? 
 They are not. They live only in history only 
 in song. And, if you look to modern republics 
 even, look to Mexico, look to the South American 
 republics, and what is the tendency to-day ? Are 
 they breathing, are they panting, are they striv 
 ing, as the heart of one man, for liberty, or is 
 there a tendency to monarchy ? Look at France, 
 with all her boasted liberty and her republican 
 ism ; that peaceful and bloodless conquest ; that 
 bloodless transit from monarchy to republican 
 ism, and where is France now ? Is it a republic ? 
 I say there is a tendency in republics to monar 
 chy. How did it happen, and how does it hap- 
 
132 
 
 ELECTIONS BY PLURALITY. 
 
 [61st day. 
 
 Tuesday,] 
 
 DURGIN. 
 
 [July 19th. 
 
 pen? Is it because the people come out en 
 masse, and assert their rights, and assert their 
 liberties, and take the responsibility of the gov 
 ernment upon their own shoulders take the 
 government into their own hands ? No, Sir ; but 
 this tendency arises from the fact, that the people 
 relinquish and yield, daily and unresistingly, that 
 which, in duty, they are bound before God, to 
 come out and to support. They yield it into the 
 hands of a few, and that few hand it down to a 
 still less number, and that less number may per 
 haps make the one man power in the nation. 
 Thus the tendency is going on, and every man 
 that has half an eye, that has half a thought, can 
 comprehend this fact. 
 
 But, Sir, let me say, that there is no absolute 
 and fatal necessity for this state of affairs. The 
 first cause of this tendency, is the removal of the 
 government from the people. While the people 
 hold the government in their hands, and while 
 they exercise its functions, this thing never can 
 take place ; but, when the government is re 
 moved from them, or when they surrender it, 
 then this is the legitimate tendency. The cutting 
 off of the participation of the people in the gov 
 ernment, is the first, and one of the fundamental 
 causes why this state of things ever exists in the 
 world; 
 
 The" second cause, is the want of knowledge on 
 the part of the people, of the principles of a free 
 government. You give to every individual citi 
 zen a knowledge of the great principles of a free 
 government, and there is no danger of a republic s 
 waning, or becoming a monarchy. How shall you 
 give to the people a knowledge of the great prin 
 ciples of a free government ? Throw the govern 
 ment upon their shoulders ; throw it into their 
 heads and hearts, and make the people respon 
 sible ; make them understand their rights ; school 
 them; educate them in these principles. And 
 how shall they be educated ? By withdrawing 
 the great principles of free government from 
 them ? No, Sir ; but by holding them up before 
 their understanding, and making the people feel 
 that government is for the people. 
 
 Again. The more widely the government is 
 diffused among the people, the farther it is from 
 monarchy. Let the people of any nation, the 
 whole mass of the people be responsible, and be 
 actors in the great principles of a free govern 
 ment, and a monarch will die ; he cannot 
 breathe ; there is no air which is congenial to his 
 existence. There is no food on which a monarch 
 can be sustained, none that shall give subsistence 
 and vitality, and he fails and dies. He moves not ; 
 he thinks not ; he feels not ; he is not there. 
 
 Again, let me say, the fewer the people who 
 
 participate in the government, the nearer that gov 
 ernment approaches to a monarchy or an aris 
 tocracy. I want this principle clearly understood, 
 that the fewer the people, the less the number of 
 those who participate in the government, and 
 have a voice in its concerns, the nearer that gov 
 ernment approaches to a minority, and by so 
 much it approaches to an aristocracy, both of 
 which are opposed to the great principles of true 
 republicanism, and true democracy. 
 
 Plurality, Sir, is something less than the peo 
 ple. Yes, I avow it. A mere plurality is not 
 the people in any correct republican sense of the 
 term, as used in a government like ours. I say, 
 that a plurality is something less than the people ; 
 it is not the voice of the people, it is but a voice 
 of a minority of the people. What are its ten 
 dencies ? You may undertake to convince me 
 that seven is not less than ten. Who will believe 
 it ? Who can admit it as a fact ? No one, unless 
 he is deprived of his senses. The legitimate, and 
 the only tendency of a plurality system, no matter 
 where it is adopted, or where it acts, whether in 
 Massachusetts, or Rhode Island, or in every State 
 in this federal republic, whether in America, or 
 in Europe, is to contract and narrow down the 
 powers of men, instead of extending them abroad 
 and diffusing life and vitality ; and the tendency 
 is constantly towards monarchy ; towards the one 
 man power, in spite of the very fates. Sir, look 
 at it. If you have a plurality to-day, you have 
 a less number to-morrow, and a less number next 
 year, and so on. Some good mathematician, 
 some individual skilled in algebra, or well skilled 
 in progression, perhaps, may tell if you give him 
 the data, how long it would be, before the one 
 man power would exist. Every man knows that 
 this is the legitimate tendency, if there is any 
 tendency at all. 
 
 Again. I say every man should be made to feel, 
 as far as possible, his responsibility in relation to 
 the government in such a country as ours. I am 
 opposed, therefore, to anything that will lessen a 
 man s responsibility in this government. I was 
 very much pleased with an order introduced by 
 the reverend gentleman from Boston, (Mr. Loth- 
 rop,) sometime since, making it penal to neglect 
 the discharge of duties towards the government, 
 and not to go out and vote and take a share of the 
 responsibility in this great government. Why, 
 Sir, I would no more neglect the government 
 than I would neglect my God. It is the duty of 
 every man in this republic to go up to the polls 
 and there show, by his voice and his vote, that he 
 feels his responsibility, and teach it to his sons, 
 and his sons sons, and teach it to the rising gen 
 eration that they are to take the responsibility of 
 
61st day.] 
 
 ELECTIONS BY PLURALITY. 
 
 133 
 
 Tuesday,] 
 
 DTJRGIN. 
 
 [July 19th. 
 
 this great government upon themselves. The 
 individual who looks at the specific and legitimate 
 tendencies of curtailing and checking this respon 
 sibility upon the rising generation, though he may 
 not feel it in his heart, is virtually an enemy to 
 his country, an enemy to his God. These are my 
 convictions, and these are my views. The plu 
 rality system, Sir, is a departure, it is a daring, 
 fearful departure from those high, world-wide 
 principles which distinguish Americanism from 
 monarchy. Is there no specific difference, is there 
 no difference in the practical workings of Ameri 
 canism, so-called republicanism, as enjoyed by 
 this great federal republic, and the government of 
 a monarchy, or a monarchical form of govern 
 ment ? 
 
 Now, Sir, I say that the plurality system is a 
 daring, and I had almost said, a Heaven-daring 
 departure from those principles. Tell it to some 
 of those patriots of 177G, who have long slum 
 bered in their graves, and I should not think it 
 strange at all that they moved from their resting 
 places. 
 
 What do the principles of monarchy do, Sir ? 
 When these principles are carried out, their legit 
 imate tendency is to extort groans, and tears, and 
 sighs. They not only clothe a people in rags in 
 too many cases, but they spread hunger and death 
 through the realm. Look at England, proud as 
 she is, and see what has been the result of her 
 system of government, with all the professions of 
 liberty which they make see what results have 
 been produced there for the last quarter of a cen 
 tury in this respect. Why, Sir, there is Ireland, 
 which contributes largely to the funds of that 
 nation ; and it presents the most frightful picture 
 of distress, poverty and wretchedness all owing 
 to the working of that government, which is 
 world- wide from that of a republic. 
 
 Let me say again, that the tendency of the 
 plurality system, if carried out, will be to lull the 
 mass of the people to sleep ; for it does, and it 
 will of necessity, deprive the great mass of the 
 people from acting, or from seeing any results of 
 their action. A man will stay at home because 
 he cannot act conscientiously. We have had a 
 question up here this morning about the pay roll, 
 and the gentleman from Pittslield avowed his 
 wish to act conscientiously in relation to this 
 matter ; and that is the way it will be with a 
 great many people throughout the Common 
 wealth. Men will not go and vote, if they cannot 
 vote upon principle. They will say : "If you tie 
 up my hands and my feet, how can I act ? If 
 you adopt the plurality system, what can I do ? 
 If I act at all, I want to act conscientiously." So 
 you see, Mr. President, that the result of the 
 
 plurality system will be to keep a great many 
 men from the polls. A man will say to himself 
 and to his boys : " Let us stay at home, for if we 
 were to go and vote, we should vote so and so ; 
 and we know that we cannot have the privilege 
 of expressing our opinions, or if they are expressed, 
 it will do no good at all. Let us stay at home, 
 and let the government go to rack and ruin." 
 Men will feel thus, and they will talk thus. 
 Every man can see, if he will reflect on it, that 
 this will be the result of that system. 
 
 It is said that the plurality system will be more 
 convenient. That seems to be the great bugbear 
 that is brought up here against the majority sys 
 tem ; but what have we got to do with conven 
 ience, in a government like this ? It might have 
 been more convenient for our fathers in 1776 to 
 have remained at home quietly, and let the iron 
 heel of tyranny and oppression tread out the last 
 spark of life and liberty from these colonies 
 that might have been more convenient ; but, Sir, 
 they were not men who heeded the labor, and toil, 
 and peril, of the cause in which they were en 
 gaged. They loooked beyond all these considera 
 tions to the principle of right and justice, and upon 
 these they acted ; and Sir, they acted nobly, wisely, 
 and victoriously. A government like ours, if it 
 does not cost anything, would scarcely be worth 
 anything ; can we expect that such a government 
 as ours will be brought to us if we lie supinely upon 
 our backs and make no effort ? If it be a mere mat 
 ter of convenience, I would rather take the noble 
 principle of one anciently, when he said : "I will 
 not sacrifice to God that which costs me nothing." 
 It seems to be a mere matter of dollars and cents 
 a mere saving of a little time. I ask the mem 
 bers of this Convention, through you, Mr. Presi 
 dent, must we sacrifice principles which are as 
 high as eternal truth, at the shrine of sordid con 
 venience? This is nothing more nor less than 
 sordid convenience ; it is a mere saving of dol 
 lars and cents ; and I hope and pray that we shall 
 do no such thing. Why shall we not have the 
 plurality system in all things, if it is a good 
 principle ? I was pleased to hear the remarks of 
 the gentleman from Boston, (Mr. Stevenson). 
 When he made his remarks I said " Amen !" in 
 spite of myself it drew it right out of ine for 
 he is a gentleman who speaks so eloquently, and 
 more than that, he speaks only when he has 
 something to say. Why not have the plurality 
 in everything ? Why not carry it into your 
 juries r If they cannot decide, let the majority 
 rule ; or why not let even a plurality rule, if a 
 case could arise, where there could be a plurality, 
 why not let them decide the question ? Would 
 it be a departure from principle, and a sacrifice of 
 
134 ELECTIONS BY PLURALITY. 
 
 [61st day. 
 
 Tuesday,] DURGIN YEAS. 
 
 [July 19th. 
 
 principle ? I tell you it would. Sir, no little 
 fraction, no clique, no little squad of men ought 
 to rule in the town, in the parish, in the county, 
 
 Ayres, Samuel 
 Barrows, Joseph 
 Bell, Luther V. 
 Bishop, Henry W. 
 
 Hobart, Aaron 
 Hobbs, Edwin 
 Hooper, Foster 
 Hopkinson, Thomas 
 
 in the state, or in the nation, and woe to this 
 
 Blagden, George W. 
 
 Hubbard, William J. 
 
 Union when the people allow such a state of 
 
 Boutwell, George S. 
 
 Hunt, William 
 
 affairs. 
 
 Bradbury, Ebeiiezer 
 
 Huntington, Asahel 
 
 Sir, the adoption of this plurality system is not 
 a tacit acknowledgment, but it is an open, unblush 
 ing avowal, that men are not capable of govern 
 
 Braman, Milton P. 
 Breed, Hiram N. 
 Brewster, Osmyn 
 Brinley, Francis 
 
 Huntington, Charles P, 
 Hurlburt, Samuel A. 
 Hyde, Benjamin D. 
 Jackson, Samuel 
 
 ing themselves. 
 
 Briggs, George N. 
 
 Jacobs, John 
 
 Sir, that is just what Old England, just what 
 
 Brown, Adolphus F. 
 
 James, William 
 
 Russia, just what Austria, just what every 
 tyrannical government under heaven declares 
 they all agree in the opinion that men cannot 
 govern themselves. Now, this is not a tacit 
 
 Bullock, Rufus 
 Bumpus Cephas C. 
 Burlingame, Alison 
 Carter, Timothy W. 
 Chandler, Amariah 
 
 Jenkins, John 
 Jeiiks, Samuel II. 
 Kellogg, Giles C. 
 Kingman, Joseph 
 Kinsman, Henry W. 
 
 acknowledgment of this doctrine, but it is a can 
 
 Chapin, Chester W. 
 
 Knight, Hiram 
 
 did, open, unblushing avowal, that a majority of 
 
 Childs, Josiah 
 
 Knight, Jefferson 
 
 the people cannot govern themselves ; and there 
 fore you must place the government in the hands 
 
 Clark, Henry 
 Clarke, Alpheus B. 
 Clarke, Stillman 
 
 Knight, Joseph 
 Kiiowlton, Charles L. 
 Kuhn, George H. 
 
 of somebody else. Now, Mr. President, I am 
 
 Coggin, Jacob 
 
 Ladd, John S. 
 
 not in favor of making this avowal to-day, 
 
 Cogswell, Nathaniel 
 
 Leland, Alden 
 
 or at any time. Far from it, Sir. As I have 
 
 Cole, Sumner 
 
 Littlefield, Tristram 
 
 said before, this is the acknowledgment ; for a 
 
 Conkey, Ithamar 
 
 Livermore, Isaac 
 
 plurality is not the people, but it is something 
 less than the people. If you adopt this system, 
 
 Cook, Charles E. 
 Cooledge, Henry F. 
 Critteiiden, Simeon 
 
 Lord, Otis P. 
 Lothrop, Samuel K. 
 Loud, Samuel P. 
 
 therefore, you declare, by a vote of this body, the 
 
 Crockett, George W. 
 
 Meader, Reuben 
 
 conviction that the people cannot govern them 
 
 Crosby, Leaiider 
 
 Miller, Seth, Jr. 
 
 selves. But, says one, other States have adopted 
 
 Crowell, Seth 
 
 Mixter, Samuel 
 
 it. So much the worse, say I. Suppose every 
 State in this whole republic should adopt the 
 
 Cushmaii, Henry W. 
 Dana, Richard H., Jr. 
 Do. vis Solomon 
 
 Morcy, George 
 Morss, Joseph B. 
 Morton, Marcus 
 
 plurality system, I say that only makes the mat 
 
 Dawes, Henry L. 
 
 Nayson, Jonathan 
 
 ter so much the worse; it is only making the 
 
 Dean, Silas 
 
 Noyes, Daniel 
 
 acknowledgment so much the more universal, 
 
 Doaiie, James C. 
 
 Oliver, Henry K. 
 
 that men cannot govern themselves, and it is 
 
 Easton, James, 2d 
 
 Orcutt, Nathan 
 
 consequently so much the more to be lamented 
 and deplored. There is only one tiling under 
 
 Eaton, Lilley 
 Edwards, EHsha 
 Edwards, Samuel 
 
 Osgood, Charles 
 Park, John G. 
 Parker, Adolphus G. 
 
 Heaven that would induce me to go for the 
 
 Ely, Homer 
 
 Perkins, Jonathan C. 
 
 plurality system, and that is this : If we were 
 
 Farwcll, A. G. 
 
 Pomroy, Jeremiah 
 
 likely to fail and not have any government at 
 
 Foster, Aaron 
 
 Putnam, George 
 
 all, I would go for the plurality system, or al 
 most anything else, in order to prevent such a 
 
 French, Charles H. 
 Frothingham, R., Jr. 
 Gilbert, Wanton C. 
 
 Putnam, John A. 
 Rantoul, Robert 
 Read, James 
 
 result, upon the principle that almost any govern 
 
 Gould, Robert 
 
 Sargent, John M. 
 
 ment is better than no government at all. But 
 
 Gouldiiig, Dalton 
 
 Schouler, William 
 
 that is the only inducement that would operate 
 
 Gray, John C. 
 
 Sikes, Chester 
 
 upon me to make me favor that system. 
 [The hammer fell, the time allowed having 
 
 Green, Jabez 
 Griswold, Josiah "W. 
 Griswold, Whiting 
 
 Sleeper, John S. 
 Souther, John 
 Stetson, Caleb 
 
 expired.] 
 
 Hale, Artemas 
 
 Stevens, Charles G. 
 
 The question being taken on the amendment of 
 
 Hall, Charles B. 
 
 Stevens, Granville 
 
 Mr. Upton, it was not agreed to. 
 
 Hammond, A. B. 
 
 Stevens, Joseph L., Jr. 
 
 The question then recurred on the amendment 
 
 Haskell, George 
 
 Stevenson, J. Thomas 
 
 of Mr. SCHOULER, and the question being 
 taken by yeas and nays, the result was yeas, 159 ; 
 
 Hawkes, Stephen E. 
 Hayward, George 
 Heard, Charles 
 
 Storrow, Charles S. 
 Strong, Alfred L. 
 Sumner, Increase 
 
 nays, 159 as follows : 
 
 Henry, Samuel 
 
 Talbot, Thomas 
 
 
 Hersey, Henry 
 
 Taylor, Ralph 
 
 YEAS. 
 
 Hewes, James 
 
 Train, Charles R. 
 
 Adams, Benjamin P. Aspinwall, "William 
 
 Heywood, Levi 
 
 Turner, David 
 
 Aklrich, P. Emory Atwood, David C. 
 
 Hillard, George S. 
 
 Turner, David P. 
 
 Andrews, Robert Austin, George 
 
 Hinsdale, William 
 
 Upham, Charles W. 
 
61st day.] 
 
 ELECTIONS BY PLURALITY. 
 
 135 
 
 Tuesday,] 
 
 NAYS ABSENT. 
 
 [July 19th. 
 
 Upton, George B. 
 
 Wilbur, Daniel Penniman, John 
 
 Taft, Arnold 
 
 Viles, Joel 
 
 Wilder, Joel 
 
 Perkins, Jesse 
 
 Thayer, Willard, 2d 
 
 Walcott, Samuel B. 
 
 Wilkins, John H. 
 
 Perkins, Noah C. 
 
 Thompson, Charles 
 
 Wales, Bradford L. 
 
 Wilkinson, Ezra 
 
 Phelps, Charles 
 
 Tilton, Abraham 
 
 "Walker, Samuel 
 
 Williams, J. B. 
 
 Phinney, Silvanus B. 
 
 Tilton, Horatio W. 
 
 Warner, Samuel, Jr. 
 
 Wilson, Milo 
 
 Pool, James M. 
 
 Tyler, William 
 
 Weeks, Cyrus 
 
 Winn, Jonathan B. 
 
 Rawson, Silas 
 
 Underwood, Orison 
 
 Wheeler, William F. 
 
 Wood, Nathaniel 
 
 Rice, David 
 
 Wallis, Freeland 
 
 White, Benjamin 
 
 
 Richards, Luther 
 
 Walker, Amasa 
 
 
 
 Richardson, Daniel 
 
 Ward, Andrew H. 
 
 
 NAYS. 
 
 Richardson, Samuel H. 
 
 Warner, Marshal 
 
 Abbott, Josiah G-. 
 
 Freeman, James M. 
 
 Rogers, John 
 
 Waters, Asa H. 
 
 Adams, Shubael P. 
 
 French, Rodney 
 
 Ross, David S. 
 
 Weston, Gershom, B. 
 
 Allen, Charles 
 
 French, Samuel 
 
 Sanderson, Amasa 
 
 Whitney, Daniel S. 
 
 Allen, James B. 
 
 Gale, Luther 
 
 Sanderson, Chester 
 
 Whitney, James S. 
 
 Allen, Joel C. 
 Allen, Parsons 
 
 Gates, Elbridge 
 Gilbert, Washington 
 
 Sheldon, Luther 
 Sherril, John 
 
 Wilbur, Joseph 
 Williams, Henry 
 
 Alvord, D. W. 
 
 Giles, Charles G. 
 
 Simonds, John W. 
 
 Wilson, Henry 
 
 Baker, Hillel 
 
 Giles, Joel 
 
 Smith, Matthew 
 
 Wilson, Willard 
 
 Banks, Nath l P., Jr. 
 
 Gooch, Daniel W. 
 
 Sprague, Melzar 
 
 Winslow, Levi M. 
 
 Barrett, Marcus 
 
 Gooding, Leonard 
 
 Spooner, Samuel W. 
 
 Wood, Charles C. 
 
 Bates, Eliakim A. 
 
 Graves, John W. 
 
 Stevens, William 
 
 Wood, Otis 
 
 Bates, Moses, Jr. 
 Bennett, Zephaniah 
 
 Greene, William B. 
 Hallett, B. F. 
 
 Stiles, Gideon 
 
 Wright, Ezekiel 
 
 Bigelow, Edward B. 
 
 Hapgood, Lymaii W. 
 
 ABSENT. 
 
 Bird, Francis W. 
 
 Hapgood, Seth 
 
 
 
 Booth, William S. 
 
 Haskins, William 
 
 Abbott, Alfred A. 
 
 Hadley, Samuel P. 
 
 Boutwell, Sewell 
 
 Hathaway, Elnathan P. 
 
 Alley, John B. 
 
 Hale, Nathan 
 
 Bronson, Asa 
 
 Hayden, Isaac 
 
 Allis, Josiah 
 
 Harmon, Phineas 
 
 Brown, Alpheus B,. 
 
 Heath, Ezra, 2d 
 
 Appleton, William 
 
 Holder, Nathaniel 
 
 Brown, Artemas 
 
 Hewes, William H. 
 
 Ballard, Alvah 
 
 Houghton, Samuel 
 
 Brown, Hammond 
 Brownell, Joseph 
 Bryant, Patrick 
 
 Hobart, Henry 
 Hood, George 
 Howard, Martin 
 
 Ball, George S. 
 Bancroft, Alpheus 
 Bartlett, Russel 
 
 Rowland, Abraham H. 
 Hunt, Charles E. 
 Huiitington, George H. 
 
 Buck, Asahel 
 Butler, Benjamin F. 
 
 Hoyt, Henry K. 
 Hurlbut, Moses C. 
 
 Bartlett, Sidney 
 Beach, Erasmus D. 
 
 Kellogg, Martin R. 
 Langdoii, Wilber C. 
 
 Carruthers, William 
 
 Ide, Abijah M., Jr. 
 
 Beal, John 
 
 Lawton, Job G., Jr. 
 
 Case, Isaac 
 
 Johnson, John 
 
 Beebe, James M. 
 
 Lincoln, F. W., Jr. 
 
 Chapin, Daniel E. 
 
 Kendall, Isaac 
 
 Bennett, William, Jr. 
 
 Loomis, E. Justin 
 
 Chapin, Henry 
 Churchill, J. McKean 
 
 Keyes, Edward L. 
 Kimball, Joseph 
 
 Bigelow, Jacob 
 Bliss, Gad O. 
 
 Lowell, John A. 
 Marvin, Theophilus R. 
 
 Clark, Ransom 
 
 Kiiowlton, J. S. C. 
 
 Bliss, William C. 
 
 Monroe, James L. 
 
 Cleverly, William 
 
 Knowlton, William H. 
 
 Bradford, William J. A 
 
 Morton, Marcus, Jr. 
 
 Crane, George B. 
 
 Knox, Albert 
 
 Brown, Hiram C. 
 
 Nash, Hiram 
 
 Cressy, Oliver S. 
 
 Ladd, Gardner P. 
 
 Brownell, Frederick 
 
 Nute, Andrew T. 
 
 Cross, Joseph W. 
 
 Lawrence, Luther 
 
 Bullen, Amos H. 
 
 Ober, Joseph E. 
 
 Cushnian, Thomas 
 
 Lincoln, Abishai 
 
 Cady, Henry 
 
 Paige, James W. 
 
 Cutler, Simeon N. 
 
 Little, Otis 
 
 Choate, Rufus 
 
 Parker, Joel 
 
 Davis, Ebenezer 
 
 Marble, William P. 
 
 Clark, Salah 
 
 Parker, Samuel D. 
 
 Davis, Isaac 
 
 Marcy, Laban 
 
 Cole, Lansing J. 
 
 Parsons, Thomas A. 
 
 Day, Gilman 
 
 Marvin, Abijah P. 
 
 Copeland, Benjamin F. 
 
 Payson, Thomas E. 
 
 Deming, Elijah S. 
 
 Mason, Charles 
 
 Crowninshield, F. B. 
 
 Peabody, George 
 
 Denton, Augvistus 
 
 Merritt, Simeon 
 
 Cummings, Joseph 
 
 Perkins, Daniel A. 
 
 DeWitt, Alexander 
 
 Moore, James M. 
 
 Curtis, Wilber 
 
 Pierce, Henry 
 
 Duncan, Samuel 
 
 Morton, Elbridge G. 
 
 Davis, Charles G. 
 
 Plunkett, William C. 
 
 Dunham, Bradish 
 
 Morton, William S. 
 
 Davis, John 
 
 Powers, Peter 
 
 Durgin, John M. 
 
 Newman, Charles 
 
 Davis, Robert T. 
 
 Preston, Jonathan 
 
 Eames, Philip 
 
 Nichols, William 
 
 Dehon, William 
 
 Prince, F. O. 
 
 Earle, John M. 
 
 Norton, Alfred 
 
 Denison, Hiram S. 
 
 Reed, Sampson 
 
 Easland, Peter 
 Eaton, Calvin D. 
 
 Orne, Benjamin S. 
 Packer, E. Wing 
 
 Dorman, Moses 
 Ely, Joseph M. 
 
 Richardson, Nathan 
 Ring, Elkanah, Jr. 
 
 Fay, Sullivan 
 Fellows, James K. 
 
 Paine, Benjamin 
 Paine, Henry 
 
 Eustis, William T. 
 Fisk, Lyman 
 
 Rockwell, Julius 
 Rockwood, Joseph 
 
 Fiske, Emery 
 
 Parris, Jonathan 
 
 French, Charles A. 
 
 Royce, James C. 
 
 Fitch, Ezekiel W. 
 
 Parsons, Samuel C. 
 
 Gardner, Henry J. 
 
 Sampson, George R. 
 
 Foster, Abram 
 
 Partridge, John 
 
 Gardner, Johnson 
 
 Sherman, Charles 
 
 Fowle, Samuel 
 Fowler, Samuel P. 
 
 Peabody, Nathaniel 
 Pease, Jeremiah, Jr. 
 
 Goulding, Jason 
 Greenleaf, Simon 
 
 Simmons, Perez 
 Stacy, Eben H. 
 
136 
 
 ELECTIONS BY PLURALITY. 
 
 [61st day. 
 
 Tuesday,] 
 
 HATHAWAY. 
 
 [July 19th. 
 
 Stutson, "William 
 Sunmer, Charles 
 Swain, Alanson 
 Taber, Isaac C. 
 Thayer, Joseph 
 Thomas, John W. 
 
 Tyler, John S. 
 Vinton, George A. 
 Wallace, Frederick T. 
 "Wetmore, Thomas 
 "White, George 
 Wood, William H. 
 
 Tileston, Edmund P. Woods, Josiah B. 
 Tower, Ephraim 
 
 Absent and not voting, 99. 
 
 The PRESIDENT. One hundred and fifty-nine 
 gentlemen have voted in the affirmative, and one 
 hundred and fifty-nine gentlemen in the negative. 
 In the belief that it is inexpedient to submit to 
 the people so radical a change in the Constitution 
 upon a casting vote, the Chair votes in the nega 
 tive, and the amendment is rejected. 
 
 Mr. HATHAWAY, of Freetown, moved to 
 amend the third resolution, so that it would read 
 as follows : 
 
 Resolved, That representatives to the gener 
 al court shall be elected as by law shall be pro 
 vided. 
 
 Mr. HATHAWAY. It is with diffidence that 
 I propose this amendment. I know the fate that 
 befell the amendment which I proposed yesterday, 
 when this Convention was in another situation, 
 that of the Committee of the Whole. I suppose 
 that I have a little, if not a full share, of the same 
 feeling that it is said pervades most families : that 
 the more sickly and rickety the bantling, the more 
 the parent becomes attached to it, because of its 
 weakness ; while the healthy and strong one is 
 left to care for itself. Sir, I recollect that this 
 proposition, when offered to the Convention in 
 another situation, fell almost lifeless. There is 
 another reason, that oppresses me, upon this mat 
 ter. I know very well the situation in which I 
 stand here, in relation to certain gentlemen, and 
 this Convention ; but before proceeding to that, 
 let me say to the gentleman from Salem, (Mr. 
 Lord,) that what he yesterday said is not pre 
 cisely true, as to myself. He yesterday said, if I 
 understood him correctly, that no man dared give 
 the reasons why this lleport was made, and reso 
 lutions offered in their present form. Sir, let me 
 say to him, that I " dare do all that becomes a 
 man, and he who dares do more, is none." But, 
 Sir, there are certain reasons, I doubt not, for this 
 lleport, which the Committee itself do not like to 
 give, and would not be judged to be exactly ap 
 propriate and parliamentary ; and therefore it 
 would be improper for me here to say, that such 
 reasons controlled their action, and hence I shall 
 not undertake to give them ; but in giving rea 
 sons that are proper and appropriate, and from 
 which no one would start back, I will assure 
 
 the gentleman from Salem that he will find me 
 by no means backward in giving, in defence of 
 any measure I may propose ; but I am not an 
 swerable for this lleport and resolutions, and 
 shall leave it to the Committee who reported them, 
 to give their reasons therefor. I cannot refuse 
 the temptation of saying, that I feel that a debt of 
 gratitude is due from me to my constituents, for 
 the generous confidence they have bestowed upon 
 me, aye, Sir, something more, a debt, not only 
 of gratitude, but of duty. I feel as though I 
 should fail of performing my duty to them, did I 
 not make the proposition which I have made to 
 this Convention, in reference to this amendment. 
 Permit me, Sir, to say, that I may be again, as I 
 unjustly heretofore have been, subjected to the 
 shafts of calumny, from a certain quarter, for the 
 course which I am taking ; but I have had, thus 
 far, and trust that I shall continue hereafter to 
 have, but one rule to guide me in this Conven 
 tion. When I came into it, it was for the pur 
 pose of correcting our fundamental and organic 
 law, wherever, in my judgment, it had operated 
 badly with or upon the people ; and wherever it had 
 worked well, and we stood well upon it, there, I 
 said, long since, that I was willing to stand, with 
 out a change ; and where I thus stood, to "stand 
 still." I believe that such are the views of all my 
 associates, in this Convention, from the county of 
 Bristol; and although we may have sometimes 
 voted differently, yet our difference was a manly 
 one, and in good faith, all of us seeking for the best 
 measures and greatest good ; but others have lev 
 elled at some of us because we choose thus to 
 act, independent of their direction and bidding 
 the shafts of detraction and calumny. I presume 
 that there is no one here, from the county of 
 Bristol, who is not perfectly willing to stand up 
 and meet these Parthian arrows of detraction, 
 although they may fall as fast as hail from a sum 
 mer s cloud ; but let me say, that they have been, 
 thus far, impotent, because they were hurled at 
 us by a puny arm, and came from a feeble hand. 
 And let me say, farther, that time will soon heal 
 the wounds which have been inflicted by that 
 feeble hand and puny arm, and will soon allay 
 the stings that calumny has attempted and 
 intended. 
 
 Sir, to come to the matter in hand, I go for the 
 amendment to the resolution, because the people 
 do not demand the change which is contemplated 
 by the resolution. Let me say, as the gentleman 
 for Erving, (Mr. Griswold,) said the other day, 
 in reference to the loan of the State credit, that 
 the object of this resolution was not a part of the 
 programme of the campaign which preceded the 
 call of this Convention. Will he, or anybody 
 
61st day.] 
 
 ELECTIONS BY PLURALITY. 
 
 137 
 
 Tuesday,] 
 
 HATHAWAY HOOPER. 
 
 [July 19th. 
 
 else, tell me where this amendment to the present 
 Constitution, in reference to elections for repre 
 sentatives, town, or district officers, was put forth, 
 or recommended, in that famous document that 
 was drawn up by him, and sent out to the peo 
 ple ? Sir, so far as I know, it made neither part 
 nor parcel of that document. It was not one of 
 those propositions which were there chalked out 
 for us here to act upon. It may possibly be 
 there, nevertheless ; but if it is, it has escaped 
 my observation. 
 
 But, Sir, I have a deeper and more solid ob 
 jection than this ; and I ask whether our present 
 Constitution, thus far, in regard to this matter of 
 choosing representatives and town officers, has 
 worked well ? Permit me to say, still farther, 
 that I hope that your Constitution will remain 
 precisely as it now stands, and has stood ever 
 since 1780, as to the election of your representa 
 tives and town officers. Will gentlemen point to 
 a single word in that Constitution that requires 
 by which mode your representatives and town 
 officers shall be elected, whether by a majority 
 vote or a plurality vote ? Sir, have there been 
 any petitions from the people laid upon your table, 
 showing that they desire a change of the Consti 
 tution in this matter ? Again, Sir, I ask, has the 
 table of any of your legislatures ever groaned un 
 der the weight of complaints, embodied in peti 
 tions from the people, in regard to this matter ? 
 No, Sir Xo, Sir. Then, if there be no com 
 plaint, and has been none, in the community, 
 why make this change ? I put it to gentlemen 
 seriously : Why should we make this change r 
 The great complaint has been in reference to the 
 election of your governor, and those officers who 
 have been elected, not by towns, but by the peo 
 ple generally ; that it was necessary to have a 
 plurality vote as the test in such elections, because 
 of the great difficulty of calling the whole people 
 of the Commonwealth, or any great portion of 
 them, out a second time. Gentlemen have said, 
 and repeated it, and it has been handed from the 
 lips of one to the other, that your towns were but 
 little republic?, and that you could go on and vote 
 perhaps as many as three or four hundred times 
 in a day, in some instances that in town elec 
 tions the people are all together ; and it has been 
 repeated here, again and again, that your nomi 
 nations in town meetings for representatives, or 
 town officers, are not made in caucus and in con 
 vention, as for State officers, where the nomina 
 tions are taken from the towns, but that they are 
 nominated upon the spot, and at the time of the 
 election ; that these nominations come from the 
 people themselves, when they are all together ; 
 and, if this is so, I cannot see, for the life of me, 
 
 why, in this matter, you should not allow the 
 Constitution to remain as it is. This, as I said 
 before, did not constitute any part of the reasons 
 that were given why this Convention was called ; 
 neither has there been any complaint, to my 
 knowledge, in reference to this matter, on the 
 ground that the people did not choose, or had 
 failed to choose, all the representatives to which 
 they were entitled. Sir, whenever it is shown to 
 me that the people demand this change, I shall 
 go heart and hand for it ; but, until I do see it, I 
 shall go, not for rebuking them because they have 
 not complained as you virtually would if this 
 resolution shall pass but, I am for retaining the 
 good old rule which has thus far worked so well, 
 and in regard to which no one has ever complain 
 ed. I would leave it precisely as it is ; and let 
 me say to gentlemen, in reference to this matter, 
 that if this resolution shall be adopted, then I 
 would make not only the representatives and town 
 officers elective, under a statute such as the legis 
 lature may hereafter make, but I would apply it 
 to all your state and district officers. I cannot 
 see any reason why the rule should not be a uni 
 form one, and apply to the whole, as well as a 
 part of them. 
 
 Sir, I am not inclined to discuss this matter at 
 any great length ; but it seems to me that, unless 
 gentlemen show a substantial reason for making 
 this change in the organic law as it now stands, 
 no such change should be made. I know of 
 no rule in the present Constitution, under, and 
 by which, the legislature might not, at any 
 time, since 1780 down to the present time, have 
 changed the law in an hour, and have adopted 
 the plurality system in the election of representa 
 tives and town officers, if it had so pleased ; and 
 if there had been any great evils in this matter, 
 arising from the requisition of a majority of the 
 voters, and if the people had felt and suffered 
 inconvenience and wrong, think you that the 
 legislature would not have been called upon, 
 again and again, to make a change ? Assuredly, 
 it would. 
 
 Sir, I have no great regard for the amendment 
 to these resolutions, on any other ground than 
 that I believe it to be right and a good one. It 
 is not, however, such an amendment that I cher 
 ish so dearly as to induce me to vote against the 
 whole of these resolutions, in case it should not 
 be adopted ; but it does seem to me, that the Con 
 stitution as it now stands, is altogether better 
 than the change which is proposed. I do not 
 believe that the people of the Commonwealth are 
 ready for a change in this matter ; and least of all, 
 for such a change as this. 
 
 Mr. HOOPEB, of Fall River. I shall vote 
 
138 
 
 ELECTIONS BY PLURALITY. 
 
 [61st day. 
 
 Tuesday,] 
 
 HOOPER KEYES. 
 
 [July 19th. 
 
 for the gentleman s proposition to amend, but 
 not for the reasons which he has assigned for its 
 adoption, but for reasons precisely the opposite of 
 those which he has given. I shall vote for it be 
 cause I am in favor of electing representatives by 
 a plurality vote. I should prefer to have all elec 
 tions decided on the first ballot ; and if I cannot 
 get that, then I would leave the matter to the 
 legislature ; and then the people can accommo 
 date themselves, and have the plurality system 
 whenever they choose to have it. I think it 
 altogether preferable to leave it to the legislature 
 to determine, than to put into the Constitution a 
 provision providing for the plurality mode on the 
 second ballot, and only on the second ballot. If 
 that is done, the mode can never be changed 
 until we change the Constitution itself. 
 
 I fully concur with the gentleman from Free 
 town, (Mr. Hathaway, ) that as this thing has 
 stood in the Constitution, the legislature might 
 have changed the mode at any time, and have 
 adopted the plurality system. They might have 
 made this change in reference to representatives 
 and all town officers, and therefore I am willing 
 to leave it in that shape ; for 1 believe that the 
 people will see to it, that they will have their 
 views carried out, and that the time is not distant 
 when they will require all elections of town offi 
 cers, to be conducted on the plurality system. 
 
 For these reasons, in brief, I hope that the 
 amendment may be adopted. 
 
 Mr. KEYES, for Abington. Since this discus 
 sion took place, I have waited without saying a 
 word ; supposing that it was well understood 
 that this plan was a compromise between the two 
 parties here, in relation to the questions of plu 
 rality and majority. When the Committee re 
 ported to the Convention in favor of universal 
 plurality, it was defeated, and it was found that 
 there was a great difference of opinion, a major 
 ity of the members of the Convention being in 
 favor of the majority system, and a new Commit 
 tee was appointed, and a compromise plan was 
 drafted, which, so far from being an unmeaning 
 and imperfect system, was founded on reason in 
 every part of it ; and if there had been a disposi 
 tion to concede anything on the part of either one 
 side or the other, that system would have been 
 adopted without farther strife, by a large majority 
 of this body. I must confess, however, my sur 
 prise 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 Con 
 vention 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 ? 
 Everything. The liberal party in the Convention 
 
 would have been defeated in all the most impor 
 tant 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,! would have prayed Heav 
 en that the people might have hissed the whole 
 amended Constitution into oblivion. 
 
 Now, what is the system before us ? It has 
 been mainly adopted, and there was a reason 
 why it should have been adopted. It was adopt 
 ed as a compromise, on the ground that the 
 Convention was about equally divided upon the 
 subject to which it refers. We have proposed a 
 plan of compromise, basing the elections in part 
 upon the plurality system, and in part upon the 
 majority system. The reason was this, viz. : 
 certain officers elected on general ticket, were 
 restricted to the majority rule on the ground that 
 if the people should fail to elect, and the election 
 should devolve on the legislature, they w r ould 
 still be elected by the immediate representatives 
 of the whole people ; and according to this the 
 people would be allowed to nominate their own 
 officers without trouble, or the intervention of 
 others. 
 
 In regard to the Senate, the majority system 
 has been objected to, under the present system, 
 on the ground that the representatives of one 
 locality or section, have elected the local repre 
 sentatives of other sections. To do a\vay with 
 that difficulty, it is provided that the Senate shall 
 be elected by a plurality vote, so that each district 
 may elect its own senators, and other district 
 officers, without interference on the part of rep 
 resentatives of other districts. 
 
 We supposed that that would do away with 
 every difficulty which existed in regard to the 
 present system. 
 
 Those who go for the plurality system in ref 
 erence to State officers, are at heart in favor of the 
 majority principle for electing members of the 
 House of Representatives. What is the reason 
 that they now go for a plurality system ? Why, 
 Sir, because they suppose that they are going to 
 derive some advantage from it. Within the last 
 ten years, the people of the country towns have 
 been deprived of a thousand representatives, by 
 the operation of the majority system. If there 
 be any place where the plurality system is want 
 ed, it is in the election of town representatives. 
 If you want to establish the principle of equality, 
 there is no case on earth, where plurality in vot 
 ing is justifiable to so great an extent, as it is in 
 the election of town representatives, that the 
 towns may enjoy their own legal rights on the 
 floor of this House. I want to see every town in 
 the State of Massachusetts represented according to 
 
61st day.] 
 
 ELECTIONS BY PLURALITY. 
 
 139 
 
 Tuesday,] 
 
 KEYES HATHAWAY. 
 
 [July 19th. 
 
 its legal rights, every year, in the legislature ; be 
 cause, let party ties be as strong as they may, they 
 are looser in the country towns than they are any 
 where else. In State conventions, the leaders of 
 a party can obtain, and hold control, and the 
 delegates en masse, in nine cases out of ten, are 
 mere machines to register their edicts. By this 
 term, I mean no disrespect, but simply to inti 
 mate that they usually follow their leaders, either 
 for the reason that they have confidence in them, 
 or because they see no practicable mode of doing 
 otherwise. I have had some experience myself, 
 in regard to this matter. The first time I was 
 elected to the House of Representatives, although 
 belonging to the dominant party, 1 was just on the 
 extreme verge of it ; and, on that account, was 
 considered as being no better than an infidel. 
 But with six of the leaders pitted against me, and 
 without a single voice raised in my favor, I flog 
 ged them over and over again, by the aid of the 
 country members. It was upon a party question, 
 to be sure ; but the country members are not 
 trained altogether, and solely, to follow party 
 lead ; and when they come here, and see how the 
 wires are pulled which, towards the close of a 
 session, they have generally pretty well learned 
 they are then able to act independently. 
 
 If you will have plurality, therefore, give it to 
 the country towns, that they may always elect 
 their representatives, and not be deprived of such 
 a large fragment of their strength, as is exhibited 
 in that long list which has been presented to us 
 by the gentleman from Boston, (Mr. Giles). Now 
 these are the reasons why a compromise was pro 
 posed ; and it was supposed that, on these grounds, 
 and with the proposition which the new Commit 
 tee put forth, the Convention would be harmonized 
 on the subject, if parties were disposed to harmo 
 nize at all. But this feeling, I am sorry to say, 
 has not been met in what would seem to me, to 
 be a proper spirit, on the part of members of this 
 Convention ; but gentlemen have stood up here, 
 and opposed this compromise, not, as I believe, I 
 may safely say, because they have changed their 
 principles within the last two years, but because 
 of some advantage, which they expect will accrue 
 to their party, from the course they are pursuing. 
 They have their own objects in view, and the 
 men who desire the success of the Whig party, 
 have voted that way, whether they are called 
 Whigs, or by some other name. There is no use 
 in trying to disguise that fact any longer. 
 
 Now, in respect to all these resolves but one, 
 and I do not recollect indorsing that one which 
 relates to municipal officers in the Committee 
 I hope they will pass. I thought, at least, that in 
 regard to the election of municipal and town 
 
 officers, the mode was to be left to the legislature. 
 We have comprehended the whole organization 
 of the legislature, and have prescribed the method 
 by which that body shall be constituted ; and if 
 any change is to be made, wherein the plurality 
 rule is to be made to apply, it should be, accord 
 ing to my view, to the election of town represen- 
 tatives ; because we know that a state of things has 
 existed, and will exist, hereafter, for the next four 
 years at least, which renders it necessary ; for 
 there is an impassible barrier between the union 
 of any two of the existing parties within that 
 period ; and therefore, I say, that in case of fail 
 ure to elect, on the part of the country towns, by 
 reason of the majority system, it would be equiv 
 alent to reducing their representation in propor 
 tion to the number of said failures. 
 
 Mr. HATHAWAY. Will the gentleman par 
 don me a moment. The gentleman entirely mis 
 takes the proposition I made. The proposition 
 which I made, was to leave it entirely within 
 the power of the legislature to determine whether 
 the mode of election should be by plurality, or 
 majority, or any other mode. 
 
 Mr. KEYES. In order to have a system which 
 shall embrace the three great branches of the 
 government, so that all the people could under 
 stand it, and to place it beyond the possibility of 
 change by the legislature, I should prefer to 
 have the matter fixed and stationary in the Con 
 stitution. As regards town and municipal offi 
 cers, I would leave it to the people themselves, 
 to do as they please. 
 
 Now, Mr. President, it strikes me, that if the 
 Convention itself had sat in Committee, and con 
 sidered what the state of opinion was in this body, 
 as indicated by the votes already taken, and if 
 they had been willing to indulge the same liberal 
 spirit which actuated the Committee, in order to 
 harmonize the views, by conceding something on 
 both sides ; then I think that this plan would 
 have been adopted by a triumphant majority. 
 
 I have looked at the Convention prehaps I 
 shall be out of order in saying so from a hun 
 dred miles distance ; and when I have seen the 
 votes recorded on several important questions, it 
 struck me that the Convention was not acting 
 upon its own judgment, but that members were 
 actuated by unwise fears of the people. They 
 have seemed to desire to show that they were 
 more economical, for example, than they actually 
 are ; they do not seem to me, to have acted as 
 if they were elected to exercise their own 
 judgment and sense of right, according to their 
 ideas, but to take counsel of every bugbear and 
 opinion in the community, so that their course 
 might be shaped accordingly. 
 
140 
 
 ELECTIONS BY PLURALITY. 
 
 [61st day. 
 
 Tuesday,] 
 
 KEYES SUMNEK HOOPER BATES. 
 
 [July 19th. 
 
 How these amendments are to be submitted to 
 the people, I do not know ; but so far as the action 
 of the Convention is concerned, in my opinion, it 
 has defeated, in many important cases, the very ends 
 which a large majority of the people desired, espe 
 cially in relation to the judiciary. The election of 
 j udges, by the people, would have been, in my opin 
 ion, a jewel in the Constitution, which the people 
 would have rallied most strongly to support. 
 Yes, Sir, the people all over the State, talk to-day 
 about the Convention, as not daring to utter its 
 sentiments, on various important matters, and es 
 pecially on the question of loaning the credit of the 
 State to private corporations, because a certain 
 portion of the people threaten to rise in opposi 
 tion to the new Constitution, should it contain 
 any restrictions in regard to that policy. Now a 
 Convention so controlled, is worthy of the hisses 
 and scorn of the people, instead of its votes. 
 How can we expect them to indicate their real 
 sentiments, if we stand here cowering before 
 them, afraid to declare our own ? 
 
 But I will not detain the Convention with any 
 thing of that sort ; I wish to say, in sincerity, that 
 the Committee was appointed to take up and 
 consider the various views of this Convention. 
 They have given the subject their careful atten 
 tion, and have brought in a compromise plan, 
 which has reason and common sense as its basis, 
 and I trust it may be adopted. 
 
 Reconsideration. 
 
 Mr. SUMNER, of Otis. I move to recon 
 sider the vote by which the Convention rejected 
 the amendment, offered by the gentleman from 
 Boston, (Mr. Schouler,) if such a motion is in 
 order. 
 
 Mr. HOOPER, of Fall River. I should like 
 to inquire of the Chair, whether the motion of 
 the gentleman from Freetown, (Mr. Hathaway,) 
 is not the tirst motion under consideration ? 
 
 The PRESIDENT. That amendment is to 
 the third resolve, but the gentleman from Otis, 
 (Mr. Sumner,) moves to reconsider a vote already 
 taken in reference thereto, and it is the subject 
 first in order, under the rules. 
 
 Mr. SUMNER, of Otis. I have but few words 
 to say, in reference to this subject. Aware that 
 the Convention must be, to a very considerable 
 extent, wearied with the debate which has been 
 had upon this most important matter ; yet from 
 the consideration that in relation to it I have 
 kept silence heretofore, I trust that a few sugges 
 tions from me, in support of the motion which I 
 have made, will be entertained. 
 
 I make the motion, among other reasons, for 
 this : that it is very apparent from the vote which 
 
 has been taken, that there is a very strong dispo 
 sition in this Convention, and out of it, to sus 
 tain the plurality principle ; and if the votes which 
 have just been given in favor of the affirmative 
 of the proposition were canvassed, I apprehend 
 they will be found to rest upon a large majority 
 of the people of Massachusetts. Sir, I have no 
 doubt of the fact, radical as the proposition may 
 appear in the minds of some, that there is in this 
 Commonwealth a very great majority of the 
 people in favor of a change. I, as one of the 
 friends of this Convention, supposed, from the 
 way in which it was called, and in which the 
 delegates were elected to it, that one of the prom 
 inent objects which would be carried into effect 
 by its action, would be the adoption of the plu 
 rality system ; and no one could have been so 
 deaf as not to have heard, from every section 
 of this Commonwealth, one complete chorus of 
 voices proclaiming that the old majority princi 
 ple, like many other matters of policy which had 
 been used in this Commonwealth in times past, 
 had become worn out. Once, it was required 
 that our governor, lieutenant-governor, senators, 
 and representatives, should have a property qual 
 ification. That requisition answered their day 
 and generation perfectly well. But that has long 
 since been worn out, and others, newer and 
 fresher, have been adopted. And such has been 
 the difference of opinion, so to speak, that the 
 majority rule is now worn out ; and I submit, 
 that if the people have demanded any change in 
 the fundamental law of the State, they have de 
 manded a change in respect to the majority rule. 
 
 Sir, I do not propose to go into a discussion of 
 this question at length, but I have very great 
 doubt whether, upon a fuller consideration of 
 this subject, this Convention will be content with 
 the limited proposition which is now offered to 
 the people in regard to this matter. I think it is 
 worthy of fuller consideration, and reconsidera 
 tion, also ; and therefore I have made my motion. 
 
 Mr. JAMES, of South Scituate. I hope the 
 motion to reconsider will prevail. 
 
 Mr. BATES, of Plymouth. I rise to a ques 
 tion of order. I believe a motion to reconsider, 
 must go into the Orders of the Day. 
 
 The PRESIDENT. Not upon a collateral 
 question. 
 
 Mr. BATES. I also rise to a question of priv 
 ilege. As appears by the yeas and nays called 
 this morning, and recorded by the Secretary of 
 the Convention, opposite the name of H. C. 
 Brown is recorded the word " yes." To the call 
 of that name the clerk says, there was an audible 
 response, and he so recorded it. The gentleman 
 says he was not in the hall, and did not vote upon 
 
61st day.] 
 
 ELECTIONS BY PLURALITY. 
 
 141 
 
 Tuesday,] 
 
 BKOWN ASPINWALL JAMES WHITNEY. 
 
 [July 19th. 
 
 the question. I should like to know how far that 
 matter has been carried, and how many gentlemen 
 have been recorded as voting who did not vote ? 
 
 The PRESIDENT. It is competent for any 
 member of the Convention who is recorded as 
 having voted upon the question, to call the atten 
 tion of the Convention to the subject, and have 
 the record amended in that respect, if wrong. 
 
 Mr. H. C. BROWN, of Tolland. I was not 
 present at the time the yeas and nays were called. 
 Had I been present, I should have voted differ 
 ently from what appears by the record. 
 
 The PRESIDENT. It is competent to have 
 the record amended, inasmuch as the question 
 immediately pending is on a reconsideration of the 
 vote rejecting the amendment, and if it shall ap 
 pear that the vote was improperly announced, 
 then the action falls. By reference to the record, 
 the Clerk informs the Chair that the word " yes " 
 is placed opposite the name of II. C. Brown, 
 and it is for the Convention to say, whether a 
 deduction shall be made from the affirmative vote, 
 and if the Chair hears no objection, the record will 
 be amended according to the facts. 
 
 No objection was made, and the record was 
 amended accordingly. 
 
 The PRESIDENT. The change does not af 
 fect the result, and therefore it is unnecessary for 
 the Convention to pursue the matter farther. 
 
 Mr. ASPINWALL. It may be as well to 
 suggest at this time, as there are several gentlemen 
 in the Convention by the name of Brown, and a 
 mistake has occurred, that some one of them may 
 have answered to the "wrong name. I therefore 
 request that the record may be examined to ascer 
 tain whether all the gentlemen by that name are 
 recorded as they answered. 
 
 The PRESIDENT. Any gentleman who thinks 
 that his vote is improperly recorded, can examine 
 the journal at his pleasure. The gentleman from 
 Scituate is entitled to the floor. 
 
 Mr. JAMES, of South Scituate. I was about 
 to say, when I was interrupted, that I hoped that 
 the motion to reconsider would prevail, and the 
 amendment adopted, and then the Convention 
 will have done one thing which the community 
 desire. I can speak for my own constituents, and 
 for those in the neighboring towns, that they con 
 sider this one of the most important matters be 
 fore the Convention, and are almost unanimously 
 of the opinion that the plurality system should be 
 adopted. We have met with a great deal of dif 
 ficulty, not only in our elections of members of 
 congress, but in our elections of members of the 
 legislature. For five years the town of Scituate 
 went unrepresented, because trial after trial could 
 affect nothing. I would ask if that is not an 
 
 evil ? That is a sufficient answer to the gentleman 
 from Freetown, (Mr. Hathaway,) who asks if any 
 evil exists in the Commonwealth ? That is an 
 evil, and ought not we to lay our hands upon it, 
 and reform the evil ? I should be glad to see this 
 matter reconsidered, and to see the plurality sys 
 tem adopted throughout, and I hope the motion 
 will prevail. 
 
 Mr. WHITNEY, of Conway. The immediate 
 question, I believe, is upon the motion to recon 
 sider the vote by which the amendment of the 
 gentleman from Boston, (Mr. Schouler,) was 
 rejected. I wish to say a word in reply to the 
 arguments urged in favor of a reconsideration. 
 They are based upon the idea that the people 
 desire the plurality rule, in order to get rid of the 
 inconvenience of a second election. Now, Sir, 
 if gentlemen will examine the Report of this 
 Committee which is the second Committee upon 
 this subject, and appointed in full view of the votes 
 previously taken upon the subject, it will be 
 found that they have carefully matured the sys 
 tem they present, so as to avoid a second elec 
 tion by the people. They simply leave the Con 
 stitution, in reference to the officers for whom the 
 whole people of the State vote, where the Con 
 stitution now leaves it. They provide that the 
 House of Representatives shall send the names 
 of two out of three instead of two out of four 
 to the Senate, and that the Senate, from the two 
 thus sent, shall select one. Now, here is the 
 principle of the present Constitution retained, 
 which, so far as I know, is satisfactory to the 
 people. What the people complain of, is the 
 trouble, expense, and ill-feeling growing out of 
 second elections. Now, your Committee have 
 provided against this. They have reported that 
 in the election to be held by the people, when 
 they shall vote for members of the House, and 
 for senators after they have adopted the amend 
 ment they will vote for those representatives 
 with a full knowledge that they delegate to them 
 the right to vote in the legislature for State offi 
 cers not elected by a majority vote. Now, I take 
 it, as I have before said and I must, to some 
 extent, repeat that the people have no attachment 
 to the plurality rule, as an abstract question. 
 They have no attachment to the idea, theoreti 
 cally, that a less number than the majority should 
 rule. It is a necessity forced upon them by a 
 division of the Commonwealth into more parties 
 than two, that makes them desire some expedient 
 to rid themselves of the trouble and expense at 
 tending repeated elections. The resolutions, as 
 they now stand, meet the desires of the people here, 
 and they will prefer to delegate to their represent 
 atives the right to vote in the legislature in case 
 
142 
 
 ELECTIONS BY PLURALITY. 
 
 [61st day. 
 
 Tuesday,] 
 
 WHITNEY. 
 
 [July 19th. 
 
 of failure to make a choice, to being called upon 
 a second time to ballot. They will choose to 
 provide against this in the manner here proposed. 
 I undertake to say, in every town in the Com 
 monwealth of Massachusetts, when a representa 
 tive is to be elected under your amended Consti 
 tution, he will be elected with a direct reference to 
 some man standing before the people as candidate 
 for governor. No candidate for election as a rep 
 resentative could be elected, unless it were under 
 stood by the constituency which is to elect him, 
 that he would vote for the candidate for governor, 
 which a major part of that constituency favor, in 
 this House, in case of a failure upon the part of 
 the people to elect their governor, and the election 
 is thrown into the House of Representatives. In 
 case there are three parties, and two unite in their 
 preference for a particular candidate for governor 
 still it is expected that the representatives will 
 carry out the will of a majority of the people 
 in that respect, and the people will take care of 
 this matter when they elect representatives and 
 senators. 
 
 Now, Sir, the argument has been brought up, 
 that our governors have been elected by a legisla 
 ture in which all the people of the Commonwealth 
 were not represented. It must be recollected 
 that under the amended Constitution, if this 
 compromise Report be adopted, we shall not as 
 semble here with vacancies in half the towns in 
 the Commonwealth. By the application of the 
 plurality rule in your election of representatives, 
 you will have filled your House, and there will 
 stand here a representative for every town in the 
 Commonwealth of Massachusetts. And those rep 
 resentatives will come here indoctrinated with the 
 principles of the constituents they represent ; they 
 will bring with them the voice of a majority of 
 the people in the towns from which they are 
 elected, in reference to the man for whom 
 they are to vote to fill the office of governor of 
 the Commonwealth. They will come here, and 
 vote, not by ballot, but vote viva, voce, for there 
 is to be no dodging hereafter in this matter. The 
 men who are sent here must declare by the 
 voice the will of their constituents ; and I under 
 take to say, that men will come here virtually 
 instructed by their constituents to vote one way, 
 and there will be no danger that they will vote 
 another, but they will meet the desires and will 
 of the people who elected them. 
 
 Mr. President : I did not come here prepared to 
 discuss this question ; but in relation to this mo 
 tion for a reconsideration, made by the gentle 
 man for Otis, (Mr. Sumner,) I believe that any 
 judicious mind who wishes for the adoption of 
 the amendments which we shall recommend, by 
 
 the people, would not think it wise or expedient 
 to submit to the people an amendment making 
 so important and radical a change as this makes, 
 which was adopted in the Convention only by a 
 bare majority of one or two votes ; adopted by 
 less than a majority of those who favored the 
 calling of a Convention originally, who have the 
 responsibility of calling the Convention, and who 
 will have the responsibility of carrying these 
 amendments before the people. I say, a major 
 ity of these men are against a reconsideration of 
 this question, on the grounds proposed, to wit : 
 in order to ingraft upon these resolutions an 
 amendment to be carried by a bare majority. 
 And, I repeat, it is these men who will have the 
 responsibility of carrying the amended Constitu 
 tion before the people, who object to the amend 
 ment proposed by the gentleman for Otis. 
 
 Now, Mr. President, I put it to you, I put 
 it to the members of the Convention, whether it 
 would be wise, expedient, or in any sense desir 
 able, for us to go before the people upon any 
 amendment to the Constitution, in relation to 
 which we are about equally divided ? There can 
 be no doubt about it. The part of wisdom, then, 
 seems to be, to agree, as we have done, upon some 
 medium ground upon this subject, and stand 
 there. But, Sir, where is the necessity to alter 
 the resolutions ? As they now stand, we shall 
 have filled our Senate by elections by the people, 
 for a plurality elects there. We shall have filled 
 the House of Representatives by plurality elec 
 tions, so that there will be no vacancies there, 
 and we shall thereby have, in the legislature, an 
 expression of a majority- will of the people of the 
 Commonwealth, elected with a direct reference to 
 this question of State officers. A majority of the 
 people will have delegated their power to their 
 senators and representatives to elect their gover 
 nor, in case they themselves fail in an election. 
 So that, in the election of governor, and of your 
 highest State officers, you will still recognize the 
 great majority principle as the true principle. 
 We shall still preserve that principle in the choice 
 of our governor, lieutenant-governor, secretary, 
 auditor, &c., and we shall keep embodied in our 
 Constitution, permanently, the sacred principle, 
 that, in the majority of the people alone, resides 
 the sovereignty of this Commonwealth. We shall 
 transmit that principle, sacred with our Constitu 
 tion, to our posterity. Sir, let us not give up 
 that principle. I would keep it in the Constitu 
 tion, in some form. I would recognize that fun 
 damental doctrine of all republican governments, 
 somewhere in our amended Constitution. 
 
 Sir, gentlemen go for the plurality, not because 
 it is right in principle, but because it is a politi- 
 
61st day.] 
 
 ELECTIONS BY PLURALITY. 
 
 143 
 
 Tuesday,] 
 
 WHITNEY DANA. 
 
 [July 19th. 
 
 cal necessity, forced upon them by circumstances 
 now existing in the Commonwealth. This is the 
 only avowed reason. Now, Sir, the Report of 
 the Committee has adopted that principle so far 
 as that necessity exists, but it does not exist in 
 the election of governor, lieutenant-governor, and 
 your other State officers, elected by general ticket. 
 I therefore hope, that we shall stand by the Re 
 port of the Committee, and that we shall not vote 
 to reconsider, for the purpose of farther altera 
 tions in the amendment proposed by these resolu 
 tions. Let us stand upon this ground, and I fear 
 not the people ; they will sustain us. I believe 
 we can then go triumphantly before the people 
 with this amendment as it is; and I repeat, I 
 hope the Report will be adopted as it now stands, 
 without any alteration. 
 
 Mr. WHEELER, of Lincoln, demanded the 
 yeas and nays upon the motion to reconsider. 
 
 The yeas and nays were ordered. (Cries of 
 < question , " "question .") 
 
 Mr. DANA, for Manchester. I am aware, by 
 the call of " question," "question," which I have 
 just heard, that the Convention wish to come to 
 a vote upon this motion, and I will not, there 
 fore, detain them but a moment. I had the 
 privilege of addressing the Convention, on another 
 occasion, upon the plurality side of this question. 
 I then said all that I deemed it important to say ; 
 but, I now wish to call the attention of the Con 
 vention, for a moment, to the principles contained 
 in the proposition before us, as it came from the 
 Committee. 
 
 When this subject was before under considera 
 tion, the question was on the adoption of the plu 
 rality or the majority system absolutely ; but it 
 now comes before us in the form of a compromise, 
 and to the merits of that compromise our atten 
 tion is called. Now, Sir, the only distinction, 
 which I can see, upon which a compromise of 
 these two principles can properly be made, b this : 
 In deliberative assemblies, where there can be 
 frequent ballotings taken without inconvenience, 
 and where there is danger of being taken by sur 
 prise, the majority principle should be adopted. 
 I would always require it in an assembly like this ; 
 I would always require it in your town affairs, 
 and in the election of town officers. But where 
 the people vote in large masses, where they can 
 not vote often, without very great inconvenience, 
 and where, from the nature of the case, there is 
 no danger of surprise, then, from the experience 
 we have had for the last eight years, I would 
 adopt the plurality rule. I can see no other dis 
 tinction in principle, than that. It lies between 
 deliberative assemblies which can vote often, and 
 which are liable to be taken by some surprise, and 
 
 between more large assemblies, which cannot re 
 sort to frequent voting without great inconven 
 ience. I am willing to make that distinction. 
 I am in favor of retaining the majority system in 
 town meetings in voting for town officers in 
 town affairs, and in the election of representatives 
 to the general court. I would, at any rate, have 
 that matter in the hands of the legislature; I 
 would not tie the hands of the legislature, and if 
 the towns found the majority principle to work 
 too much inconvenience, I would allow the legis 
 lature to establish the plurality system for them. 
 
 Now, my objection to this compromise system 
 is this : it proposes to retain the majority princi 
 ple where the reasons are the strongest against it. 
 It proposes to retain the majority in cases where 
 there can be no danger of surprise, and where, 
 from the nature of the case, a second election can 
 not be held without great inconvenience. You 
 propose, if you cannot get a majority upon the 
 popular vote, to throw the election of your gov 
 ernor and of your high State officers into the 
 legislature. Now, this very system constitutes 
 the strongest objection to the whole majority prin 
 ciple. The result of the plan submitted by the 
 Committee, will be that in your great offices, the 
 people will not elect at all ; but these officers will 
 be elected by assemblies which meet in this Hall, 
 and which were not chosen for that purpose at all. 
 I repeat it, your compromise proposes to retain the 
 majority system where the strongest reasons exist 
 for adopting the plurality system, and the result 
 of it will be to place it in the power of the Senate 
 and House of Representatives to elect all the great 
 officers of the Commonwealth. 
 
 Now, Mr. President, let we ask gentlemen who 
 advocate this plan, if the most objectionable fea 
 ture of the present system of election is not that 
 the great officers of the State are elected by the 
 legislature ? And will it not be still more objec 
 tionable under the system which you propose to 
 adopt, when a larger number of these officers are 
 made elective? There are more officers to be 
 elected by the popular vote now, by the system 
 you have provided, than there were under the 
 former Constitution. It increases the patronage 
 of the people, and in case they fail to elect, will 
 increase the patronage of your legislature ; that is 
 to say, we shall increase the evil which already 
 exists under the present system. There is now 
 nearly double the necessity for taking the power 
 from the legislature that there was under the 
 former Constitution. 
 
 For this reason, if for no other, I cannot support 
 the proposition reported by your Committee, and 
 throw into the hands of your legislature the elec 
 tion of all these officers, which you propose to 
 
144 
 
 ELECTIONS BY PLURALITY. 
 
 [61st day. 
 
 Tuesday/ 
 
 DANA WHITNEY. 
 
 [July 19th. 
 
 make elective. It is from this very system that 
 this danger of corruption and perversion of the 
 popular voice, from which we have suffered, has 
 arisen. It seems to me that this proposition of 
 compromise is not founded in principle, and that 
 we ought not to support it. Let the people of the 
 Commonwealth elect by one election, their gov 
 ernor, their lieutenant-governor, and all their 
 State officers. I believe it is the will of the people 
 of the State that they should be thus elected, and 
 that the people should not be kept in suspense for 
 four or five months after the election has taken 
 place, before they can know who will be the 
 officers of the State. 
 
 Mr. WHITNEY, of Con way, (interposing). 
 I would suggest to the gentleman for Manchester, 
 that the secretary of the Commonwealth, the 
 treasurer, and those officers of which he speaks 
 as having now been made elective, are now elected 
 by the legislature under the present Constitution, 
 so that in case of a failure to elect by the people, 
 the legislature will have no more officers to elect 
 than under the present Constitution. 
 
 Mr. DANA. The attorney-general is not. 
 
 Mr. WHITNEY. True, the attorney-general 
 is not, but the secretary, treasurer, and auditor, 
 are, and the evil of which the gentleman speaks, 
 therefore, at least, cannot be increased by the 
 system which the Committee propose. 
 
 Mr. DANA. Well, Sir, the adoption of the 
 provision, making these officers elective by the 
 people, shows one thing. It shows that it is 
 better that all these officers should be elected by 
 the people rather than by the legislature, so that 
 the gentleman s remark certainly does not affect 
 my argument. I want that the election of these 
 officers shall be taken out of the hands of the 
 legislature and put into the hands of the people. 
 We have taken the appointment of the attorney- 
 general away from the governor and given it to 
 the people. We have taken the appointment of 
 the secretary and auditor out of the hands of the 
 legislature, and yet, with the experience of the 
 last eight years before us, you propose to give this 
 appointing power back to the legislature, for that 
 will be the result of it. No gentleman can be 
 blind to the result. If you adopt this majority 
 principle, it is verbally saying that four out of five 
 times I am not certain about my arithmetic, but 
 it is somewhere about that these officers shall 
 be elected upon this floor. 
 
 Now, Mr. President, that is the first aristocratic 
 feature of this government, to say that a small 
 body of men some four hundred or five hundred 
 in number shall elect the great officers of the 
 State, and to say, that they shall not be elected by 
 the people. Sir, I am opposed to the establish 
 
 ment or continuance of any such principle. It is 
 not a question of electing those officers by a 
 majority of the people. Your compromise plan 
 does not provide for that in its practical effect. 
 You provide, that four out of five shall be elected 
 upon this floor, instead of being elected by the 
 people at all. But, gentlemen should recollect, 
 that if they elect these officers by plurality, 
 they do not vote against electing by a majority. 
 If a majority of the people of the Commonwealth 
 are in favor of any one candidate for governor, a 
 majority will elect, whether the rule be estab 
 lished, that the plurality or the majority shall 
 elect. But, if you cannot get a majority, then 
 the plurality rule provides the nearest approach 
 to a majority, that you can get. For these rea 
 sons I cannot support that part of the first of the 
 compromise resolutions. 
 
 The last portion of it, also seems to me to be 
 somewhat objectionable. It says, that in the 
 election of representatives to the legislature, a 
 majority shall be required upon the first trial, but 
 that a plurality shall prevail upon the second 
 trial. Now, if the plurality is to prevail, why 
 not adopt it at once ? Why not let it prevail at 
 the first trial ? By your proposition, in many 
 places, the first trial will be a mere tentative. The 
 people will say, that the first trial will amount to 
 nothing that they will vote for anybody just to 
 try their hands. Then, upon the second trial, 
 comes the real contest and it is not apt to be near 
 so fair a contest not so fair an expression of the 
 public opinion, as if the people knew beforehand, 
 that the first trial would settle the whole matter. 
 Now, Sir, I submit it to the judgment of gentlemen 
 better acquainted with town affairs than I am, 
 although I am somewhat acquainted with them. 
 It is not true, as the gentleman from Boston re 
 marked, that I have never been in a town meeting 
 in all my life. I lived in the town of Cambridge, 
 and attended their town meetings, until Cam 
 bridge became a city, and they would not give 
 me any more town meetings to attend. I say, I 
 appeal to gentlemen who are conversant with the 
 proceedings of town affairs, if it is not true, that 
 if the people know beforehand, that the first vote 
 is to be decisive, they would not give a fuller vote, 
 and whether we should not have more fully an 
 expression of the popular voice, than upon any 
 second trial ? Why, after the first vote is taken, 
 a few of the leading politicians in the towns will 
 settle the matter among themselves. When the 
 moderator announces the vote, that there is no 
 choice, a majority being required upon the first 
 ballot, and another ballot is immediately opened, 
 what is the consequence ? The consequence must 
 be, that a few of the leading men will put their 
 
61st day.] 
 
 ELECTIONS BY PLURALITY. 
 
 145 
 
 Tuesday,] 
 
 DANA TRAIN KEYES WILSON SCIIOULER ALLEN. 
 
 [July 19th. 
 
 heads together, agree upon some candidate, and he 
 will go right in. Will not that be the result ? 
 The second trial will follow so closely upon the 
 first, that the people will not have time to consult 
 together at all ; no time for deliberation ; and so 
 the whole matter will be settled by a few of the 
 leading politicians. It seems to me, therefore, 
 that as to the towns, we had better not tie the 
 hands of the legislature. I think we had better 
 allow them to remain as they are, for the present, 
 but to leave the matter in the hands of the legis 
 lature, so that, if in the course of time, they get 
 tired of their majority elections, they can come to 
 the legislature, and the legislature can release 
 them, and give them the plurality system. I am 
 willing that they should have the plurality rule, 
 if it should be found expedient for them ; but I 
 think it would not be a wise course for us to tie 
 their hands, and the hands of the legislature, in 
 relation to the matter, by declaring in the Consti 
 tution, that they shall elect by plurality. 
 
 Now, I submit to the Convention, whether it 
 would not be the simplest thing after all, and 
 whether it would not be better to adopt the 
 plurality system for everything except town 
 affairs, and leave that matter in the hands of the 
 legislature. I had prepared an amendment to 
 this effect, but of course it is not in order to offer 
 it now. I hope, however, that the motion to 
 reconsider will prevail, and that something like 
 that result will be reached that we shall adopt 
 the plurality plan throughout, except in regard to 
 the town elections, and that they may be left to 
 the legislature to provide. 
 
 Mr. TRAIN, of Framingham. I move the 
 previous question. 
 
 Mr. KEYES, for Abington. I hope the pre 
 vious question will not be sustained. It is very 
 easy as we have just heard, for gentlemen to 
 adopt a principle and then to suit their plans to it. 
 There is another principle which should be illus 
 trated, if we had an opportunity, and it is a 
 principle which happens to be in accordance with 
 the whole scheme, as I said before 
 
 The PRESIDENT. The question is upon 
 sustaining the previous question. 
 
 Mr. KEYES. I only want to say this, that 
 this is not the time to take the vote ; I think this 
 is a very important question 
 
 Mr. TRAIN. I rise to a question of order, 
 that the gentleman is not discussing the previous 
 question. 
 
 The PRESIDENT. The Chair does not un 
 derstand the gentleman as yet to be debating the 
 main question. 
 
 Mr. KEYES. I believe that this Convention 
 thoroughly understand this question, and the 
 
 10 3 
 
 principles upon which this plan was adopted in 
 Committee. 
 
 The PRESIDENT. It is not in order for the 
 gentleman to discuss the merits of the question. 
 
 Mr. KEYES. I am stating the reasons why 
 discussion should be had, and why the previous 
 question should not be sustained at this time. 
 Drummers have been sent here to assist my friend 
 for Manchester (Mr. Dana,) to help the Whig 
 party to sustain its life ; and the reason why I 
 hope the previous question will not be sustained 
 is, if the case was thoroughly understood, that 
 the question would not be decided as it might be 
 under other circumstances. 
 
 Mr. WILSON, of Natick. I wish to say a 
 single word in relation to this motion for the pre 
 vious question, which has been moved by my 
 very adroit and skilful friend from Framingham, 
 (Mr. Train). I wish to say nothing in regard to 
 this matter which is not distinctly understood by 
 the members of this Convention. The delegate 
 for Abington has hinted at the matter. I wish to 
 say that one of the reasons why the previous 
 question should not be taken at this time, is this : 
 we now see the advantage, to which allusion has 
 so often been made, that the city of Boston has 
 upon this floor. I wish simply 
 
 The PRESIDENT. The Chair would suggest 
 to the gentleman from Natick, that he is entering 
 upon a wider field of discussion than the motion 
 for the previous question would warrant. 
 
 Mr. WILSON. I wish simply to say in rela 
 tion to this matter, drummers have been out, and 
 gentlemen from sick beds are here ; and we are 
 to have the advantage of the votes of these gen 
 tleman, at this particular time, for the first time 
 in the session ; and we are to be cut off from the 
 discussion of this question. Debate is to be 
 stopped, and the previous question forced upon 
 us at a particular time to serve a particular pur 
 pose. 
 
 Mr. SCHOULER, of Boston. I hope the 
 previous question will be sustained. This is a 
 question simply upon a reconsideration. If we 
 vote in favor of a reconsideration, the whole ques 
 tion is open for discussion, and as much discus 
 sion as the gentleman for Abington and the gen 
 tleman from Natick could desire. It is a mere 
 matter of reconsideration, and I hope, therefore, 
 that the motion will prevail. 
 
 Mr. ALLEN, of Worcester. I was gone out 
 of the Convention a short time, and on returning, 
 to my great surprise, I find this state of things 
 existing. Before I went out, upon one side of 
 the House there was an earnest desire that there 
 might be free opportunity to discuss all important 
 questions here, and that no limitation should be 
 
146 
 
 ELECTIONS BY PLURALITY. 
 
 [61st day. 
 
 Tuesday, 
 
 ALLEX LOUD WHITNEY HILLARD. 
 
 [July 19th. 
 
 imposed upon debate. In accordance with the 
 wish of gentlemen upon that side of the House, 
 and expressed in various quarters by their leading 
 men, I thought we were to have a free and full 
 discussion. But, to my astonishment, I find 
 those same gentlemen pressing, at this moment, 
 the demand for the previous question. If they 
 insist upon it, I trust that they will not complain 
 hereafter, if the majority should adopt rules, such 
 as may suit them, upon the subjects discussed, 
 and rigidly adhere to them. I think that if mem 
 bers of this Convention have occasion to look 
 back to the changes of opinion which have been 
 expressed on other occasions, and manifested from 
 time to time by that same minority, they will see, 
 in the sudden change which has taken place in all 
 their views this very morning, and this very hour, 
 upon the subject of free discussion, that some mo 
 tive, not quite so apparent to all, may exist, for 
 pressing the previous question at this time. I 
 hope it will not be urged, because upon the right 
 decision of the question now under consideration, 
 I will not say how it should be decided, may 
 depend the whole result of this Convention ; for 
 gentlemen may rely upon it, that this is a ques 
 tion of vital importance to the business we have 
 before us, and the adoption or rejection of our 
 labors may depend upon our harmonious action 
 in this matter. In a Convention so equally di 
 vided in regard to this subject, it seems to me the 
 most unfitting time that has occurred, from the 
 commencement of our deliberations, for the adop 
 tion of any rule which shall put an end to all 
 debate. 
 
 Mr. LORD, of Salem. There is one consider 
 ation which influences me very strongly to desire 
 a vote upon this question. I wish to see how 
 gentlemen feel under it. That is the only con 
 sideration which induces me to vote for the pre 
 vious question. When debate has been stopped, 
 over and over again, upon a subject which had 
 not been half discussed, gentlemen felt remarkably 
 well, and I desire to see how they feel now, when 
 there is a proposition to stop debate upon a sub 
 ject which has been debated more than all others 
 put together. The principle I hold to, in re- 
 regard to this matter, is, that debate, like trade, 
 should regulate itself, and that when the subject 
 is exhausted, debate will cease. That is the prin 
 ciple upon which I act. Now and then gentle 
 men will feel it necessary to talk a little against 
 time. For example, if it should be deemed in 
 expedient to take the yeas and nays fifteen min 
 utes before the hammer should come down for 
 the hour of adjournment, it would be well enough 
 to talk up to that time, because you cannot con 
 veniently take the vote at that time. It has been 
 
 suggested here that the House is fuller, and that 
 there are more gentlemen to vote here now than 
 there were before ; but this fact, to my mind, is 
 no argument against the previous question. If 
 there were three hundred and twenty gentlemen 
 present when the question was taken before, and 
 there should happen to be three hundred and fifty 
 here now, I do not think that is any reason why 
 we should not vote now in preference to voting 
 in a thin House. 
 
 The PRESIDENT. The Chair would suggest 
 to the gentleman from Salem, as he did to the 
 gentleman from Natick, that he is entering upon 
 a wider field of remark than the motion for the 
 previous question would warrant. 
 
 Mr. LORD. I was not replying to what the 
 gentleman from Natick said about drummers, but 
 only speaking to what the gentleman said about 
 there being more persons here now than there 
 were before. 
 
 Mr. WHITNEY, of Conway. I think the 
 previous question should not prevail at this time, 
 because the main question is a reconsideration of 
 the vote which we have just taken. We have 
 had no time to review and reconsider the ques 
 tion, and we do need the time until to-morrow 
 for the examination of this question. The pre 
 vious question, if sustained, will precipitate this 
 important question upon us now, at a time when 
 we are unprepared for it. I think, after a tie 
 vote upon this matter, and which has been de 
 cided by the vote of the President of the Conven 
 tion, that we do need twenty-four hours for a con 
 sideration of the main question, and that gentle 
 men should not press a reconsideration of this 
 matter upon the spur of the moment. I hope the 
 previous question will not be sustained by the 
 honest and fair-minded men of this Convention. 
 I ask it as a privilege, so that I may reflect upon 
 this question until to-morrow. I may change my 
 vote upon this subject, upon farther considera 
 tion, and I not know what I may do to-morrow. 
 I hope gentlemen will give us all an opportunity 
 of getting more light upon this matter, and for 
 that reason I hope the previous question will not 
 be sustained. 
 
 Mr. HILLARD, of Boston. It occurs to me, if 
 I understand the operation of the motion to re 
 consider, that the delegate from Conway will gain 
 the very advantage which he desires. If the mo 
 tion to reconsider prevails, the whole subject is 
 open for discussion and consideration as it was in 
 the early part of the day. I would suggest, by 
 way of meeting the wishes of all, that we shall 
 agree to take the question to reconsider by yeas 
 and nays, and if that motion should prevail, that 
 we assign some hour to-morrow for taking the 
 
61st day.] 
 
 ELECTIONS BY PLURALITY. 
 
 147 
 
 Tuesday,] 
 
 ALLEN TRAIN BRIGGS GRAY. 
 
 [July 19th. 
 
 question upon the amendment, so that there may 
 be no surprise ; for I take it, the difficulty in this 
 matter is, that there is an uneasy feeling in the 
 minds of those who were absent, that they had 
 not voted, and all parties, whatever may be their 
 opinions, will be content with the result, if they 
 have as full expression of the sentiment of the 
 Convention as it is possible to get. 
 
 Mr. ALLEN, of Worcester. I move that 
 when the vote is taken on the motion for the 
 previous question, it be taken by yeas and 
 nays. 
 
 Mr. TRAIN, of Framingham. I merely wish 
 to set myself right upon this matter of the pre 
 vious question. I am not aware that I ever 
 moved the previous question before in my life, 
 although I have had a little legislative experience, 
 not enough, however, to acquire the reputation 
 for adroitness which my friend from Natick, (Mr. 
 Wilson,) would give to me ; but then it is a habit 
 in our country, to pat each other upon the shoul 
 ders, and call each other good fellows. [Laugh 
 ter.] I rose to address the Convention amid cries 
 all over the House, for the question, and like an 
 adroit lawyer, I covered my retreat by saying that 
 I rose to move the previous question, which I 
 thought would come from me with exceeding good 
 grace under the circumstances. [Laughter.] Then 
 my friend for Abington, (Mr. Keyes,) rose, under 
 some degree of excitement, proper excitement I 
 will admit, and desired to make a speech upon 
 this question. With the utmost degree of fairness, 
 I then offered to withdraw my motion, if, after 
 he had made his speech, which I wanted to hear, 
 he would renew the motion ; but he would not 
 do that. When you cannot suit others, it is 
 the best way to suit yourself; and, therefore, 
 although I have been interceded with to withdraw 
 the motion, I shall persist in adhering to it, be 
 cause I think the motion was made fairly and 
 properly. If the Convention choose to reconsider, 
 the whole discussson will be then opened, and 
 those gentlemen who have not spoken, or who 
 wish to repeat their old speeches, can have the 
 opportunity of so doing. Having stated the rea 
 sons which induced me to make the motion I did, 
 and having, I trust, set myself right before the 
 Convention, and thanking the gentleman from 
 Natick, (Mr. Wilson,) for the compliment which 
 he has bestowed upon me, I have said all that I 
 desire to say. 
 
 Mr. BRIGGS, of Pittsfield. I would like to 
 know, if we commence calling the yeas and nays, 
 we lose our dinner : [Laughter.] Mr. Pres 
 ident : I shall most certainly vote against the 
 previous question, whether the yeas and nays are 
 taken upon it or not. I feel a little as my friend 
 
 from Salem, (Mr. Lord,) does. Our friends mxist 
 feel what it is to be skinned themselves. We have 
 got used to it, so that it hardly makes us smart 
 when the skin is peeled off. But I do not believe 
 in the previous question except upon extraordinary 
 occasions, and I do not think this is one. We 
 have a full house now, and I hope we shall have 
 a vote this afternoon. If we take the question 
 now and should happen to succeed in it, it settles 
 nothing. Sir, no snap judgment here, is worth 
 anything, and it should not be sought by any 
 party or the friends of any measure. On all 
 important questions, I hold that we should let 
 debate run its course. It is very important that 
 it should, and more important that questions 
 should be settled right, than it is that we should 
 settle them before dinner, or to-day, or to-mor 
 row. I wish we could agree upon some time to 
 take this question, and then upon some time to 
 take the main question, if it is reconsidered, and 
 then see that our friends in the city are all here, 
 for I do not think it would be unconstitutional 
 to have them all here once to vote, and I do not 
 think it would be an alarming concentration of 
 power for them all to be here once during this 
 Convention. I wish, for these reasons, and others 
 which might be stated, that we might, by common 
 consent, fix upon some time, either this afternoon 
 or some other, when we will take the vote on 
 this question on the motion, so that we may have 
 a full Convention and a fair vote, and one which 
 will settle the question satisfactorily. 
 
 Mr. GRAY, of Boston. I do not feel disposed 
 to vote for the previous question, and I need not 
 travel over the reasons which have been generally 
 given by other gentlemen ; Sir. I have been against 
 limiting debate in any way, either by the previ 
 ous question or by fixing an hour for taking the 
 question, because I have yet to see a single in 
 stance in which there has been any speaking, to 
 to any extent, against time. But I cannot agree 
 with the suggestion of my colleague, to take the 
 question without the yeas and nays, because he 
 will recollect that if the motion for reconsideration 
 succeeds, it is very well. The whole question 
 will be open ; but suppose, in taking the question 
 upon the motion for reconsideration by yeas and 
 nays, it is rejected ; that vote is final. Now, what 
 I suggest is this : that, under the circumstances, 
 the motion for the previous question should be 
 withdrawn. Then I am ready to go with my 
 friend from Pittsfield and fix some time to take 
 the question, which will give gentlemen an op 
 portunity to debate it to the fullest extent ; and 
 when that time comes, if farther debate is really 
 wished, I hope farther time will be given. I 
 should be very glad to see every one of my col- 
 
148 
 
 PERPETUATION OF RECORDS, &c. 
 
 [61st day. 
 
 Tuesday,] 
 
 LORD HOOPER BIRD WILSON. 
 
 [July 19th. 
 
 leagues, as well as both of the intelligent and 
 respectable members from Pittsfield, and every 
 member of this Convention, present, when the 
 vote is taken ; and if I knew of any drum to 
 be beaten which would bring them all in, for the 
 first time in my life, I would lend a hand at the 
 work. 
 
 Mr. LORD, of Salem. It is my impression, 
 that a motion for the previous question, cannot 
 survive an adjournment. If I am right, inas 
 much as we have ordered the yeas and nays on 
 the motion to take the previous question, I will, 
 for the first time in my life, move an adjourn 
 ment. I ask, if the motion for the previous 
 question lives over an adjournment ? 
 
 The PRESIDENT. It does not. 
 
 Mr. LORD. Then I move that the Conven 
 tion adjourn. 
 
 The motion was agreed to, and the Convention 
 adjourned until three o clock, P. M. 
 
 AFTERNOON SESSION. 
 The Convention reassembled at three o clock. 
 
 Reconsideration. 
 
 Mr. HOOPER, of Fall River, moved a re 
 consideration of the vote, by which the resolves 
 relating to the limitation of the incorporation of 
 towns, was indefinitely postponed. 
 
 The motion was placed upon the Orders of the 
 Day, to be considered to-morrow. 
 
 Mr. HOOPER. I move that the rule be sus 
 pended, so that the motion to reconsider may be 
 considered at this time. 
 
 Mr. ASPINWALL, of Brookline. I hope 
 that the rule will not be suspended, but that we 
 shall go on with the unfinished business of the 
 morning. 
 
 Mr. LORD, of Salem. I think it is hardly 
 worth while to change the order of business, un 
 less there be some special reason for doing so. If 
 the order is to be changed, it ought to be known 
 beforehand. I therefore ask, or shall, before I sit 
 down, that the question be taken by yeas and 
 nays. 
 
 The PRESIDENT. The motion to suspend 
 the rule, is not debatable. 
 
 Mr. LORD. Then, inasmuch as we have, at 
 present, rather a thin House, if the gentleman 
 does not withdraw his motion, I must ask for 
 the yeas and nays. 
 
 Mr. HOOPER. I supposed there would be 
 no objection, and that the matter would not give 
 rise to debate ; but, as objection is made, I will 
 withdraw my motion. 
 
 The motion was accordingly withdrawn. 
 
 Perpetuation of the Records. 
 
 Mr. BIRD, of Walpole, from the Committee 
 appointed under an order of May 5th, to consider 
 and report what measures were necessary for the 
 Convention to adopt, to continue and perpetuate 
 its records, made the following Report : 
 
 COMMONWEALTH OF MASSACHUSETTS. 
 
 In Convention, July 19, 1853. 
 The Committee appointed under the order of 
 the Convention of May 5th, viz. : " Ordered, 
 That a Committee of five be appointed, to con 
 sider and report what measures it is desirable for 
 the Convention to adopt, to preserve and perpet 
 uate its Records," have attended to that duty, 
 and submit the following resolves. 
 For the Committee, 
 
 F. W. BIKD, Chairman. 
 
 Resolved, That at the close of the session, the 
 Secretaries of the Convention deposit the original 
 Journals, together with the papers of the Con 
 vention, in the office of the Secretary of State. 
 
 Resolved, That William S. Robinson prepare 
 an Index to the Journal, and procure two thou 
 sand copies of the Journal and Index to be 
 printed and boinid, on such terms and in such 
 manner as shall be approved by the Committee 
 on the Preservation of the Records, and that he 
 be paid four dollars a day for his services therein. 
 
 Resolved, That his Excellency the Governor 
 be requested to draw his warrant on the treasury 
 for such expenses incurred in the execution of 
 the preceding Resolves, as shall be approved by 
 the Committee on the Preservation of the Records. 
 
 Resolved, That the Secretary of the Common 
 wealth be requested to distribute copies of the 
 Journal to each member of the Convention, and 
 to all persons and public bodies mentioned in 
 chapter 2, section 2, of the Revised Statutes, 
 excepting members of the Legislature. 
 
 The Report having been read, Mr. BIRD 
 moved that it be considered now. 
 
 The motion was agreed to. 
 
 The question being taken on the adoption of the 
 Report of the Committee, it was decided in the 
 affirmative. 
 
 Assignment of time for taking the Question. 
 
 Mr. WILSON, of Natick, moved that ten o 
 clock, to-morrow, be assigned for taking the ques 
 tion on the resolves on the subject of Elections by 
 Plurality. 
 
 Pending which motion, Mr. LORD, of Salem, 
 moved that the Convention proceed to the con 
 sideration of the Orders of the Day, which being 
 a privileged motion, had precedence over the mo 
 tion of the gentleman from Natick. And the 
 question being taken, it was decided in the affirm- 
 
61st day.] ELECTIONS BY PLURALITY. 
 
 149 
 
 Tuesday,] YEAS NAYS. 
 
 [July 19th. 
 
 ative. And the Convention thereupon proceeded 
 to consider the 
 
 Loud, Samuel P. 
 Miller, Seth, Jr. 
 
 Stevens, Granville 
 Stevens, Joseph L., Jr. 
 
 
 Mixter, Samuel 
 
 Storrow, Charles S. 
 
 Orders of the Day, 
 
 Morey, George 
 
 Sumner, Increase 
 
 
 Morss, Joseph B. 
 
 Talbot, Thomas 
 
 The first item being the resolves on the subject 
 
 Morton, Marcus 
 
 Taylor, Ralph 
 
 of 
 
 Morton, Marcus, Jr. 
 
 Thomas, John W. 
 
 
 Noyes, Daniel 
 
 Tileston, Edmund P. 
 
 Elections by Plurality. 
 
 Oliver, Henry K. 
 
 Train, Charles R. 
 
 The pending question being on the motion of 
 
 Orcutt, Nathan 
 Paige, James W. 
 
 Tyler, John S. 
 Upham, Charles W. 
 
 the gentleman from Otis, Mr. Simmer, to recon 
 
 Park, John G. 
 
 Upton, George B. 
 
 sider the vote by which the amendment offered by 
 
 Parker, Adolphus G. 
 
 Viles, Joel 
 
 the gentleman from Boston, (Mr. Schouler,) had 
 
 Peabody, George 
 
 Walcott, Samuel B. 
 
 been rejected. 
 Upon this motion the yeas and nays, having 
 
 Pomroy, Jeremiah 
 Powers, Peter 
 Putnam, John A. 
 
 Wales, Bradford L. 
 Walker, Samuel 
 Weeks, Cyrus 
 
 been previously ordered, were taken, with the 
 
 Rantoul, Robert 
 
 Wetmore, Thomas 
 
 following resxilt yeas, 146 ; nays, 188 : 
 
 Read, James 
 
 Wheeler, WiUiam F. 
 
 
 Reed, Sampson 
 
 White, Benjamin 
 
 YEAS. 
 
 Sargent, John 
 
 Wilbur, Darnel 
 
 Adams, Benjamin P. Gilbert, Wanton C. 
 Aldrich, P. Emory Gould, Robert 
 Andrews, Robert Goulding, Dalton 
 Aspinwall, William Goulding, Jason 
 Atwood, David C. Gray, John C. 
 Ayres, Samuel Green, Jabez 
 
 Schouler, William 
 Sikes, Chester 
 Sleeper, John S. 
 Souther, John 
 Stetson, Caleb 
 Stevens, Charles G. 
 
 Wilder, Joel 
 Wilkins, John H. 
 Wilkinson, Ezra 
 Williams, J. B. 
 Wilson, Milo 
 Wood, Nathaniel 
 
 Barrows, Joseph Greenleaf, Simon 
 
 NAYS. 
 
 Beebe, James M. Hale, Artemas 
 
 
 Bigelow, Jacob Hale, Nathan 
 
 Abbott, Josiah G. 
 
 Clark, Ransom 
 
 Bliss, Gad O. Hammond, A. B. 
 
 Adams, Shubael P. 
 
 Clarke, Stillman 
 
 Bradbury, Ebenezer Hawkes, Stephen E. 
 
 Allen, Charles 
 
 Cleverly, William 
 
 Braman, Milton P. Hayward, George 
 
 Allen, James B. 
 
 Crane, George B. 
 
 Breed, Hiram N. Heard, Charles 
 
 Allen, Joel C. 
 
 Cross, Joseph W. 
 
 Brewster, Osmyn Henry, Samuel 
 
 Allen, Parsons 
 
 Cushman, Henry W. 
 
 Briiiley, Francis Hersey, Henry 
 
 Alley, John B. 
 
 Cushman, Thomas 
 
 Briggs, George N. Hewes, James 
 
 Alvord, D. W. 
 
 Cutler, Simeon N. 
 
 Bullock, Rufus Hey wood, Levi 
 
 Baker, Hillel 
 
 Davis, Charles G. 
 
 Bumpus, Cephas C. Hillard, George S. 
 
 BaDard, Alvah 
 
 Davis, Ebenezer 
 
 Carter, Timothy W. Hindsdale, William 
 
 Ball, George S. 
 
 Davis, Isaac 
 
 Chandler, Amariah Hobart, Aaron 
 
 Barrett, Marcus 
 
 Day, Gilman 
 
 Chapin, Chester W. Hopkinson, Thomas 
 
 Bates, Eliakim A. 
 
 Dean, Silas 
 
 Choate, Rufus Hubbard, William J. 
 
 Bates, Moses, Jr. 
 
 Duncan, Samuel 
 
 Coggin, Jacob Hunt, William 
 
 Bennett, William, Jr. 
 
 Dunham, Bradish 
 
 Cogswell, Nathaniel Huntington, Asahel 
 
 Bennett, Zephaiiiah 
 
 Durgin, John M. 
 
 Cole, Sunnier Huntington, Charles P. 
 
 Bigelow, Edward B. 
 
 Eames, Philip 
 
 Conkey, Ithamar Hurlburt, Samuel A. 
 
 Bird, Francis W. 
 
 Eaiie, John M. 
 
 Cooledge, Henry F. Hyde, Benjamin D. 
 
 Boutwell, Geo. S. 
 
 Easland, Peter 
 
 Crockett, George W. Jackson, Samuel 
 
 Booth, William S. 
 
 Eaton, Calvin D. 
 
 Crosby, Leander James, William 
 
 Boutwell, Sewell 
 
 Edwards, Elisha 
 
 Crowell, Seth Jenkins, John 
 
 Bradford, William J. A. 
 
 Edwards, Samuel 
 
 Cummings, Joseph Jenks, Samuel II. 
 
 Bronson, Asa 
 
 Fay, Sullivan 
 
 Dana, Richard H., Jr. Johnson, John 
 
 Brown, Alpheus R. 
 
 Fellows, James K. 
 
 Davis, John Kellogg, Giles C. 
 
 Brown, Artemas 
 
 Fiske, Emery 
 
 Davis, Solomon Kingman, Joseph 
 
 Brown, Hammond 
 
 Fisk, Lyman 
 
 Dawes, Henry L. Kinsman, Henry W. 
 
 Brown, Hiram C. 
 
 Fitch, Ezekiel W. 
 
 Deming, Elijah S. Knight, Hiram 
 
 Brownell, Joseph 
 
 Foster, Abram 
 
 Denton, Augustus Knight, Jefferson 
 
 Bryant, Patrick 
 
 Fowle, Samuel 
 
 Easton, James, 2d Knight, Joseph 
 
 Buck, Asahel 
 
 Fowler, Samuel P. 
 
 Eaton, Lilley Kuhn, George, H. 
 
 Cady, Henry 
 
 Freeman, James M. 
 
 Ely, Homer Ladd, John S. 
 
 Caruthers, William 
 
 French, Charles A. 
 
 Eustis, WiUiam T. Leland, Alden 
 
 Case, Isaac 
 
 French, Samuel 
 
 Farwell, A. G. Lincoln, Frederic W., Jr. 
 
 Chapin, Daniel E. 
 
 Gale, Luther 
 
 Foster, Aaron Littleneld, Tristram 
 
 Chapin, Henry 
 
 Gardner, Johnson 
 
 French, Charles H. Livermore, Isaac 
 
 Churchill, J. McKean 
 
 Gates, Elbridge 
 
 Frothingham, Rich d, Jr.Lord, Otis P. 
 
 Clarke, Alpheus B. 
 
 Gilbert, Washington 
 
 Gardner Henry J. Lothrop, Samuel K. 
 
 Clark, Henry 
 
 Giles, Charles G. 
 
150 
 
 ELECTIONS BY PLURALITY. [61st day. 
 
 Tuesday,] 
 
 NAYS ABSENT WILSON. [July 19th. 
 
 Giles, Joel 
 
 Partridge, John 
 
 Butler, Benjamin F. Nayson, Jonathan 
 
 Gooding, Leonard 
 
 Peabody, Nathaniel 
 
 Childs, Josiah Norton, Alfred 
 
 G nives John W. 
 
 Pease, Jeremiah, Jr. 
 
 Clark, Salah Paine, Henry 
 
 (ill- wold, Josiah W. 
 
 Peimirnan, John 
 
 Cole, Lansing J. Parker, Joel 
 
 Griswold, Whiting 
 
 Perkins, Jesse 
 
 Cook, Charles E. Parker, Samuel D. 
 
 Hartley, Samuel P. 
 
 Perkins, Noah C. 
 
 Copeland, Benjamin F. Parsons, Thomas A. 
 
 Hallett, B. F. 
 
 Phelps, Charles 
 
 Cressv, Oliver S. Payson, Thomas E. 
 
 II:t]) j;ood, Lyman W. 
 
 Phiimcy, Silvanus B. 
 
 Crittenden, Simeon Perkins, Daniel A. 
 
 JIapgood, Seth 
 
 Pierce, Henry 
 
 Crowninshield, F. B. Perkins, Jonathan C. 
 
 Haskins, William 
 
 Pool, James M. 
 
 Curtis, Wilber Plunkett, William C. 
 
 Hathaway, Elnathan P. 
 
 Rawson, Silas 
 
 Davis, Robert T. Preston, Jonathan 
 
 Hay den, Isaac 
 
 Rice, David 
 
 Dehon, William Prince, F. O. 
 
 Hazewell, Charles C. 
 
 Richards, Luther 
 
 Denison, Hiram S. Putnam, George 
 
 Heath, Ezra 2d, 
 
 Richardson, Daniel 
 
 DeWitt, Alexander Ring, Elkanah, Jr. 
 
 He\ves, William II. 
 
 Richardson, Nathan 
 
 Doane, James C. Rockwell, Julius 
 
 Hobart, Henry 
 
 Richardson, Samuel II. 
 
 Dorman, Moses Rockwood, Joseph M. 
 
 Hobbs, Edwin 
 
 Rogers, John 
 
 Ely, Joseph M. Sampson, George R. 
 
 Hood, George 
 
 Ross, David, S. 
 
 French, Rodney Sherman, Charles 
 
 Hooper Foster 
 
 Royce, James C. 
 
 Gooch, Daniel W. Simmons, Perez 
 
 Howland, Abraham H. 
 
 Sanderson, Amasa 
 
 Greene, William B. Stevenson, J. Thomas 
 
 Hovt, Henry K. 
 
 Sanderson, Chester 
 
 Hall, Charles B. Stutson, William 
 
 Hunt, Charles E. 
 
 Sheldon, Luther 
 
 Harmon, Phineas Sumner, Charles 
 
 Huilbut, Moses C. 
 
 Sherril, John 
 
 Haskell, George Swain, Alanson 
 
 Ide, Abijah M., Jr. 
 
 Simonds, John W. 
 
 Holder, Nathaniel Taber, Isaac C. 
 
 Jacobs, John 
 
 Smith, Matthew 
 
 Houghton, Samuel Thayer, Joseph 
 
 Kendall, Isaac 
 
 Sprague, Melzar 
 
 Howard, Martin Turner, David P. 
 
 Keyes, Edward L. 
 
 Spooner, Samuel W. 
 
 Huntington, George H. Tower, Ephraiai 
 
 Kimball, Joseph 
 
 Stacy, Eben H. 
 
 Kellogg, Martin R. Tyler, William 
 
 Knowlton, J. S. C. 
 
 Stevens, William 
 
 Knowlton, Charles L. Wallace, Frederick T. 
 
 Knowlton, William H. 
 
 Stiles, Gideon 
 
 Langdoii, Wilber C. Warner, Samuel, Jr. 
 
 Knox, Albert 
 
 Strong, Alfred L. 
 
 Lawton, Job G., Jr. White, George 
 
 Ladd, Gardner P. 
 
 Taft, Arnold 
 
 Lowell, John A. Woods, Josiah B. 
 
 Lawrence, Luther 
 
 Thayer, Willard, 2d 
 
 Marvin, Theophilus R. Wood, William H. 
 
 Lincoln, Abishai 
 
 Thompson, Charles 
 
 Nash, Hiram 
 
 Little, Otis 
 
 Tilton, Abraham 
 
 
 Loomis, E. Justin 
 
 Tilton, Horatio W. 
 
 Absent and not voting, 85. 
 
 Marble, William P. 
 
 Turner, David 
 
 
 Marcy, Laban 
 
 Underwood, Orison 
 
 So the motion did not prevail. 
 
 Marvin, Abijah P. 
 
 Vinton, George A. 
 
 The question recurred on the motion of the 
 
 Mason, Charles 
 
 W r allis, Frecland 
 
 gentleman from Freetown, (Mr. Hathaway,) to 
 
 Header, Reuben 
 
 Walker, Amasa 
 
 amend the third resolve so as to provide that rep 
 
 Merritt, Simeon 
 Monroe, James L. 
 Moore, James M. 
 
 Ward, Andrew H. 
 Warner, Marshal 
 Waters, Asa H. 
 
 resentatives in the general court be, hereafter, 
 chosen as by law shall be established. 
 
 Morton, Elbridge G. 
 
 Weston, Gershom B. 
 
 The question was taken, and the amendment 
 
 Morton, William S. 
 
 Whitney, Daniel S. 
 
 was rejected. 
 
 Newman, Charles 
 
 Whitney, James S. 
 
 Mr. WILSON, of Natick. I now move to 
 
 Nichols, William 
 Nute, Andrew T. 
 
 Wilbur, Joseph 
 Williams, Henry 
 
 amend the third resolve by substituting the fol 
 
 Obcr, Joseph E. 
 
 Wilson, Henry 
 
 lowing : 
 
 Orne, Benjamin S. 
 Osgood, Charles 
 Packer, E. Wing 
 Paine, Benjamin 
 Parris, Jonathan 
 Parsons, Samuel C. 
 
 Wilson, Willard 
 Winn, Jonathan B. 
 Winslow, Levi M. 
 Wood, Charles C. 
 Wood, Otis 
 Wright, Ezckiel 
 
 Resolved, That the Constitution be so amended 
 as to provide that in all elections of representa 
 tives to the general court, when no election is 
 effected on the first trial, the meetings may be 
 adjourned, from time to time, until the meeting of 
 the legislature to which the said representatives 
 
 
 are to be chosen, provided that no one adjourn 
 
 AJJSENT. 
 
 ment shall be for a longer time than six days. 
 
 Abbott, Alfred A. 
 
 Beal, John 
 
 
 Allis, Josiah 
 
 Hell, Luther V. 
 
 Mr. WILSON, of Natick. I will detain the 
 
 Appleton, William 
 
 Bishop, Henry W. 
 
 Convention but a few moments on this question. 
 
 Austin, George 
 Bancroft, Alpheus 
 Banks, Nathaniel P., Jr. 
 
 Blagden, George W. 
 Bliss, Willam C. 
 Brown, Adolphus F. 
 
 I am willing, although I am in favor of adhering 
 to the majority system, to depart from that system 
 
 Bartlett, Russel 
 
 Brownell, Frederick 
 
 under the pressure of necessity. By the Report of 
 
 Bartlett, Sidney 
 
 Bullen, Amos H. 
 
 the Committee, senators are to be chosen by the 
 
 Beach, Erasmus D. 
 
 Burlingame, Anson 
 
 plurality rule, and county and district officers are 
 
61st day.] 
 
 ELECTIONS BY PLURALITY. 
 
 151 
 
 Tuesday,] 
 
 WILSON HOOPER. 
 
 [July 19th. 
 
 also to be chosen by that rule. I see a necessity 
 for this, and I am willing to acquiesce in it. But 
 I see no necessity for making the representatives 
 and town officers elected by the plurality rule ; 
 none whatever. Gentlemen may say that it is 
 necessary in order to secure a representation from 
 all the towns in the Commonwealth. I say to 
 gentlemen, you cannot secure a representation by 
 the plurality system. It is competent for the 
 towns of the Commonwealth, when the voters are 
 assembled together, to vote not to send a repre 
 sentative ; and if there be three or four political 
 organizations in those towns, and if the plurality 
 rule prevails, the minorities will unite and vote 
 not to send, without any trial at all, or after trying 
 once under the majority system, which the reso 
 lutions propose to retain. I say, therefore, to the 
 friends of the plurality system, you certainly 
 gain nothing by its application to the election of 
 representatives ; nothing, whatever. You may 
 adopt that rule if you please ; but you cannot 
 force the minorities in any of the towns of this 
 Commonwealth to elect a man under the plurality 
 rule. Now, adhere to the majority principle in 
 town elections, and in the election of representa 
 tives ; take off all constitutional restraints ; allow 
 the towns to adjourn from, day to day, or from 
 one day to another, not exceeding six days ; to 
 call new meetings at their pleasure, from the time 
 the annual meeting is held to the time of the 
 meeting of the legislature, and then, if there be a 
 necessity, there will be a union of men in those 
 towns, and they will elect representatives ; and 
 in my judgment, under the majority system, you 
 will secure as full a representation from the towns 
 in this Commonwealth as you can get by the 
 plurality rule, because you cannot take from the 
 people the power to vote not to send, if they 
 choose to do it, under the plurality rule. They 
 will exercise that power. Then let this system 
 stand as a compromise. 
 
 I understand that this was the position of 
 affairs when the question was sent to the Com 
 mittee the second time. A vote, and the largest 
 vote taken during the Convention, was that upon 
 the State officers, by which it was required that 
 they should be chosen by a majority, and it was 
 also agreed by the same vote that senators, county 
 and district officers, should be elected by a plu 
 rality ; but that in the election of representatives 
 and town officers, a majority should be required. 
 I arn ready to stand by that vote, as a compro 
 mise. But I do not like this present Report. 
 Gentlemen tell us this is a compromise. What 
 kind of a compromise is it ? Why, we agree that 
 your Constitution shall say that the senators shall 
 be elected by a plurality ; we agree to elect repre 
 
 sentatives on the second trial, and all the town 
 officers on the second trial by a plurality. Then 
 we have abandoned the majority rule altogether, 
 as far as the principle is concerned, and we have 
 simply saved the principle so as to apply it to six 
 officers, to be elected by the people of the whole 
 State. 
 
 The gentleman from Salem, (Mr. Lord,) told 
 us that he saw through this plan. That gentle 
 man is very keen-sighted, and sees all that is to be 
 seen. He sees, or thinks that he sees, the reason 
 why this plan is made. It carries on the face of 
 it something that looks very much like an arrange 
 ment for party ends. But, Sir, let us have the 
 representatives and the town officers elected by 
 the majority system. The election of these offi 
 cers is a question of as much moment and im 
 portance as any other question that the people 
 themselves can direct and control in their own 
 primary meetings. And then we have adopted a 
 system, a compromise system, and one which 
 I am ready and willing to sustain. But if we 
 are to adopt the Report of the Committee, if we 
 are to elect representatives and town officers by a 
 plurality rule, I say frankly and freely, for one, 
 you may take the plurality system altogether ; 
 take it, and let it have free course and be glorified. 
 
 Mr. HOOPER, of Fall River. I am exceed 
 ingly surprised at the remarks of the gentleman 
 from Natick. I had supposed that this Report 
 was a compromise, and had made up my mind 
 to stand by it as such. It is well known, that in 
 the first instance, I was in favor of the plurality 
 system throughout. But I found that gentlemen 
 differed ; and I was willing, as I could not get the 
 whole, to take half of it rather than have none. I 
 supposed that the Committee thought this Report 
 equitable, and I came to the conclusion to sup 
 port it. I confess it has taken me altogether by 
 surprise, that the gentleman has made the motion 
 which he has. The class of officers to which he 
 alludes, is that to which I wish to have the plu 
 rality principle apply. I prefer that it should be 
 applied in the first instance ; but if we cannot 
 have it in the first instance, let us have it at the 
 second trial, and let town officers be elected in 
 the same manner. The greatest complaint in the 
 town which I represent is, that we have not 
 been able, for several years, to elect our town 
 officers without great delay and inconvenience. 
 Now, we want this remedy, so as to have an op 
 portunity to elect them at the second trial, at 
 least, if we cannot have it at the first. I was in 
 hopes that we should take this Report as a com 
 promise on which we could all stand ; so that we 
 should all feel that we have succeeded in obtain 
 ing what we wish, in part, at least, I hope that 
 
152 
 
 ELECTIONS BY PLURALITY. 
 
 [61st day. 
 
 Tuesday,] 
 
 HOOPER FRENCH ABBOTT. 
 
 [July 19th. 
 
 the gentleman from Natick will take this view of 
 the matter, and that we shall adopt the Report 
 without farther amendment, since the amend 
 ment of the gentleman from Freetown, (Mr. 
 Hathaway,) has been rejected. There seems to 
 me a propriety in making this distinction, if you 
 make any ; that you should leave those officers 
 who are to be voted for by the people of the 
 State, so as to apply the majority rule to them. 
 It has been said here that the judges are elected 
 by the people, because they are appointed by a 
 governor who is elected by the people. In the 
 game way, we may say that these officers will be 
 elected by the people, because they will be elected 
 by a legislature which is elected by the people. 
 If the argument is good in one case, it is just as good 
 in the other. Now, in that view, as long as we 
 can have the will of the people represented in the 
 legislature, it is only at second hand that we elect 
 these officers ; and I think, that if we exclude 
 any from this rule, these officers are the proper 
 ones to be excluded. There was a strong reason 
 why the senators should be elected by plurality ; 
 for if not elected at the first trial by the people, 
 their election was transferred to another con 
 stituency, other than the one they represent. The 
 people in the small towns are immediately inter 
 ested to have this pass, because without it, many 
 of them will fail to be represented. But the 
 gentleman says, we shall not compel them to 
 send representatives, because they may vote not 
 to send, if they please. That is true ; but it will 
 seldom take place. The result will be, that when 
 it is found there will be an election, men will 
 take measures to see that the right candidates are 
 put in nomination, and they will attend the polls 
 to see that their election is made secure ; conse 
 quently, a better class of men will be elected 
 than we have had under our majority system. 
 I hope that the amendment of the gentleman will 
 not prevail, but that the Report of the Committee 
 "will be adopted as it now stands. 
 
 Mr. FRENCH, of Berkley. Mr. President : I 
 am rather astonished at the gentleman from Fall 
 River. He appears to want a plurality to elect 
 town officers, and I know that they have been 
 embarrassed in that place on account of not 
 being able to elect their town officers. But I 
 cannot hardly understand what the gentleman 
 wants. To this third resolution I had intended 
 to have offered an amendment, if it had not been 
 done by the gentleman from Natick ; because I do 
 not think it looks proper, as it now stands. At 
 the first ballot a majority is to elect ; and then it 
 is provided that if a majority fails, an election 
 shall be had by a plurality. Well, Sir, what do 
 you want a second vote for ? On the very first vote, 
 
 you have a plurality, if you do not have a ma 
 jority. But it seems to me to be proper that the 
 people should not come together upon two bases 
 for electing representatives and town officers ; 
 that they should try one at a time, and if that 
 did not succeed, they could have another meeting 
 and time to take breath, and take a sober second 
 thought. Now this accomplishes all the gentle 
 man asks for ; for if they are not elected by a 
 majority on the first ballot, they are sure to be 
 elected by a plurality at the second meeting. All 
 the difference is in two meetings. That is all ; 
 and I do not see but the gentleman may be 
 accommodated under this amendment. I am in 
 favor of this amendment, and I believe it to be 
 right. 
 
 Mr. ABBOTT, of Lowell. I desire to say a 
 single word on the amendment of the gentleman 
 from Natick, and I am free to say that unless 
 that amendment prevails, I, for one, am dis 
 posed to put myself on some sort of principle. I 
 am disposed to go for the compromise, or else for 
 the plurality, or else for the majority. [Laugh 
 ter.] But as the matter is, at this present time, 
 as it seems to me, I am going for neither the one 
 or the other ; or, to use a more common expres 
 sion, the scheme presented by the Committee is 
 " neither fish, flesh, nor good red herring." For 
 my part, I do not wonder that my friend from 
 Fall River is willing to go for what he calls a 
 compromise ; but I ask if he expects those who 
 are in the position that I am, those who believe 
 in the majority principle, that it is the true con 
 servative power where the power is in the hands 
 of the people, who believe that a man has a right 
 to shelter himself, and his conscience, and will, 
 behind the heart of the people ; I ask if he believes 
 gentleman who believe that, can go for this com 
 promise ? A compromise, indeed ! It is a com 
 promise which is all on one side. I want to know 
 how much I, as a majority man, get here by this 
 compromise ? 
 
 I want a majority, or I want something like a 
 majority in the law-making part of this govern 
 ment. I do not care so much whether it be a 
 plurality or a majority in the little petty offices, or 
 the great offices, if you please, where men are 
 chosen every year merely to execute and carry 
 out the laws which are made by the law-making 
 part of the government ; but I want a majority in 
 the law-making part of the government, and when 
 I am called upon to vote for the men who are to 
 make the laws, before I have to give up my will 
 and my way, I want to know, and I think I have 
 a right to know, that the majority of the people go 
 for that particular thing. I want the right to call 
 upon a majority, and not upon less than a majority, 
 
61st day.] 
 
 ELECTIONS BY PLURALITY. 
 
 153 
 
 Tuesday,] 
 
 ABBOTT GARDNER. 
 
 [July 19th. 
 
 or upon every little faction that may come up and 
 get so as to number one more than any other 
 faction in the community. Well, Sir, how is it 
 in this compromise, as they call it ? You are to 
 vote for your governor, attorney- general, and 
 some other officers how many I do not know, and 
 do not care once, and if you do not choose them 
 by a majority, they are to be chosen by whom, I 
 pray you, Sir ? They are to be chosen by two 
 bodies, who are to be elected upon the plurality 
 system, and the worst kind of plurality that can 
 be brought into this House, or anywhere else. It 
 is something that gentlemen cannot wink out of 
 sight, or keep out of sight, that you have provided 
 here by your vote, that a majority of the House 
 of Representatives may be chosen by one- third 
 part of the people of this Commonwealth ; and now 
 you ask gentlemen to allow your governor and 
 the other great officers to be elected by that House 
 so chosen, and by the Senate, who are elected by 
 pluralities. I do not regard the first trial by 
 majority, as anything that is merely tentative ; 
 it is merely a feeler, as my friend for Manchester, 
 has told us. But, on the next election, you aban 
 don the whole ; and yet you talk to me about prin 
 ciple, when you have given up all principle, and 
 all that you have got in exchange, is something 
 to go into the legislature and trade upon. Some 
 body else besides the gentleman from Salem, will 
 come to the same conclusion, and see the same 
 thing; you have given up principle and got 
 something that you can trade upon in the legisla 
 ture. That is so apparent, that it sticks out in 
 evtry direction ; the lion s skin is not a quarter 
 large enough to cover something that I will not 
 give any name to. Now, Sir, gentlemen expect 
 persons who believe as I believe, in the majority 
 principle; who believe that it is the true con 
 servative doctrine, that a democrat should put 
 between him and harm ; that the great will of the 
 people, the great heart of the people, is seldom 
 if ever wrong, when a majority are suffered to 
 give expression to their views they expect that 
 we, believing all this, can go for this compromise 
 where we give up everything, and gain nothing 
 that will do us any good gain nothing that in my 
 humble judgment will not be a reproach to us for 
 ever after. I say, if the gentleman from Natick, 
 would take the Report of the Committee as it is, I, 
 for one, am prepared to go for it, and accept the 
 plurality system to that extent. While this is 
 not a h sh, that would be, although I agree with 
 him, that this smells mighty fishy. 
 
 Mr. GARDNER, of Seekonk. I have not 
 detained the Convention at all upon this question, 
 although I have listened with much interest to the 
 remarks of other gentlemen who have spoken 
 
 upon it ; but, before the question is taken, I wish 
 to express my views in short, in regard to it. I 
 must say, that I am obliged to differ with my 
 friend from Fall River, (Mr. Hooper,) and many 
 other gentlemen of the Convention, who have 
 stated here, that the people of the Commonwealth 
 were dissatisfied with the present system, and in 
 favor of the plurality system. I think that I 
 know something myself of the views and feelings 
 of the constituency which I represent here, and 
 the people of that part of the State. To be sure, 
 I am from the same county with my friend upon 
 my right, (Mr. Hooper) ; but, Sir, I do not believe 
 that a majority of the people of the county of 
 Bristol, or of this Common wealth, are at present 
 prepared for the plurality system, even so far as 
 we have already adopted it. I hope, therefore, 
 that the amendment which has been offered by 
 the gentleman from Natick, will be adopted. I 
 think gentlemen may, perhaps, make up their 
 minds for themselves, in some instances, better 
 than they can for their constituents. I think they 
 are mistaken in supposing that the people desire 
 so many reforms in the Constitution. We have 
 made some which are salutary and democratic in 
 their tendency, which are well conceived, and 
 which I have no doubt will be adopted by the 
 people ; but I doubt very much, whether we have 
 made a judicious reform in the manner in which 
 we have settled the basis of the Senate ; I should 
 have preferred that it had been based upon legal 
 voters. In regard to the plurality question, I 
 hope the amendment of the gentleman from 
 Natick will prevail ; and if it should not, I should 
 like to move an amendment to the third resolution, 
 which would be, to strike out all after the word 
 " election." I should prefer that, but still I shall 
 give my vote, with great pleasure, for the propo 
 sition which has been made by the gentleman 
 from Natick. I have not, upon any occasion, de 
 tained the Convention with any very protracted 
 remarks ; nevertheless, there are some questions 
 whicli have been taken here, in cases where the 
 previous question has been unexpectedly ordered, 
 or some motion has been made that the question 
 should be taken at a specified time, so that the 
 gentlemen, who, like me, happen to sit in the 
 rear of the hall though with my own position I 
 am well pleased have not had an opportunity to 
 express their views. At any rate, I will take 
 the liberty to say, that some questions have been 
 passed upon, in a manner which, in my judg 
 ment, needs to be reviewed, before we adjourn. 
 Although I am in favor of bringing the doings of 
 the Convention to a close as speedily as possible, 
 yet I hope, that what we do will be done for the 
 public good ; and I hope that this question will 
 
154 
 
 ELECTIONS BY PLURALITY. 
 
 [61st day. 
 
 Tuesday,] 
 
 TKAIN. 
 
 [July 19th. 
 
 be discussed, if need be, until we shall vote down 
 the propositions contained in these resolutions. 
 
 Mr. TRAIN, of Framingham. I am very 
 happy, Mr. President, that the gentleman from 
 Natick has moved this amendment ; because, Sir, 
 it has given me an opportunity to know that that 
 gentleman, and my friend from Lowell, (Mr. 
 Abbott,) have been brought to a realizing sense 
 of their condition. [Laughter.] In other words, 
 they have been brought to appreciate that the 
 Report of this Committee is by no means such a 
 proposition as this Convention should go for; 
 that it is an attempt, either intentional or unin 
 tentional, to place the chief offices in the Com 
 monwealth in the hands of a legislature who may 
 be chosen by a majority or not, as political capi 
 tal upon which to truck and dicker. Now I 
 think, that, as a member of the minority of this 
 Convention, in relation to the remarks of those 
 gentlemen, I am entitled to speak right out, 
 without keeping anything back. We have been 
 told, by the member for Manchester, by the mem 
 ber from Natick, and by the member from Low 
 ell, all leading minds in this Convention, that 
 that is the result of this Report ; and I think 
 that I am assuming nothing, as a member of the 
 Whig party in this Commonwealth, when I say 
 "Amen" to their declaration. We are called 
 upon to vote here that senators and councillors 
 should be chosen by plurality ; that district and 
 county officers should also be chosen by plurality ; 
 but that six of the highest officers in the Com 
 monwealth should be chosen by a majority, and 
 that failing, that they should be chosen by the 
 legislature. Now I should like to have some 
 gentleman who has astuteness enough, point out 
 the principle upon which this distinction is made. 
 I have been unable to see it. I agree now, as I 
 always have done, to the general doctrine, that if 
 you apply the plurality principle in one instance, 
 you are bound to apply it in the whole. I need 
 not recapitulate the arguments which have been 
 gone over in the course of the debate upon this 
 subject, because it is well understood, and I think 
 it must be conceded that the argument of neces 
 sity alone if it is an argument should induce 
 the people of this Commonwealth to adopt the 
 plurality system ; and I do not rise for the pur 
 pose of going into an argument generally upon 
 the propriety of adopting either the plurality or 
 the majority system, but for the purpose of ad 
 dressing myself to the amendment of the gentle 
 man from Natick ; and, Sir, having been born 
 and educated in one of the country towns of 
 Massachusetts, I know of nothing that would be 
 more oppressive, that would create more hardship, 
 and would place the House and Senate more in the 
 
 hands and in the power of the money of Massa 
 chusetts, than this amendment which has been 
 offered by the gentleman from Natick. The prop 
 osition, as I understand it, is that if a majority 
 fails to elect at the first ballot in any of the towns, 
 they may adjourn from day to day for the purpose 
 of election, provided, that that adjournment does 
 not extend beyond six days. Now, Sir, I desire 
 to know how many towns thfcre are in this Com 
 monwealth where a majority of the people can 
 afford to go to town meeting from the first Mon 
 day in November until the snow flies ? I do not 
 know of any such towns. In my town we have 
 seven hundred voters, and there may be one 
 hundred and fifty out of the seven hundred who 
 can afford to go to town meeting from the first 
 Monday in November, until the legislature meets, 
 but there are not more than that. At the first 
 town meeting perhaps there will be five hundred 
 voters out of the seven hundred, and you can get a 
 large expression of the people of the town ; but 
 at the next election there would not be more than 
 half of the whole number there, and after that there 
 would be but a small fraction. These men find 
 that it is a great expense of time and money to 
 go to town meeting so often ; and hence the op 
 pression of the amendment of my friend from 
 Natick. In my own town I have three hundred 
 constituents who work by the day in the cotton 
 factory, or who work at manufacturing boots and 
 shoes ; and every day that they go to town meet 
 ing causes them a loss of from one to two dollars 
 each, which they need to appropriate to the sup 
 port of their families ; and are we to be told now 
 that we should vote from day to day from the 
 first of November, until the legislature meets, for 
 the purpose of choosing a representative by ma 
 jority ? I put it to members from the country, as 
 a matter of fairness and justice to those who are 
 unable to go to town meetings from day to day, 
 if they should be dragooned into any measure, 
 which will, in the end, put the power of adminis 
 tering political affairs into the hands of those few 
 who can thus afford to go when the others cannot? 
 That is the whole of it. Those who have the 
 most money, those who have the best wind to 
 use a race- course expression and the most bot 
 tom, will choose their men at last ; for they can 
 attend the election after the poor man has been 
 obliged to stay at home, to earn bread for his wife 
 and children. That is what I understand the 
 proposition to be. 
 
 Now, I do not know to which party I belong 
 here whether I am a conservative or a radical. 
 I thought I was a conservative I was always 
 taught that I was a conservative but since my 
 friend from Lowell, whom I have known so long, 
 
61st day.] 
 
 ELECTIONS BY PLURALITY. 
 
 155 
 
 Tuesday,] 
 
 TRAIN DAVIS BRIGGS. 
 
 [July 19th. 
 
 claims to be a conservative, I think it is very pos 
 sible that I have been driven to the other side. 
 If a desire that my fellow-citizens should be al 
 lowed to exercise their rights and to be represented, 
 is radical, then I am a radical. If being driven 
 from the position that but a small part of the 
 seven hundred voters in my town should be 
 allowed to choose a representative is radical, then 
 I am a radical as opposed to that position. Look 
 at the last election in the district in which I live, 
 or in any of the congressional districts in which 
 there were elections last fall ; and I say, Sir, I 
 believe that I cannot be mistaken, that the rep 
 resentatives to congress who were chosen by 
 pluralities at that election, were chosen by a smaller 
 vote than the minority candidate had at the first 
 election. I believe that to be true ; I am not 
 quite so sure how it was in my own district, where 
 Mr. Sabine was chosen ; but I am very sure that it 
 was so in the adjoining district, where another 
 gentleman was chosen whom I will not name. 
 Gentlemen will find that just in proportion to the 
 number of elections, just in that ratio does the 
 number of voters diminish ; because a majority of 
 the people of the Commonwealth who exercise 
 the right of suffrage cannot afford to go to the polls 
 and vote day after day ; and that is the reason 
 why I oppose the amendment of my friend from 
 Natick. I trust that no such amendment will 
 pass. The same reason which he urges in 
 favor of the amendment, as it seems to me, ap 
 plies with double force against it. He says that 
 if you adopt the plurality principle in these towns, 
 there may be a desire to concentrate against the 
 plurality candidate, and so they will vote not to 
 send. I say it is better that they should have no 
 representative, than that, because they are unable 
 to send a man to represent them properly, they 
 shoxild be misrepresented by a representative upon 
 this floor. These are, briefly, the views which 
 I have entertained in regard to this matter. I 
 did not propose to occupy the time of the Con 
 vention as I have done ; but I have a very strong 
 feeling and belief, that the principles which I 
 have enunciated are the true principles which 
 should govern the elections in this Common 
 wealth. 
 
 Mr. DAVIS, of Plymouth. I am very glad, 
 Sir, that the gentleman from Natick has seen fit 
 to move any amendment which will shape, or 
 which will have the tendency to shape, the 
 Report of the Committee. I agree with what 
 has been said by the gentleman from Lowell, that 
 I see no rule I see no principle I see no 
 compromise in the Report of the Committee ; 
 and I have not yet seen that the chairman 
 of the Committee which made that Report, 
 
 has evinced any desire to recommend it farther 
 than by thus offering it to this Convention. 
 He has not defended it, nor is he present here 
 to take charge of it ; and certainly, if the Con 
 vention will read the preface to the Report, I 
 think they will perceive that he has given 110 
 reasons there which will recommend it to this 
 body. I am glad, Mr. President, that this amafld- 
 ment has been offered by the gentleman from 
 Natick, because it is, in some degree, like that 
 which was offered in Committee of the Whole, 
 yesterday, by myself ; and I certainly do not care 
 which amendment prevails, if either of them has 
 any tendency to prevent the election of town 
 officers by plurality ; because I regard them as 
 substantially the same. I rise, at this time, to 
 state one reason why the plurality system should 
 not prevail in any election more especially in 
 town elections and in the elections of representa 
 tives and it is a reason which I have not seen or 
 heard stated. It is more particularly applicable 
 to town and city elections. It seems to me that 
 elections by plurality, for town officers and town 
 representatives, would be the means of introduc 
 ing a political demoralization here, which the 
 experience of other States has shown us almost 
 necessarily follows in town and municipal affairs. 
 I ask gentlemen of this Convention whether they 
 believe that if the majority system had prevailed 
 in the city of New York, the country and the 
 world would have seen that spectacle of corrup 
 tion in the aldermen of the city of New York, 
 which has now become a matter of history ! 
 
 I believe that plurality in elections for repre 
 sentatives, as well as for town officers, tends 
 directly to that end ; and moreover, that if any 
 local object is to be gained, if any particular pri 
 vate speculation is in view, in a town or city ; if a 
 street is to be cut in a certain direction, or a new 
 one laid out through some man s land, or any 
 other particular object is to be attained, all that 
 they have to do is to get a caucus ; and while the 
 more silent, honest, but careless voters are slum 
 bering in security at home, or are divided upon 
 other matters, this caucus nomination is brought 
 out under the guise of party, and before the ma 
 jority of the citizens are aware, by the vigilance 
 and activity of men intent upon a private pur 
 pose, they carry their election under the plurality 
 system. It was for that reason, a reason I did 
 not state before, because I supposed it was the 
 sense of the Convention that, without debate, 
 many parts of the Report of the Committee 
 would be rejected, that I offered this amend 
 ment. 
 
 Mr. BRIGGS, of Pittsfield. It has been said 
 that politics makes strange bed-fellows, and I 
 
156 
 
 ELECTIONS BY PLURALITY. 
 
 [61st day. 
 
 Tuesday,] 
 
 BKIGOS. 
 
 [July 19th. 
 
 believe that Conventions do also. But a little 
 while ago I found myself voting point blank 
 against the gentleman from Natick, (Mr. Wilson,) 
 and, I believe, the gentleman from Lowell, over 
 the way. Now, Sir, I find myself in their ranks, 
 an humble supporter of the proposition of the 
 gentleman from Natick, although I could wish 
 that he would modify it a little. I have made 
 inquiry, a great many times, of gentlemen who, 
 I suppose, would know something about it, how 
 it happens that that provision came into the Con 
 stitution that the towns were obliged to elect 
 their representatives in one of four days, first on 
 regular election day, then at two adjournments, 
 and then on the fourth Monday in November, 
 and I must say that I have never yet had a suffi 
 cient reason assigned. The gentleman from Fra- 
 mingham has given, perhaps, as good a reason as 
 can be given, which is, that it is not advisable 
 that the people should be called together too fre 
 quently for the purpose of voting. That, how 
 ever, is not a satisfactory reason to me. I should 
 prefer to adopt the system of permitting the 
 people to hold meetings as long as they pleased 
 for election purposes, even if they did not succeed, 
 down to the very day of the adjournment of the 
 legislature. I would carry out what we have 
 carried out here. I see before me the respected 
 gentleman who succeeds ovir lamented colleague, 
 whom we last week put into the grave, who 
 takes his seat on the second day of the week dur 
 ing which the Convention have declared that we 
 should close our labors. Is there any objection 
 to that ? None whatever. Woxild there have 
 been any objection to it if the people had seen tit 
 to have voted on the matter ten times ? None what 
 ever. And, Sir, if you will not give the people 
 such a Constitution as will permit them to elect 
 their officers on the first ballot, what earthly 
 reason can be assigned why they should not be 
 allowed to try until they can come to a final de 
 termination, and elect a man according to their 
 own mind? I would not provide that they 
 should not adjourn for a longer period than six 
 days. I see no necessity for any provision of 
 that kind. Leave the matter to the people of the 
 towns. Let them adjourn for as short a time, or 
 as long a time, as they please. Leave it to them ; 
 and then I would adopt a provision in the Con 
 stitution to the effect that the towns which are 
 entitled to representation, and which have not 
 chosen a representative, may send a man to the 
 legislature any day previous to the last day of 
 the session. I shall, however, vote for the propo 
 sition as it is. 
 
 One word more, Mr. President. Gentlemen 
 complain of the Report of the Committee. Why 
 
 in the world should they ? They say that it con 
 tains no principle. Why, Sir, does it not contain 
 all principles ? [Laughter.] Who is there that 
 ought not to be satisfied with it ? Do you want 
 an election by a majority ? Governor, lieutenant- 
 governor, treasurer, attorney-general, and audi 
 tor, must be elected by the good old-fashioned 
 method of a majority* of what ? Why, Sir, they 
 must come up here and be elected by representa 
 tives chosen by one-third of the people. [Laugh 
 ter.] Can any majority man be dissatisfied with 
 that ? Do you want a plurality ? Your plurality 
 men of whom I have the honor to be one why, 
 Sir, your senate is to be elected by a clean plu 
 rality, and so are your county officers. Do you 
 want both principles ? Look at your town rep 
 resentatives, and your municipal elections. Do 
 you want a majority system ? There you have 
 it, and if you cannot elect upon that system, then 
 you have the privilege of trying the plurality 
 plan ; and yet, here we are, grumbling at this Re 
 port a Report which furnishes individuals every 
 thing they want in that line, as far as it goes. 
 Now, it seems to me, that we are making a mis 
 take. I say, with all respect to the Convention 
 I know we have no right to talk to them, but I 
 know, also, that they are civil gentlemen, and 
 they will bear with me I say, I believe at this 
 moment, that the great people of the State of 
 Massachusetts, are looking up to this House for 
 the adoption of the plurality system. I may be 
 mistaken ; if I am, I am mistaken ; but that 
 is my opinion. As to the majority system, 
 have they not felt the inconvenience of it, year 
 after year ; and have not members of differ 
 ent parties, on different occasions, advocated 
 the plurality system ? And are there not num 
 bers of gentlemen, I say it with all respect; 
 I do not intend it, as my friend from Boston, 
 (Mr. Hillard,) would say, as a "fling," are 
 there not gentlemen, whose ears listen to me, that 
 came here strong plurality men, who have aban 
 doned that notion, and has it not been assigned 
 by some, as a reason for abandoning it, that the 
 Whigs have come up here in one solid phalanx 
 in favor of it ? And is that a sufficient reason ? 
 Mr. President : with some gentlemen I have no 
 doubt that that reason is all-sufficient. If the 
 people want it, is there any danger in adopting it ? 
 And, if they do not want it, no man ought to go 
 for it ; and, as far as I know, those who cooperate 
 with me in political affairs out of the Convention, 
 at home, and who have expressed their opinions 
 honestly, have entertained this opinion, though 
 they may have changed that opinion, as all honest 
 men will do when they see sufficient reason for 
 doing so. 
 
61st day.] 
 
 ELECTIONS BY PLURALITY. 
 
 157 
 
 Tuesday,] 
 
 BRIGGS KEYES. 
 
 [July 19th. 
 
 I say, Sir, without occupying more of the time 
 of the Convention, that I seriously wish gentle 
 men would attend to the arguments that have 
 been presented to them, not on this side of the 
 House, but from their own friends. I wish they 
 would come forward and answer the arguments 
 of my friend for Manchester, (Mr. Dana,) on this 
 subject, or carry out those principles which but 
 three hours ago were so strongly shown to be the 
 sense of the Convention. This is certainly an 
 important subject ; one which strikes deeply at 
 our political rights, and which will have an im 
 portant effect upon those rights for years to come. 
 I would wish that this question should be met 
 and decided upon its merits, and that we should 
 carry out fully and fairly, and clearly and plainly, 
 what I believe to be the unmistakable indications 
 of the public wish. But, Sir, if that cannot be 
 done, for one individual, I am disposed to get as 
 near to it as I can ; and, with the present aspect 
 of the proposition before the House, I shall sup 
 port most cordially the proposition of the gentle 
 man from Natick, (Mr. Wilson,) though I wish 
 he would present it in a somewhat modified form. 
 
 Mr. KEYES, for Abington. I should not have 
 risen to say another word to the Convention, on 
 this subject, had it not been for the fact, that it 
 has been mentioned, several times, that the chair 
 man of the Committee which reported these res 
 olutions, is absent, and that absence been con 
 strued as being intentional on his part. And, as 
 I had as much to do with that Report as he had, 
 and as it has been assailed as having no principle, 
 and it having been asserted, again and again, that 
 no good reasons can be assigned for the several 
 points it embraces, I wish to say a word or two 
 in its defence. 
 
 The gentleman from Plymouth (Mr. Davis) is 
 opposed to it, because he regards it as a monster, 
 without character, without principle, and without 
 everything else that, in the remotest degree, could 
 recommend it. But, Sir, I immediately saw the 
 reason why he opposed it. He had offered an 
 amendment, similar in its provisions to that 
 which is now pending, as offered by the gentle 
 man from Natick, (Mr. Wilson,) and which was 
 rejected by the Committee of the Whole. That 
 is a sufficient reason for his opposition. 
 
 Then, the gentleman from Lowell (Mr. Adams) 
 is similarly situated. He made a very proper 
 speech, in favor of the majority system and I am 
 sorry that we had not many speeches of the same 
 kind a long time ago. But it is too late to make 
 them now. There has been a great deal said here 
 about " principle ; " but it strikes me, Mr. Presi 
 dent, that there is very little principle in the 
 whole matter. Now, Sir, here is a complete 
 
 compromise ; not like the compromises we hear 
 of in some other parts of the country, which con 
 tain matter which nobody can adopt ; and, Sir, 
 I contend that there is a good reason for every 
 one of these propositions. What were the com 
 plaints before? They were not made on the 
 ground of principle, at all. There is not a man 
 on the floor of this hall, who would wish to say, 
 before the people, that the majority principle is 
 not the only and the proper principle that ought 
 to be adopted ; and the moment you depart from 
 it, you lessen the government, and degrade it, in 
 every sense of the word. And, as I said before, 
 the only principle about it is, on the ground of 
 inconvenience, and its only eft ect to destroy one 
 party and permit another party to rise into 
 power. 
 
 Now, Sir, I say that we had evidently aban 
 doned the idea of coming to any decision on the 
 ground of any distinct and positive principle ; 
 and that was the reason why the Committee went 
 out to see if we could not devise some plan on 
 which we could harmonize. In the early part of 
 the day, I explained briefly some of the reasons 
 which had operated upon the Committee, and 
 some of the advantages which would result from 
 the adoption of the Report. In regard to the 
 town system, every-body knows that it extends 
 the privileges of the people to give them more 
 than one ballot. Why do they wish it r It is 
 for their own satisfaction and convenience. When 
 they cannot agree upon the caucus nominations, 
 they can have a second choice a choice emphat 
 ically of their own, without the intervention of a 
 caucus ; and there is, therefore, no inconvenience 
 in the arrangement, so far as it regards the towns. 
 If they say : "Let us decide upon the matter to 
 day," they will do so ; and, after having voted 
 once and come to no decision, they may have 
 twenty candidates if they please. Here, then, in 
 these propositions, there is a fair compromise on 
 both sides. 
 
 Now, it was said by the gentleman from Natick, 
 that if the people, at a town meeting, could not 
 agree on a candidate, they could agree to adjourn ; 
 and that, therefore, the majority would rule. 
 But, Sir, it is not so. The polls are open at nine 
 o clock, and there are no majorities there to 
 adjourn on this system ; and they will go on and 
 take a vote, and after they have made a count, 
 and decided that they will have no election, then 
 the majority rules. 
 
 The gentleman from Lowell, said that the 
 House of Representatives, by this plan, may be 
 elected by a third party, in Massachusetts. Why, 
 Sir, the moon may be made of green cheese, 
 for anything I know. A great many things, may 
 
158 
 
 ELECTIONS BY PLURALITY. 
 
 [61st day. 
 
 Tuesday,] 
 
 KEYES SCHOULEB. WILSON. 
 
 [July 19th. 
 
 be ; but may bees do not fly in July or August. 
 We all know that all this talk about inequalities 
 in representation, is humbug, from beginning to 
 end. It is all absurdity, and reminds me of a 
 conversation I had with a gentleman from Bos 
 ton, the other day, who told me, with a long 
 countenance, that this inequality was perfectly 
 awful. I asked him if it had ever occurred to 
 him, that during the last ten years, he had exer 
 cised sixty- six times more power in the legislature 
 than I had ; and that while that was the case he 
 had never thought there was any necessity for a 
 change in the Constitution ? I told him that I 
 lived in a town having 4,500 inhabitants, electing 
 one representative every year ; that I voted for one 
 representative every year, while he voted for forty- 
 four representatives ; that he elected one represen 
 tative for every 3,100 of the population of Boston, 
 and I one for 4,500 ; and that he had sixty-six times 
 mere power in the legislature, than I had ; and 
 yet he had lived under the system for ten long 
 years, and said that all was equal enough, and 
 answered every-body s purpose well enough. 
 There was no ruin and destruction, under that 
 system. The country towns, Sir, are to be op 
 posed to each other always. Why, Sir, if you 
 had a decent party, here in Boston, one half of 
 the country towns would go for you. [Laugh 
 ter.] Therefore, these towns are divided against 
 eacb other, and this vast accumulation of power 
 in the country is just as much for the benefit of 
 cities, as for anybody else, and they can calculate 
 upon it if they only behave themselves. 
 
 Now, as I said before, I felt in duty bound to 
 go for the Report, because I thought it was made 
 to meet the wishes of the members of this Con 
 vention, a wish expressed by a previous vote. It 
 has not given everything to one side, and kept 
 everything from the other, but has divided the 
 spoils. But now that gentlemen see fit not to 
 accept of it, the obligation I felt under to support 
 it, is removed from me. I do not care whether 
 any more of it be adopted, or not ; and I will 
 simply say, in defence of this Report, that it 
 answers the purpose for which the Committee 
 were sent out to make it. It answers that pur 
 pose as completely and as fully, as any report, 
 made by anybody possibly could. It is a compro 
 mise, and a fair one, giving to each party what 
 belongs to each, and there is good reason for 
 each paragraph in it. 
 
 Mr. SCHOULER, of Boston. The gentleman 
 from Pittsfield, (Mr. Briggs,) has said that politics 
 make us acquainted with strange bed- fellows, 
 but that is not half so strange as the speech just 
 made by the gentleman who represents Abington, 
 (Mr. Keyes,) for there is no man in this State, I 
 
 might, perhaps, say there is no man in the United 
 States, who has spoken more frequently, and more 
 bitterly against all kinds of compromise than that 
 gentleman ; and yet he comes forward here in this 
 Convention, finding that the chairman of the 
 Committee shirks from the responsibility, and 
 takes upon himself the responsibility of advocat 
 ing this compromise Report. 
 
 Mr. WILSON, of Natick. Will the gentleman 
 from Boston allow me a word of explanation ? 
 
 Mr. SCHOULER. Most certainly I will. 
 
 Mr. WILSON. My friend from Boston has 
 made a remark which I am sure is unjust, and 
 which he will consider so, when he ascertains the 
 facts. The gentleman from Lowell, (Mr. Butler,) 
 to whom he referred as shirking the responsibility 
 of this Report, was compelled, by death in his 
 brother s family, to be absent this afternoon. 
 Justice to him requires that I should make this 
 explanation. 
 
 Mr. SCHOULER. That is a matter which I 
 did not know. But the gentleman from Lowell 
 was here yesterday all day, and also has been 
 here to-day during the whole discussion until 
 this afternoon, and he has not put forth any 
 defence of this Report. But the gentleman for 
 Abington, (Mr. Keyes,) takes up the gauntlet ; a 
 gentleman who has been opposed to all kinds of 
 compromises who has stood upon the pinnacle of 
 principle, has become the advocate, par excellence, 
 of compromise. And what has he made out of 
 it ? He said it was the compromise for which 
 this Committee was sent out of the Convention to 
 make. Who ordered them to make it ? Where 
 was it made ? In coffee-houses, and pot-houses. 
 
 Mr. KEYES. I desire to ask the gentleman 
 whether, from his own experience in going to 
 coffee-houses and pot-houses to make compro 
 mises, he judges that this Report came from the 
 same place ? [Laughter.] 
 
 Mr. SCHOULER. I did not mean anything 
 personal by my remarks, and I am sorry that the 
 gentleman should suppose I did. When I spoke 
 of coffee-house and pot-houses, I did not intend 
 any personal reflections upon the gentleman who 
 represents Abington ; but I have heard, and other 
 people have heard, that the compromise for the 
 basis of representation which was brought into 
 this House, was concocted over a dinner-table 
 down near a certain coffee-house. That the gen 
 tleman will not deny, because if he does, I can 
 prove it. [Laughter.] 
 
 Mr. KEYES. I do not know how far my 
 opinions may have accorded with others who 
 have considered and talked over this matter, 
 everywhere, almost ; but, Sir, this entire Report 
 of the Committee, with the exception of one single 
 
61st day.] 
 
 ELECTIONS BY PLURALITY. 
 
 159 
 
 Tuesday,^ 
 
 SCHOULES. 
 
 [July 19th. 
 
 paragraph, was prepared by myself at home, and 
 submitted by me to the Committee. I have not 
 dined in any coffee- house, or any restaurant dur 
 ing the whole session, and have been at no dinner, 
 or public display of any character, except once, 
 and then I spent five minutes in a caucus, where 
 I saw nothing but a lamp upon the table. 
 [Laughter.] 
 
 Mr. SCHOULER. It was the remark of an 
 English poet, " may not a man have a house in 
 his own inn." I supposed that the gentleman who 
 signed the Report was the concoctor of it, and he 
 is the gentleman who represents Lowell, (Mr. 
 Butler). 
 
 Mr. KEYES. I will state that the principles 
 of this Report were adopted mainly during the 
 absence of that gentleman. Being afterwards sub 
 mitted to him, lie agreed to them, and signed his 
 name to the Report. 
 
 Mr. SCHOULER. All I judged from, was 
 the signature of the Report, and that is the signa 
 ture of the gentleman from Lowell, and I pre 
 sumed he was the chairman of the Committee, 
 for he made the first speech to explain the Report ; 
 but now it appears that the gentleman from 
 Abington, (Mr. Keyes,) is not only the defender 
 of the compromise, but the author of the com 
 promise. He has brought in an omnibus bill, and 
 asks us to go for it. It is a bill which he cannot 
 even get his own friends to support. I dislike 
 omnibuses, any way. It was said yesterday, it 
 has been said to-day, and it will be said hereafter, 
 and it cannot be denied and, as the gentleman 
 from Lowell, (Mr. Abbott,) who spoke this after 
 noon, well put it, it cannot be winked out of 
 sight, and it wont go if you do wink it out that, 
 by this basis of representation, one- third of the 
 people of Massachusetts, can have a majority in 
 this Home. That is the point which the gentle 
 man from Lowell, (Mr. Abbott,) put to the Con 
 vention this afternoon, and the fact cannot be 
 gainsayed, however much we may talk about 
 compromises, however much we may try to enlist 
 the sympathies of this body by calling this a com 
 promise. 
 
 I am opposed to the amendment proposed by 
 the gentleman from Natick. I go for the repre 
 sentation of our towns, and of our cities ; and I 
 go for that, because I think every man, woman, 
 and child in Massachusetts, should always be 
 represented in the legislature ; and that they 
 should be the makers of the laws. If we adopt 
 the amendment proposed by the gentleman from 
 Natick, we will have the great difficulty and the 
 great objection which lies against the present 
 Constitution, for it leaves the Constitution, in 
 that respect, precisely where it now is. 
 
 The gentleman from North Brookfield, (Mr. 
 Walker,) in speaking yesterday, said it is no great 
 inconvenience if a hundred towns are left out of 
 the legislature. Now, Sir, I take issue with him 
 upon that point. I say, there is an inconvenience 
 and a wrong about it, which no compromise and 
 no speech can overcome ; because these people, not 
 represented in the legislature, are still bound to 
 obey the laws which other people make for them. 
 It was to get rid of this town representation of 
 small towns, and parts of the Commonwealth, 
 which we came here principally, among other 
 things, to perform ; and, by the district system, 
 we would have obviated the evils to which I 
 refer. 
 
 The gentleman from Natick, and others who 
 have discussed this question, have not looked at it 
 outside of the small towns. He gives the small 
 towns the right to vote two or three times every 
 day, from the first Monday of November up to 
 the time of the assembling of the legislature. Al 
 though we have cut down the representation of 
 the cities unequally with that of the towns, still 
 this makes the inequality still greater, because in 
 the cities we cannot have elections every day. 
 When we once get together for that purpose, we 
 have to remain, for the mayor and aldermen can 
 not adjourn the meetings in the cities, as can be 
 done in the towns. You may vote five or six 
 times in the small towns, but you cannot do it 
 in the cities ; and, as the Constitution now stands, 
 I do not see how we can obviate it at all. We 
 can have but two elections one, the annual elec 
 tion, and the other on the fourth Monday of No 
 vember. I say this is not fair ; because it gives to 
 one part of the Commonwealth the right to try 
 to elect a number of times, and allows the cities 
 to try only twice. 
 
 But, the farther we go into the consideration of 
 this matter, the more we see the difficulties. 
 There are but two courses to pursue, and, as long 
 as we keep to the principle of either, we keep in 
 a straight line. I can see why some should travel 
 in one line, and prefer the majority rule, and why 
 others should pursue the other, and prefer the 
 plurality principle. If gentlemen are in favor of 
 the majority rule, say so, and stick to it. If they 
 are in favor of the minority principle, stick to 
 that, without compromise, and then we shall 
 have a Constitution which is plain. If we adopt 
 either the one course or the other, the people will 
 know what it is, and it will operate equally 
 throughout the State. The more we discuss this 
 matter, the greater will be seen to be the difficulty 
 of any attempt to compromise a principle ; to at 
 tempt to put into the fundamental law of the 
 Commonwealth, a provision which has no prin- 
 
160 
 
 ELECTIONS BY PLURALITY. 
 
 [61st day. 
 
 Tuesday,] 
 
 HATHAWAY HILLAIID. 
 
 [July 19th. 
 
 ciple whatever in it, and never was intended to 
 have any principle in it. I trust, that as the rep 
 resentatives of the people, we shall see the neces 
 sity, when we are framing an organic law, of 
 founding it upon principle. Unless we do so, it 
 will not stand. All expediency, all compromise, 
 seeks something beside principle, and will fall. I 
 trust we will throw overboard this whole compro 
 mise platform, upset the omnibus, and adopt a 
 principle, and stand by it through and through. 
 
 I do not wish to consume the time of the Con 
 vention. I rose merely for the purpose of show 
 ing the absurd position in which the gentleman 
 for Abington (Mr. Keyes) places himself, and 
 from which I do not see that he will be able to 
 extricate himself. 
 
 Mr. HATHAWAY, of Freetown. I am al 
 ways extremely anxious to know precisely what 
 I am called to vote upon, and I ask the indul 
 gence of the Convention for a moment, upon this 
 matter. In this part of the House there are various 
 opinions as to the provision of the amendment of 
 the gentleman from Natick, (Mr. Wilson). My 
 friend from Boston, (Mr. Schouler,) says it con 
 tains the majority principle, and so I understand 
 the gentleman from Natick to say ; but if I un 
 derstand the proposition, it is this, and nothing 
 more : That upon the failure of an election of 
 representatives, town meetings may be adjourned, 
 from time to time, until an election shall be had. 
 I do not pretend to give the precise language of 
 the amendment, but that is the substance of it. 
 I ask the gentleman from Natick where, in his 
 amendment, he finds the majority of all the voters 
 in an election required to eifect an election, and 
 wherein does it differ from the provisions of our 
 present Constitution ? Where is there any provis 
 ion in his amendment to prevent the legislature, 
 the very first day of their session, in January next, 
 from passing a law, providing that thereafter a 
 plurality may or shall elect ? What violation 
 would there be in that, of any principle or pro 
 vision which he has incorporated in his proposi 
 tion ? If I am wrong in reference to this matter, 
 I should like to be now corrected. 
 
 In consequence of the Convention, the other 
 day, refusing to have a proposition read so that 
 the Convention might understand it, and believ 
 ing that all the Convention did not understand 
 the precise proposition contained in this amend 
 ment, a few moments since I went to the Chair, 
 and ree xamined it, and I found my impression 
 true, that there was nothing in it to prevent the 
 legislature from saying that a plurality may or 
 shall elect. My friend from Worcester, (Mr. Al 
 len,) suggests to me there is nothing in the present 
 Constitution which requires that a majority of 
 
 votes shall be required for an election of a repre 
 sentative. I agree with him, and I can find 
 nothing in the Constitution which would have 
 prevented, in times past from 1780 up to the 
 present moment the legislature from providing, 
 by law, that a plurality might elect ; and the same 
 difficulty, it seems to me, is involved in the prop 
 osition of the gentleman from Natick, if he in 
 tended to require a majority of all the electors to 
 eifect an election. In order that the Convention 
 may understand the matter, and not be misled 
 which I do not believe the gentleman from Na 
 tick designed should be the case I call for the 
 reading of the amendment. 
 
 Mr. HILLARD, of Boston. I think this Re 
 port, when we take it in connection with its pa 
 rents and its pedigree, is rather a singular docu 
 ment. In this Convention, I, in common with 
 the minority party, am only a passenger on board 
 ship, not responsible for the course of naviga 
 tion ; but, from some symptoms that develop 
 themselves, there seems to be a likelihood of a 
 mutiny in the forecastle, in which case, we may 
 be able to get a look at the log-book, and learn 
 where we are, and where we are going. 
 
 As to the majority and plurality rules, I assent, 
 substantially, to the views of the delegate for 
 Manchester, (Mr. Dana). The plurality rule, it 
 seems to me, ought to be applied to the election 
 of the governor and all officers chosen by the gen 
 eral action of the whole State, but not to the 
 election of town officers, or representatives. This 
 is just reversing the application of the Report 
 before us. That document reminds me of the 
 horse advertised for a show, that had his head 
 where his tail ought to be. But we are told that 
 as we cannot have the whole of the principle, we 
 must be content with what we can get. The 
 gentleman for Abington (Mr. Keyes) was, in my 
 judgment, right, in the doctrines he just now laid 
 down and defended, with his usual courage and 
 frankness. He said the Report did not pretend 
 to push one principle to its extreme, but that it 
 was a compromise ; a compromise of principles. 
 So far, so good. But I never expected to live to 
 see the day when the gentleman for Abington, 
 (Mr. Keyes,) and the gentleman from Natick, (Mr. 
 Wilson,) would talk so glibly of compromises. 
 Especially should I have. thought that the word 
 would have stuck in the throat of the latter gen 
 tleman, like Macbeth s "Amen." Perhaps he 
 has been denouncing compromises so long, that 
 he has learned to speak the word easily. It is 
 only on this supposition, that I can account for 
 its having been spoken so trippingly on the 
 tongue, as it was just now. 
 
 I am one of those unprincipled men who be- 
 
61st day.] 
 
 ELECTIONS BY PLURALITY. 
 
 161 
 
 Tuesday,] 
 
 HILLAKD WHITXEY. 
 
 [July 19th. 
 
 lieve, and always have believed in the necessity 
 of compromises. My household consists of two 
 persons, and I find I cannot govern it with 
 out daily compromises ; [laughter ;] and as to 
 undertaking to govern a community of a million 
 of souls, without compromises, it is just as im 
 practicable as it would be to pass from one point 
 to another without passing through the interme 
 diate points. I go for compromise in this matter ; 
 but, as I said before, I would have transposed 
 the rules, adopting that of plurality for the gov 
 ernor and other State officers ; but not extending 
 it to town meetings. 
 
 I spoke a moment or two ago of symptoms of 
 mutiny in the forecastle. So far as we can learn 
 
 from what we can hear through the bulkheads 
 
 Mr. KEYES, for Abington, (interrupting). I 
 am not very particular, generally, about what 
 place is assigned me by gentlemen ; but in this 
 instance, I beg that the gentleman from Boston 
 will say cabin, or quarter-deck, and not forecastle. 
 Mr. HILLARD, (resuming). Well, Sir, from 
 whatever part of the ship the voice comes, we 
 learn from it that the Committee were moved by 
 the wish to keep political power in the hands of 
 the party which now enjoys it. The line of 
 legitimate succession was not to be broken. This 
 is a legitimate motive for political conduct, and I 
 think the better of the gentleman for Abington 
 for his frank avowal of it. We all feel this ; we 
 all act upon it ; but we do not often speak it out 
 so openly. There are but two houses in this 
 world, Sancho Panza says, the house of Have, and 
 the house of Want. Just now, it is my house 
 that wants, and his house that has. I profess to 
 be a party man ; and I hold that the preservation 
 of party organization and the maintenance of 
 party ascendency are motives upon which all party 
 men must of necessity act, to a certain extent. 
 
 Now, as to the amendment of the gentleman 
 from Natick, (Mr. Wilson,) so far as I under 
 stand it, I am ready to go for it. But I admit 
 that I have no claim to speak upon this subject 
 with any authority, for I have not been in a town 
 meeting since I was twelve or fourteen years old. 
 For this reason, I am ready to admit that the tes 
 timony of the gentleman from Framingham, (Mr. 
 Train,) is much more important than any I, 
 who have lived in a city all my life, am able 
 to bring. But so far as I am able to judge, 
 hold, that in town meetings, the rule of the 
 majority should always be applied strictly and 
 exclusively. I would keep out of the town 
 meetings the plurality principle, and under no 
 circumstances, nor for any considerations, would 
 I allow it to intrude here. The town meeting is 
 a pure democracy ; and as I hold to the govern- 
 
 II 3 
 
 ment of the majority, so far as it is practicable, as 
 an essentially democratic principle as this is the 
 very breath of the nostrils of democracy, I would 
 not introduce any principle at variance with it 
 into these primitive democracies. And, Sir, I do 
 not believe that in the long run, the application of 
 the majority principle here will occasion any seri 
 ous inconvenience ; because, the elements which 
 make the application of the plurality rule necessary 
 in many cases, cannot apply in small towns, or 
 in towns of moderate size, because I assume that 
 you cannot have three parties acting separately 
 and I wish to be understood as making the re 
 mark generally, without reference to the present 
 state of things. I say, you cannot have three 
 parties acting separately, unless there are prizes 
 or objects of some considerable importance to be 
 struggled for ; and I do not think that any offices 
 or favors that are to be distributed or given out 
 in the town meeting, are of sufficient consequence 
 to produce that result. The natural tendency in 
 our communities is for men to arrange themselves 
 under the banners of one of two parties. The 
 worst that could happen would be, that a certain 
 number of towns would go unrepresented. This 
 would be no public or general misfortune. It 
 would be an inconvenience to the particular con 
 stituency not represented, and no more. In plain 
 English, it would be nobody s business but theirs. 
 Mr. WHITNEY, of Con way. I have a strong 
 desire to say a few words, before a final vote is 
 had upon this subject. Gentlemen from differ 
 ent sides of the House have attacked this Report, 
 it seems to me, without a reasonable considera 
 tion of its merits. Some gentlemen tell us there 
 is no principle involved in this whole matter ; 
 that we are only discussing the adoption of a rule 
 for governmental action. Others urge that the 
 embodiment of true republican principle lies in 
 the plurality rule alone ; while others claim that 
 any departure from a positive majority, is a de- 
 partiire from the true democratic faith. Now, 
 Sir, from what I heard in our previous discus 
 sions upon this subject, I had been led to believe 
 that every member of this Convention concurred 
 in the opinion, that the first principle upon which 
 all our civil institutions were established, was, 
 that a majority of the people were only entitled 
 to rule ; that sovereignty was acknowledged to 
 reside only in the expressed will of a majority of 
 the whole people. I did suppose that upon this, 
 as a principle, we were all agreed ; that we had 
 agreed that this was the principle upon which the 
 Constitution of 1780 was founded; and that this 
 was the principle upon which our present Con 
 stitution now rested, as an established fundamen 
 tal doctrine ; and that under the present Consti- 
 
162 
 
 ELECTIONS BY PLURALITY. 
 
 [61st day. 
 
 Tuesday,] 
 
 WHITNEY. 
 
 [July 19th. 
 
 tution, this idea was intended to be carried out 
 in all our elections ; but it is true, in the present 
 Constitution, in case the majority of the people 
 fail to elect the governor of the Commonwealth, 
 then the people delegate their authority to their 
 agents. Let us see what the Constitution now 
 says : 
 
 " But if no person shall have a majority of 
 votes, the House of Representatives shall, by bal 
 lot, elect two out of lour persons who had the 
 highest number of votes, it so many shall have 
 been voted for; but, if otherwise, out of the 
 number voted for ; and make return to the Sen 
 ate of the two persons so elected ; on which, the 
 Senate shall proceed, by ballot, to elect one, who 
 shall be declared governor." 
 
 Gentlemen speak of a great departure in this 
 Report, from the majority principle, as recognized 
 in our present Constitution, in this respect. Why, 
 Sir, the lleport is precisely the principle of the 
 present Constitution. It is an embodiment of 
 the same idea precisely, although the language is 
 somewhat changed. You have provided, by this 
 lleport, that certain officers now elected by the 
 legislature shall be elected by the people, if they 
 can elect them by a majority of their votes, but 
 if they cannot so elect them, then you provide that 
 they shall be elected by the legislature, the same 
 as under the present Constitution. Well, Sir, 
 no evil can grow out of this amendment, if our 
 present Constitution is right, certainly, for in one 
 case these officers are elected by a majority of the 
 people, and in the other they are to be elected by 
 the same number, or otherwise precisely as we 
 now elect them ; in this particular, this lleport 
 coincides precisely with the method recognized in 
 the old Constitution. Now, Sir, is that principle 
 a correct one, as it stands in the old Constitu 
 tion ? If it is, then that upon which the lleport 
 of your Committee rests is also correct, for it is 
 identically the same thing. And when gentle 
 men object to the Report because it is a departure 
 from the majority principle, they object to our 
 present Constitution which in the minds of 
 some gentlemen is perfect. We agree that it is a 
 departure, to some extent. We have departed in 
 the election of officers to be voted for by the 
 whole people of the State, only so far as has been 
 demonstrated that a departure was necessary, and 
 no farther. We abide by the old Constitution in 
 the main, in the election of State officers. 
 
 But other gentlemen say there should be a 
 departure, in toto that the plurality is the prin 
 ciple. Well, Sir, be it so, for the purposes of the 
 argument. Suppose it is the principle, have we 
 not accommodated these gentlemen in this lleport, 
 in a measure ? Have we not adopted the plural 
 
 ity in every case where a political necessity can 
 be shown to exist r I take it the people have no 
 attachment to the rule of a less number than a 
 majority, as a principle. They consent to the 
 rule of a lesser number than a positive majority, 
 as a political necessity, growing out of the multi 
 plicity of parties. This lleport adopts the plural 
 ity system of the election of all the officers except 
 those which are now elected by the legislature. 
 It leaves these officers to be elected by a majority 
 of the people, if a majority can elect. Now, 
 where is the great departure from principle in 
 this lleport, which gentlemen talk so much about, 
 and say has been concocted in a pot-house, eating- 
 house, or somewhere else ? 
 
 But the gentleman from Natick, (Mr. Wilson,) 
 objects to it, because it gives the plurality system 
 in the choice of representatives ; and says, sooner 
 than choose by plurality, towns will go unrepre 
 sented, and vote not to send. Now, I submit to 
 that gentleman, if in his sober judgment, he 
 believes the towns will be less likely to send rep 
 resentatives under this third resolution, giving 
 the plurality choice upon the second ballot, than 
 they will under the present system ? I put it to 
 every member of the Convention, if the towns 
 will not, in nine cases out of ten, be less likely to 
 return full delegations under the system proposed 
 by the gentleman from Natick, than under that 
 proposed in the lleport of the Committee ? It is 
 not because the towns do not want to be repre 
 sented, that they do not send their full quota of 
 representatives. They like to be represented, but 
 every man is attached to his own party, and dis 
 likes to give up in favor of another party ; they 
 also dislike these repeated elections, and there 
 fore they allow themselves to go unrepresented ; 
 and perceiving no prospect of a choice, they vote 
 not to send. I think there is no weight in the 
 objection of the gentleman from Natick. 
 
 The gentleman for Abington, (Mr. Keyes,) has 
 well answered the argument of. the gentleman, 
 that a third part of the people of the Common 
 wealth, from the small towns, will choose the 
 governor. The case has never arisen, and never 
 will arise, when all the small towns will array 
 themselves on one side, and all the large towns 
 upon the other. There always will be some of 
 the small towns which will sympathize with the 
 large o::es, and there always will be some of the 
 large towns that will sympathize with the other 
 small towns ; and the case, therefore, will never 
 arise where a portion of the House of Represent 
 atives, representing only a third part of the peo 
 ple, will choose the governor. Under this reso 
 lution, if adopted in your Constitution, I verily 
 believe you will always have your governor 
 
61st day.] 
 
 ELECTIONS BY PLURALITY. 
 
 163 
 
 Tuesday,] 
 
 WHITNEY. 
 
 [July 19th. 
 
 chosen ; if not by a majority of the people them 
 selves, by the representatives of a majority of the 
 entire people of the Commonwealth. And how 
 is the case where the majority rule is applied 
 exclusively ? Why your governor has often been 
 chosen by a minority during the last eight years. 
 Where there are third parties, there always will 
 be vacancies under the majority rule. And under 
 that rule, a small majority, by possibility, may 
 choose your governor. And I therefore think 
 that this argument, as applied to the Report of this 
 Committee, is entitled to no weight at all. 
 
 The gentleman from Framingham (Mr. Train) 
 said that this Report would furnish an opportunity 
 for " truck and dicker." Now, Sir, I say that if 
 there be any such opportunit) furnished any 
 where, it cannot be charged upon this Report, or 
 upon this Convention, should it adoj t this Report ; 
 because in these particulars it copies the present 
 Constitution ; and therefore the majority of this 
 Convention can in no sense be charged by those 
 who have opposed all alterations in the Constitu 
 tion when they leave the Constitution as it is, 
 with having furnished opportunities for " truck 
 and dicker." It is chargeable upon the present 
 Constitution entirely, and not upon the Report 
 now before us. Your present Constitution makes 
 the same provision, so far as elections by the 
 legislature is concerned ; and the fault, if fault 
 there be, rests upon that, and not upon us. The 
 people have not complained, so far as I know, of 
 the present mode of choosing governor ; they 
 have made no call upon us to change the present 
 mode of choosing their State officers. In fact, I 
 am not aware that any fault has been found with 
 it ; and therefore, I take it that the argument, so 
 far as relates to alterations of the Constitution for 
 choice by the legislature in case of failure to elect 
 by majority our State officers, is, in this particular, 
 groundless, with regard to the election of repre 
 sentatives, and other officers that the people must 
 elect, if elected at all. 
 
 Every gentleman knows the effect upon com 
 munities, of frequent elections, where they are 
 continued day after day ; where neighbor is 
 arrayed against neighbor, and friend against 
 friend ; ill-feeling is often engendered, ill-blood 
 is produced, discord and strife provoked, all of 
 which tend to degrade your electors, and bring 
 them into disrepute, and thus drive the better 
 portion of the people away from the exercise of the 
 sacred right, and high privilege of self-govern 
 ment. 
 
 Now, Sir, if you want to make the people love 
 and respect their government, let the people have 
 an opportunity, at the ballot-box, to elect by a 
 practicable number of their votes ; and in case of 
 
 their failure to elect by a majority, let a plurality 
 suffice, in the election of members of the legisla 
 ture ; and let that legislature be chosen by the 
 people, without engendering that ill-feeling and 
 party animosity which is the certain result of fre 
 quent elections. But to return to the matter of 
 " truck and dicker." I hold that, as to this mat 
 ter, the Report of the Committee leaves it pre 
 cisely where the present Constitution leaves it, 
 with the exception that where the present Con 
 stitution allows the House of Representatives 
 four candidates to "truck and dicker" upon, four 
 persons to be voted for, this Report furnishes only 
 three ; therefore, I undertake to say that this 
 Report has lessened the number of chances to 
 " truck and dicker," and to that extent it has 
 removed the objection. 
 
 Now, Sir, I think the repeated trials to elect, 
 to which the people are subjected under a major 
 ity rule, is what the people of this Common 
 wealth wish to change in the Constitution. They 
 look upon the plurality rule as a necessity in 
 some cases ; and they wish to adopt this rule only 
 so far as a necessity exists, retaining the great 
 principle established by our fathers : that in a 
 majority, the only acknowledged sovereignty 
 resides in an organic law, wherever it can be 
 preserved consistently with the practical conven 
 ience of the great body of the people. And I 
 think we ought to transmit to our posterity this 
 great principle in our constitutional law. 
 
 I intend to vote for the Report of that Com 
 mittee, as I cannot see any great objection to it, 
 or that departure from principle which gentlemen 
 have endeavored to make out. It provides that 
 every elective officer, excepting such as are elected 
 by the legislature, shall be elected under the plu 
 rality rule. If the gentleman from Boston, (Mr. 
 Schouler,) favors the plurality rule, why does he 
 not favor the Report of this Committee ? 
 
 Mr. SCHOULER. I did not object to this 
 part of the Report, but the other portion of it. 
 
 Mr. WHITNEY. I beg pardon of the gentle 
 man. I am happy to hear that he is intending 
 to support the Report of the Committee. I would 
 much prefer, in the case of representatives to the 
 general court, to have had a plurality upon the 
 first choice. In the terms of the Committee, gen 
 erally, it is true, there is an opportunity to ballot 
 twice upon the same day, and there may be some 
 thing gained by a second ballot. If men come 
 together, and a caucus nomination is not accepta 
 ble to the sober judgment of the people of the 
 town, they will repudiate that caucus nomination 
 on the second ballot. They will once vote, and 
 thus get an honest expression of sentiment upon 
 the first ballot, as to who is the best man to rep- 
 
164 
 
 ELECTIONS BY PLURALITY. 
 
 [61st day. 
 
 Tuesday,] 
 
 WHITNEY ALLEN FKOTHINGHAM. 
 
 [July 19th. 
 
 resent them, and after having obtained that ex 
 pression of opinion by this method, the Consti 
 tution will allow them to change the mode of 
 election, if they fail to make choice by majority, 
 to that of plurality. I think that such a plan will 
 not work any great inconvenience to the people. 
 I go for the majority rule as a principle ; but I 
 say we cannot abide by it, and as the gentleman 
 for Manchester, (Mr. Dana,) said, in another 
 matter the other day, we cannot carry theories 
 always into practical demonstration in our gov 
 ernment. We cannot abide strictly and legiti 
 mately by theories, and the theory which I take 
 to be right here is the government of the majority. 
 We depart from it in this case only so far as our 
 convenience compels us to do so, and we give 
 the people the opportunity to prevent any snap 
 judgment, as the gentleman from Pittsfield, (Mr. 
 Briggs,) calls it, by a speedy vote. We will re 
 quire a majority the first time. I believe the 
 people all over the Commonwealth are looking to 
 this Convention to lighten their burdens in refer 
 ence to repeated elections. I hope this Conven 
 tion will stand by the Heport of the Committee, 
 and, for one, I design to vote against the amend 
 ment of the gentleman from Natick, (Mr. Wilson,) 
 for I think it has produced confusion, and will, if 
 adopted, leave this matter in a worse state than 
 it was before. I intend to vote for the plurality 
 in every case where the people are liable to be 
 called together the second time, for an election ; 
 and in every case where the Constitution provides 
 that they shall now be chosen by the legislature, 
 I propose to let the Constitution remain as it is, 
 only giving the opportunity to the people to elect 
 by majority, if they will, if not, let State officers 
 remain where they now are in the Constitution. 
 By so doing, I see no great departure from prin 
 ciple. I think that upon a reexamination of the 
 Report of the Committee, gentlemen will not find 
 it such a monstrosity as it has here been, by 
 some gentlemen, represented to be. I shall abide 
 by the Heport of the Committee exactly as it came 
 from their hands. 
 
 The qxiestion was then taken on Mr. Wilson s 
 amendment, and there were ayes, 59 ; noes, 145. 
 
 So the amendment was rejected. 
 
 Mr. ALLEN, of Worcester. I move to amend 
 by striking out the third resolution entirely. I 
 will not multiply words at this hour of the day. 
 Striking out the third resolve, will leave the Con 
 stitution where we fcmnd it, and surely that must 
 be a very good condition of things, and a wise 
 provision of the present Constitution, when gen 
 tlemen, upon all hands find it so difficult to 
 change it. Upon this question of plurality or 
 majority, gentlemen have changed their opinions 
 
 from day to day ; not only single individuals, but 
 bodies of men. My friend from Pittsfield, (Mr. 
 Briggs,) and those with whom he associates, have 
 acknowledged the changes which have been 
 wrought in their minds, and, indeed, so rapidly 
 have they been, that my head grows dizzy when 
 I think about them. I was gratified with the 
 course of the conservative members of this Con 
 vention in this one particular. I would not pre 
 serve the rust which remains in the Constitution ; 
 but, as there is great diversity of opinion in 
 respect to any modification of one of its substan 
 tial propositions, I propose that we leave the Con 
 stitution, in regard to representation, just where 
 we found it. I have not heard any great com 
 plaint, only in respect to the election of repre 
 sentatives. I believe that the practice which is 
 allowed for the purpose of a choice, three days in 
 November, and one in December, is amply suf 
 ficient on all ordinary occasions. I believe no 
 serious difficulty has been found in this matter in 
 the towns of the Commonwealth, when we had 
 two parties, and none even when the Common 
 wealth has been divided into three. It was 
 necessary to introduce another element, but I ap 
 prehend it will soon be removed from the political 
 affairs of the Commonwealth, and we shall find 
 that we shall go on hereafter, as we have hereto 
 fore, quite comfortably and conveniently, so far 
 as respects the manner of choosing representa 
 tives, and the principles which will govern them, 
 under the Constitution as it now stands. Differ 
 ing in almost everything which has been proposed, 
 let us unite in this matter, and retain that pro 
 vision of the Constitution to which I have alluded, 
 which has existed so long. 
 
 Mr. FROTH IN GUAM. I shall go for as 
 much of the plurality principle, as I can get ; for 
 I believe there is a demand upon the part of the 
 people for it, and its adoption would save time 
 and expense, and certainly party feeling. We 
 have taken the vote upon this question several 
 times. Yesterday, the gentleman from Plymouth, 
 (Mr. Davis,) moved an amendment, the effect of 
 which was to strike out this plurality rule after 
 the first choice. Then, this afternoon the gentle 
 man from Natick, (Mr. Wilson,) to my great 
 regret, moved an amendment, which amounted to 
 the same thing. Now, we have another amend 
 ment moved by the gentleman from Worcester, 
 (Mr. Allen). All of these amendments would 
 have the tendency of destroying the plurality 
 rule, for the choice of representatives. I have 
 nothing more to say, at this time, but I appeal to 
 members of the Convention to stand fast by this 
 rule, for the election of members to the House of 
 Representatives ; for it will be sure, notwithstand- 
 
61st day.] 
 
 ELECTIONS BY PLURALITY. 
 
 165 
 
 Tuesday,] 
 
 FRENCH HOPKINSON HILLARD. 
 
 [July 19th. 
 
 ing what has been said by the gentleman from 
 Natick, to cure that great evil non-representa 
 tion. 
 
 Mr. STETSON. I move the previous ques 
 tion. 
 
 Mr. FRENCH, of Berkley. I hope the gen 
 tleman from Braintree will withdraw his demand 
 for the previous question, for a moment. I wish 
 to offer the following amendment : 
 
 But in case of the failure of an election on such 
 ballot, then at a subsequent meeting, called for 
 the purpose, the person having the highest num 
 ber of votes, shall be deemed, and declared to be 
 elected. 
 
 I have said a word in regard to this amend 
 ment before, and I labored under an entire mis 
 take, when I supposed that the amendment offered 
 by the gentleman from Natick, had for its object, 
 the same effect. 
 
 Mr. STETSON. I rise to a question of order, 
 and it is this : I moved the previous question, 
 and I would like to know if debate can go on ? 
 
 The PRESIDENT. It is not in order for the 
 gentleman from Berkley to discuss the merits of 
 the question. 
 
 The previous question was seconded, and the 
 main question ordered. 
 
 The PRESIDENT. The first question is upon 
 the amendment offered by the gentleman from 
 Worcester, (Mr. Allen,) to strike out the third 
 section. 
 
 The question was taken on the amendment, 
 and it was rejected. 
 
 Mr. HOPKINSON, of Boston. I rise to a 
 question of order. I find the first resolution pro 
 vides, substantially, that the governor, among 
 other officers, in case of a failure of an election by 
 the people, shall be elected in a particular manner 
 pointed out, to wit : that a certain number of 
 candidates shall be voted for by tr-e House of 
 Representatives, that they shall return the per 
 sons so elected to the Senate, out of which num 
 ber the Senate is to make an election. I find by 
 referring to the record of the 30th of May last, 
 that this Convention, by a very large vote, passed 
 upon this subject, and adopted a different provi 
 sion. The resolve adopted on that day, reads 
 as follows : 
 
 Resolved, That it is expedient to alter and 
 amend the Constitution, so as to provide that in 
 case of the failure of an election of governor by 
 the people, he shall be elected by the Senate and 
 House of Representatives, by joint ballot. 
 
 I suppose it is a general parliamentary rule, 
 which, if it has not been applied here, has been 
 frequently applied, that when a particular matter 
 
 has been finally passed upon, a reconsideration 
 may be moved within a certain time ; but if that 
 time has passed by, such a reconsideration cannot 
 be moved. It appears to me that this provision 
 is a violation of the rule, as it makes provision 
 for the choice of governor, by another method than 
 that already passed upon and determined by the 
 Convention. 
 
 The PRESIDENT. The suggestion as to the 
 question of order amounts to this : that this propo 
 sition is inconsistent with another proposition, 
 which has been assented to by the Convention. 
 It, therefore, revolves itself into a question of 
 consistency, and that is a matter for the Conven 
 tion to decide. The Chair understands the general 
 parliamentary rule to be that where a subject has 
 been disposed of, the same subject cannot be pre 
 sented again. But, that rule is not invariably 
 adhered to, under the general parliamentary law. 
 It is also provided for by a rule of legislative 
 bodies, as by our House of Representatives, that 
 when a question has been rejected, that question 
 shall not be presented again. But, that is not the 
 case in this instance. 
 
 Mr. BRIGGS. I would like to have the reso 
 lution which has been heretofore adopted, read. 
 
 It was accordingly read. 
 
 The PRESIDENT. This is, in the judgment 
 of the Chair, a question of consistency, and not 
 of order, and is so laid down in Jefferson s Man 
 ual, which is the standard authority. 
 
 Mr. HOPKINSON, of Boston. I would in 
 quire, whether, when a matter has been acted upon, 
 it can be taken up again ? 
 
 The PRESIDENT. The Chair cannot reply 
 to a question of that general character, but only 
 with reference to this particular case. The deci 
 sion of the Chair is, that it is not for the Chair 
 to decide, whether this is consistent or inconsist 
 ent ; it is for the Convention to determine. 
 
 Mr. BRADBURY, of Newton. I would ask 
 the Chair, as a question of order, would not this 
 be a matter for discussion, and as this is like a 
 question of order, whether, the previous ques 
 tion being ordered, it will cut off these two con 
 tradictory acts of the Convention ? 
 
 The PRESIDENT. The rule is, that after the 
 previous question has been ordered, the main 
 question shall be taken without debate. 
 
 Mr. HILLARD, of Boston. I suppose that 
 the previous action of the Convention has been 
 limited to an expression of opinion, that it is ex 
 pedient to do so and so ; and I take it, that these 
 expressions of opinion will be put into definite 
 shape, and come up for the action of the Con 
 vention ; and that when so brought before the 
 Convention, and the inconsistencies are point- 
 
166 
 
 GENERAL LAWS FOR CORPORATIONS. 
 
 [62d day. 
 
 Wednesday,] 
 
 CUSHMAN CHAPIN. 
 
 [July 20th, 
 
 ed out, instructions can be given so as to obviate 
 them. 
 
 Mr. GRAY, of Boston. I would ask for a 
 division of the question, so far as relates to the 
 first resolution, so that it may be taken upon that 
 separately. 
 
 The PRESIDENT. The question will be 
 taken on ordering the first resolution to a second 
 reading. 
 
 The question being taken, there were, upon a 
 division ayes, HO ; noes, 90. 
 
 So the resolution was ordered to a second read 
 ing. 
 
 The question was then taken separately, on 
 ordering the second resolution to a second reading, 
 and it was decided in the affirmative. 
 
 Mr. H ALLETT, for Wilbraham. I ask for the 
 yeas and nays on ordering the third resolve to a 
 second reading. 
 
 The yeas and nays were not ordered, and the 
 question being taken on ordering the third 
 resolution to a second reading, it was decided in 
 the affirmative. 
 
 The question was taken on each of the succeed 
 ing resolutions separately, and they were ordered 
 to a second reading. 
 
 On motion by Mr. DUNCAN, of Williams- 
 town, the Convention then adjourned until nine 
 o clock, to-morrow morning. 
 
 WEDNESDAY, July 20, 1853. 
 
 The Convention assembled pursuant to ad 
 journment, and was called to order by the Presi 
 dent at nine o clock. 
 
 Prayer by the Chaplain. 
 
 The Journal of yesterday was read. 
 
 Lieutenant- Governor. 
 
 On motion of Mr. CUSHMAN, of Bernardston, 
 the amended resolves on the subject of the lieu 
 tenant-governor were taken from the table and 
 placed upon the Orders of the Day. 
 
 Orders of the Day. 
 
 The Convention proceeded to the consideration 
 of the Orders of the Day, the first item being the 
 motion of the gentleman from Fall lliver, (Mr. 
 Hooper,) to reconsider the vote by which the 
 resolves relating to the incorporation of new towns 
 had been indefinitely postponed. 
 
 On motion by Mr. THOMPSON, of Charles- 
 town, this item was passed over. 
 
 The resolves on the subject of the Judiciary, and 
 the resolves on the subject of Harvard College 
 were also passed by. 
 
 General Laivsfor Corporations. 
 
 The resolve on the subject of General Laws for 
 Corporations, being the next item on the calendar, 
 was taken up for consideration. The question 
 being upon its final passage. 
 
 The resolve was read as follows : 
 
 Resolved, That it is inexpedient to incorporate 
 into the Constitution a provision that corporations 
 shall not be created by special act, when the object 
 of the incorporation shall be attainable under 
 general laws. 
 
 Mr. CHAPIN, of Worcester. I voted against 
 the resolution as amended, when it was before us 
 on a previous occasion ; and I wish to give some 
 reason why I did so. It seems to me there is a 
 misapprehension as to its meaning and operation, 
 because I find that gentlemen voted in its favor 
 on precisely different grounds. Some voted for 
 it because it meant nothing, in their opinion ; and 
 others, because, I am bound to suppose, they 
 expected it would accomplish something. Now 
 the difficulty which I have in regard to it, is this : 
 when I vote for a resolution, I wish to vote for 
 one which is intelligible to myself, and the mean 
 ing of which I can, at least, think I understand. 
 Now, I wish to make one proposition, and to ask 
 this question of the members of this Convention : 
 Do they wish to adopt in the Constitution a pro 
 vision which will forever forbid the legislature 
 granting any charter for a railroad ? Some would 
 say they do, and others that they do not. Now 
 I ask if, upon that resolution, there is not a ques 
 tion whether the legislature will have the right to 
 grant such a charter ? What is the meaning of 
 the clause " when the object of the incorporation 
 shall be attainable under general laws." If it 
 means that the legislature are to decide whether 
 it is attainable or not under general laws in exist 
 ence, why not say so ? If it means an incorpora 
 tion, the object of which is, in its nature capable 
 of being attained under general laws which may 
 be passed, why not say so ? There is an uncer 
 tainty about it which makes it difficult for me to 
 vote for it. I would not be willing to vote to 
 give to the legislature power, under a general law 
 to charter a corporation which should have the 
 right to make a railroad or a turnpike so that the 
 company might exercise the right of eminent 
 domain, and so that it might appropriate your 
 land and mine at its election, reserving to us only 
 the right to have compensation. I believe that it 
 should be left to the legislature to pass special 
 acts for corporations of this kind. I am not an 
 advocate for vested rights, but I am an advocate 
 for the doctrine of good faith in legislation. If 
 you and I, Sir, have invested our money in a 
 
62d day.] 
 
 GENERAL LAWS FOR CORPORATIONS. 
 
 167 
 
 Wednesday,] 
 
 CHAPIN SCHOULER. 
 
 [July 20th. 
 
 railroad originally, it has notheen for the purpose 
 of making money by the investment, but for the 
 purpose of encouraging the enterprise. Are we 
 to make it necessary for the legislature to pass a 
 general law on the subject, so that this question 
 can never be examined by the legislature as each 
 case arises and so that A, B and C may estab 
 lish railroads where they please, and locate them 
 over every acre of the Commonwealth without 
 any special legislation upon the subject ? I do 
 not say that this resolution necessarily involves 
 this result, but I do say that it leaves it in vague 
 ness and uncertainty, and I am unwilling to 
 adopt a resolution which contains in itself the 
 elements of uncertainty, doubt, and consequent 
 litigation. 
 
 I find, on looking at the Constitution of New 
 York, there is a provision somewhat like this 
 resolution ; but there is in that Constitution an 
 expression like this : " when in the judgment of 
 the legislature it shall be expedient." Now sup 
 pose the legislature of Massachusetts should grant 
 a special charter for a railroad, this resolution 
 standing as a part of the Constitution. You go 
 on and take stock in that road ; and by and by, 
 for some reason, you refuse to pay your assessment. 
 The road is under way, the money has been 
 invested, but persons who have taken stock, refuse 
 to pay their assessments. Suppose they are pro 
 ceeded against, and they come before the court 
 and say that the legislature has no constitutional 
 right to grant that special act. Then comes the 
 question whether it was constitutional. It may 
 be decided that this resolution means that no 
 special act shall be passed when there is a general 
 law upon the subject. Well, if it means that, it 
 does not accomplish what is intended by its friends, 
 because, all that the legislature would have to do 
 would be to repeal the general law, whenever a 
 special act should be required. It seems to me 
 that the amendment introduced the other day by 
 the gentleman from Oxford, contains the true 
 principle. He offered an amendment that certain 
 corporations for certain specified purposes, should 
 not be chartered, except under general laws ; and 
 he specified what they should be. They were 
 subjects in relation to which the principles are 
 well settled, and which are well understood by 
 the community. But it seems to me that there 
 is a vagueness about this resolution which will 
 give rise to litigation hereafter, and this in the 
 establishment of an organic law of the Common 
 wealth we should carefully avoid ; therefore, un 
 less this can be amended so as to make it certain 
 as to what we are doing, I feel bound to vote 
 against it as I did before. 
 
 Mr. SCHOULER, of Boston. After the very 
 
 decided vote, in favor of this resolution the other 
 day, it may appear like hardihood or impudence, 
 to rise in the Convention, and attempt to speak 
 against it. But, I do not believe that the Con 
 vention fairly understood the whole matter, when 
 they voted upon it before. The question was 
 taken immediately, after a very able and eloquent 
 speech by the gentleman from Conway, (Mr. 
 Whitney,) and I think that he succeeded in pre 
 senting his side of the question exceedingly well, 
 by leaving unsaid certain things which had better 
 been said. The whole strength of his argument 
 was, that we should have a general system of 
 corporations. To that, I have no objections. 
 We have now, upon our statute books, a general 
 corporation act, for manufacturing and mechani 
 cal, and other business purposes of that kind. 
 We have also, a general law with regard to banks. 
 I have no doubt that these laws will stand per 
 manently, upon the statute books of this Com 
 monwealth. But, I am opposed to taking from 
 the people forever, the right to say, whether they 
 shall have the right, under any circumstances 
 whatever, to make a special act, for any special 
 purpose. I desire to let the Constitution remain, 
 so that the people shall have the power. I do not 
 wish, for instance, that the people of 1853, shall 
 bind for all time to come, the people of other 
 years. I wish the people to have the right to say 
 through their representatives, after they have 
 heard a case, whether the legislature shall act 
 upon it or not, keeping these general laws all the 
 time upon the statute book, so that whoever wish 
 to form themselves into corporations under these 
 general laws, may do it. 
 
 There is another objection to this resolution, 
 and one which the gentleman from Conway, 
 avoided altogether ; and that is : if we place this 
 provision in the Constitution, we give to those 
 special corporations now in existence banking 
 corporations a monopoly for the next twenty- 
 five years at least ; for their charters extend until 
 1780, and they were all chartered the year before 
 last. The very legislature which passed this gen 
 eral banking law, also re-chartered every bank in 
 the Commonwealth. The very legislature which 
 passed the general joint stock law, also incorpo 
 rated companies for mechanical purposes, so that 
 the theory and argument used upon that occasion, 
 was, that we would have both systems in opera 
 tion ; that is, we should have a general banking 
 law for all those persons who think a general bank 
 ing system is best, and wish to avail themselves of 
 it, and also with regard to joint stock companies. 
 
 The proposition before us is to deprive the leg 
 islature of any supervision whatever over this 
 great question of corporations and I think the 
 
168 
 
 GENERAL LAWS FOR CORPORATIONS. 
 
 [62d day. 
 
 Wednesday,] 
 
 SCHOULEB DAVIS. 
 
 [July 20th. 
 
 argument put forth by the gentleman from Wor 
 cester, this morning, is, of itself, conclusive, that 
 we ought not thus to tie up the hands of the leg 
 islature. There is no doubt at all but that we 
 can pass a general law with regard to railroads, as 
 well as with regard to banks ; and I ask whether 
 it is the best, the purest, and the surest policy to 
 allow persons to form themselves into corpora 
 tions for railroad purposes, and run a railroad 
 through our land, if we have any, to any point 
 they please ; whether the effect of it will not be 
 to depreciate the property of individuals now in 
 corporations of that kind, and whether it will not 
 bring up the question of parallel roads ? After 
 men have invested their property upon a pledge 
 of the State, in building railroads, I think it ought 
 to be protected in some degree, upon the faith 
 which the State has given. 
 
 Now, Sir, I think the argument is unanswera 
 ble, that all these matters ought to be kept in the 
 hands of the people, and that we should allow 
 them to do as they think best when the circum 
 stances come up ; and that is all that I desire. I 
 think it is wrong to cramp the legislature of our 
 State in this way. We have already general laws, 
 and I trust that these general laws will remain ; 
 I have no doubt that they always will remain. 
 There was no attempt last year to repeal them, 
 and there will be no attempt to repeal them. It 
 seems to me that there is an argument, and there 
 is a strong reason, why we should keep this great 
 power in the hands of the people, so that they can 
 act upon the cases as they come up, and not for 
 ever exclude them from being heard here through 
 their representatives. I trust that the order will 
 be defeated, and that we shall leave the Constitu 
 tion precisely as it now stands. 
 
 Mr. DAVIS, of Worcester. I trust, Mr. Pres 
 ident, that this proposition will be adopted ; and 
 it strikes me that if the members of the Conven 
 tion will consider the matter, it would be adopt 
 ed almost by a unanimous vote, if they are desi 
 rous of the prosperity and happiness of the good 
 old State of Massachusetts. It is true that this is 
 an important question ; it is one which is to effect 
 a major portion of the wealth of Massachusetts; 
 because, by the last valuation, there are in this 
 State about six hundred millions of property, and 
 a majority of all this property, or more than 
 three hundred millions, is now tied up in special 
 acts of incorporation, where certain individuals 
 have special privileges over the mass of the people. 
 This has been done substantially and mainly dur 
 ing the last quarter of a centuary. With general 
 laws upon the statute book, last winter there 
 were special acts of incorporation passed by our 
 legislature, to the amount of twenty-six millions 
 
 of dollars ; notwithstanding we had a general 
 banking law upon the statute book, banks were 
 incorporated to the amount of ten millions of dol 
 lars, when there was not specie enough in Mas 
 sachusetts, by the bank returns, to put into these 
 new banks to carry them into operation. Gen 
 tlemen know what the law is, and what men 
 have to swear to, in order to get these banks into 
 operation ; and yet in the face and eyes of the re 
 turns of these banks that there was only three 
 millions of specie, not ten cents to redeem a dol 
 lar, of the deposits for the bills in circulation, 
 ten millions of dollars of capital were created by 
 these special acts last winter, for banks ; and for 
 other business corporations, some sixteen millions 
 more. 
 
 Gentlemen can easily see the whole length 
 and breadth of this question, if they will look 
 at the volumes of our special laws. Here are 
 eight large volumes of special laws for the few, 
 arid two volumes of general laws for the many. 
 This will show that there has been a system of 
 legislation here in this Commonwealth, for the 
 last quarter of a century, for the benefit of the 
 few, and not of the many. Now, the prin 
 ciple of the proposition is to bring corpora 
 tions, whenever practicable, under general laws, 
 so as to legislate for all the people of the Com 
 monwealth. The objection which has been taken 
 by my colleague, (Mr. Chapin,) in my judgment, 
 has no force in this particular ; because, when the 
 application comes up for a special act, it is for the 
 legislature to judge, before they grant it, whether 
 it can be be brought under the general law. There 
 may be cases, and I have no doubt but that there 
 will be cases, in which it will be necessary to 
 grant a special act ; but, whenever they can be 
 brought under general laws, they should be 
 brought under general laws that will apply to the 
 whole subject, and operate alike upon all the 
 people. If gentlemen would go into a considera 
 tion of this matter take up the ponderous vol 
 umes of special acts, and see how much time has 
 been spent in legislating for the few they will 
 perceive that hundreds of thousands of dollars 
 will be saved, in the mere business of legislation, 
 by the adoption of this simple principle ; for, if 
 they will look over the work of last winter, they 
 will perceive that three- fifths of the whole time 
 was spent upon special legislation. Now, the 
 question is and I want gentlemen to meet it 
 directly is it right to legislate for the few or for 
 the many ? Should not our laws operate for the 
 benefit of the whole people of the Commonwealth, 
 and not for the few ? 
 
 In my judgment, Mr. President, if we had not 
 been trammelled by these special acts, wlu ch are 
 
62d day.] 
 
 GENERAL LAWS FOR CORPORATIONS. 
 
 169 
 
 Wednesday,] 
 
 DAVIS CHAPIN. 
 
 [July 20th. 
 
 calculated to cripple, to break down and destroy 
 individual enterprise, the population of Massa 
 chusetts, instead of being a million, would have 
 now been a million and a half; and instead of 
 the property of the Commonwealth amounting to 
 six hundred millions, it would have amounted to 
 a thousand millions of dollars. What has made 
 fifty- five thousand of the native citizens of Mas 
 sachusetts emigrate into the State of New York, 
 where they can live under general laws, and 
 where there is a fair competition in all these 
 branches of business ? 
 
 Yes, Sir, fifty- five thousand of our native-born 
 citi/ens have gone out from Massachusetts, as is 
 shown by the last census ; and they have gone 
 into New York to get a livelihood, simply because 
 they were trammelled here, and all competition 
 was broken down by these corporations. Take an 
 illustration. At first, individuals in this Com 
 monwealth set up establishments for the manu 
 facturing of railroad- cars, and they did well, and 
 were prosperous. By and by it was discovered 
 to be a prosperous business, and people petitioned 
 the legislature, and got an act of incorporation. 
 By the combination of capital they succeeded in 
 putting down prices, and they endeavored to 
 crush every individual who was in the business. 
 They accomplished this, and failed every individ 
 ual in the Commonwealth who was engaged in 
 this business ; and in the effort to do this, they 
 failed themselves. If gentlemen will look into 
 the history of these special corporations, they will 
 perceive for it is obvious 011 the face of it what 
 these special acts are desired for. It is because 
 those who ask for them want special privileges. 
 What are these special privileges for ? They are 
 to enable them to gain an advantage over the 
 masses of the people ; that is all the reason why 
 they come to the legislature for these special acts. 
 But, says the gentleman, this is to open the door 
 too wide, you are going to make more corporations, 
 if you have such a general law. But when this 
 general law comes before the legislature, I have 
 confidence enough in the representatives of the 
 people, to believe that a general law, which is to 
 affect the whole people, will be guarded, so that 
 men cannot get, under a general law, what they 
 get under special laws, where they come into the 
 legislature and have hundreds of petitions for 
 special acts piled up on the table of the House, 
 and, by a system of log-rolling, secure the pas 
 sage of an act giving special and exclusive privi 
 leges. 
 
 Mr. CHAPIN. I wish to inquire of my col 
 league, who is to decide whether the object of the 
 corporation can be attained under general laws or 
 not. 
 
 Mr. DAVIS. The legislature will judge as to 
 that matter. 
 
 Mr. CHAPIN. I suppose that the legislature, 
 under this general law, could pass a special law, 
 declaring that, in their opinion, the object was 
 not attainable under general laws, and should 
 therefore be chartered. I will also ask the gen 
 tleman another question : whether, in his opin 
 ion, the legislature can pass a general railroad 
 corporation act ? 
 
 Mr. DAVIS. There are general laws relative to 
 railroads. I admit that railroads should never be 
 permitted without some action on the part of the 
 legislature ; but yet there may be general laws 
 that will affect the whole. The principle is sub 
 stantially that which has been adopted in other 
 States. It has been adopted in the State of New 
 York, and it has operated well there. If gentle 
 men will look at the last census, and see the tide 
 of population which has gone into that State, they 
 will see how much this system has operated for 
 her advancement, and they will see one of the 
 causes which has driven energetic young men 
 from this State. This leaves it in the power of 
 the legislature to determine the matter. Take, 
 for instance, the banking law of Massachusetts. 
 The general banking law now upon the statute 
 book is much more stringent than these special 
 laws, which have been given to these individuals ; 
 and that is the reason that the bank men do not 
 like it. Under the present system they can issue 
 any amount of money they please, without any 
 thing to redeem it, in direct violation of the Con 
 stitution of the United States, in my judgment. 
 The Constitution of the United States establishes 
 the fact that gold and silver shall be the standard 
 by which we are to estimate the value of our 
 goods, lands, wares, and merchandise ; and yet 
 we have another standard here in Massachusetts. 
 Ten millions of bank capital are created in a 
 single year, and everything is raised in value, not 
 comparing it by the gold and silver standard, but 
 by the paper standard, which is not a representa 
 tion of specie, because, by the last returns of the 
 banks there is not ten cents on a dollar to redeem 
 their circulation and deposits. Why are all these 
 ups and downs in trade, commerce, and manu 
 factures, except from the constant change and 
 variation of the amount of this paper circulation ? 
 And this is done for the benefit of the few, who 
 wring their thousands from the masses. But if 
 these ten millions of bank capital had been cre 
 ated under a general law, instead of being created 
 under special acts last winter, it would have had 
 a material effect upon the prosperity of this whole 
 Commonwealth. The man who sits in State 
 Street has the control of more than seventy mil- 
 
170 
 
 GENERAL LAWS FOR CORPORATIONS. 
 
 [62d day. 
 
 Wednesday,] 
 
 DAVIS GRAY. 
 
 [July 20th. 
 
 lions of dollars the control of all the paper cir 
 culation in New England. Every gentleman 
 knows very well that all the banks pay tribute 
 there. No bank can go into operation in New 
 England, until it pays tribute to State Street ; and 
 whenever they see fit to put on the screws there, 
 and to make money scarce by curtailing the cir 
 culation ten millions, they can do it, and what is 
 the consequence? The farmer s produce falls, 
 and the manufacturer s produce falls in value 
 all the products of labor fall, and the knowing 
 ones can take the advantage and buy up what 
 they want. The screw is raised, money is plenty, 
 prices increa c e, and the knowing ones reap the 
 harvest ; and the people suffer, and are defrauded 
 in that way. Their honest earnings are taken up 
 in this manner ; whereas, if all this business had 
 been entered into under this general banking law, 
 which stands upon your statute book, they could 
 only issue so far as they have the money to re 
 deem their paper with, and every bill-holder 
 would have been safe with his bills. But no ! 
 they go on passing these charters, these special acts 
 to give privileges to the few at the expense of the 
 many. I think there is a sufficient guard, if the 
 legislature should pass a general act, for they will 
 do it with vastly more care than they exercise in 
 granting a special act. It is impossible for them 
 to review all these special acts with much care, 
 as numerous as they are. Nobody knows the 
 law with regard to these special acts. You may 
 ask the best lawyer in this Convention about any 
 particular charter, and he could not tell you un 
 less he had happened to have occasion to examine 
 it, and thus to become familiar with its provis 
 ions. But if we had a general law, every lawyer 
 would understand it. Now, the simple proposition 
 is to bring these special acts under a general law. 
 Why, Sir, they have become so numerous in this 
 Commonwealth, that as gentlemen will see if 
 they turn to document No. 37 it takes ninety 
 pages, to enumerate these special acts ! Here is a 
 return made by the Secretary of State, filling 
 ninety pages, just to name these special acts. 
 We have gone to the extreme of any State in the 
 Union. If gentlemen will look at the special acts 
 of other States, they will find nothing to be com 
 pared with it. Now, Sir, I ask for this simple 
 provision ; it leaves it for the legislature to judge 
 whether these corporations require a special act, 
 as each case presents itself. I know, that under 
 different legislatures, there might be different de 
 cisions. There is a certain set of gentlemen who 
 think that it is proper to legislate for the few at the 
 expense of the many, and they would judge that 
 it was best to grant a special act ; but whenever 
 you have a legislature who believe that they ought 
 
 to legislate for the many, and not for the few, 
 then they would give them a general law. 
 
 I see no objection to it, nor do I see why it 
 does not obviate the objection of the gentleman 
 from Boston, (Mr. Schouler,) entirely ; that it 
 leaves it with the legislature to determine ; so that 
 either a railway, or other corporation, can obtain 
 full privileges to carry forward any needful enter 
 prise. But to give privileges to any corporation, 
 that will tend to crush individual enterprise ; to 
 all that class of corporations I am opposed. If 
 they are placed under a general law, then there is 
 no special privilege, and they will do no harm. 
 
 Mr. GRAY, of Boston. It appears to me, and 
 I think it will so appear to most gentlemen, who 
 look coolly at the question, that there are, in fact, 
 two questions before us ; and I certainly think 
 with all respect to some of the gentlemen who 
 have preceded me that these two questions have 
 been confounded. These two questions are, first, 
 that corporations and, I will add, a great num 
 ber of corporations are an evil ; that it is an evil 
 to have this system of carrying on business by 
 means of joint stock companies. Then, Sir, the 
 next question is suppose that it is not an evil, 
 but a benefit upon the whole, at any rate a thing 
 not to be prohibited how shall these corporations 
 be created r What is the most convenient and 
 proper way of doing it ? Now, I think, that 
 these two ideas have been confounded by gentle 
 men in their arguments. We are told of millions 
 of capital being locked up in corporations ; we 
 are told that the legislature favor a few among the 
 many ; and we are farther told, that these corpo 
 rations destroy individual competition. That is 
 one branch of the question. And if all these 
 arguments are true to the extent to which gentle 
 men have maintained them, what would be the 
 course which we ought to take ? Why, Sir, I 
 think that an unbiased observer would naturally 
 say that your course is to have no more of them, 
 and to put an end, as far as you can legally, to 
 all that you have got if not on a principle of 
 immediate abolition, at least, on one of gradual 
 abolition of these joint stock companies. But, 
 Sir, nothing of the kind is proposed here. I can 
 admit every word uttered by the gentleman from 
 Worcester, (Mr. Davis,) and those who have 
 taken the other side of the argument, and then I 
 would ask them, what do you intend to propose ? 
 Do you make one corporation less ? Not one. 
 What then ? Why, you give them a different 
 origin. You change their birth-place, but their 
 nature is the same. 
 
 Now, the gentleman talks about three hundred 
 millions of capital being locked up in corpora 
 tions, and says that in this you have been legis- 
 
62d day.] 
 
 GENERAL LAWS FOR CORPORATIONS. 
 
 171 
 
 Wednesday,] 
 
 GRAY. 
 
 [July 20th. 
 
 lating for the benefit of the few, to the disadvantage 
 of the many ; and yet, Sir, if these corporations 
 are such a great evil as gentlemen would fain 
 make the people believe, they would open the 
 door, and let every-body come in, and by this 
 process increase the evil to an indefinite extent. 
 I tell the gentleman from Worcester, that by 
 adopting this course, he will legislate for the few 
 after all, for these three hundred millions of 
 property are held not by a very few, absolutely 
 speaking ; but, considering that those engaged in 
 business corporations are confined to a few spots, 
 and considering that the great masses of the rural 
 and laboring population considering that these 
 great masses are not owners in joint stock com 
 panies, and cannot well be you still leave a very 
 large majority of the people without the limits of 
 corporations. 
 
 Now, Sir, I have no objection to a system of 
 joint stock companies, always bearing in mind 
 that I reserve a control over them ; I have no 
 objection in that sense to legislate for the few, 
 provided we benefit the few without injuring the 
 just rights of the many. If we benefit the few 
 directly, and the many more than they were 
 benefited before ; if we take away no man s priv 
 ilege by giving a privilege to a few because they 
 want such privilege, where is the harm ? Gen 
 tlemen say that this is a monopoly. I think it is 
 not. If gentlemen want to be incorporated, and 
 they come to the legislature for such purpose, the 
 legislature having investigated the matter, and 
 feeling assured that no party is to be injured by 
 such grant will, as a matter of course, as it is a 
 matter of duty, give them a special act of incor 
 poration. But if they do not want to be incor 
 porated, if the people generally think that these 
 corporations are a great and crushing evil, then 
 the will of the people will reach the legislature, 
 and the legislature will take pains not to let every 
 body be incorporated, but will endeavor to di 
 minish such corporations as we have. 
 
 Sir, the distinction which the gentleman makes, 
 reminds me of a law formerly existing in some of 
 the petit German States, and which, for anything 
 I know, may exist now. In England, and most 
 other countries in which they have orders of no 
 bility, the king or sovereign ennobles whom he 
 pleases ; but in these German States, baronies 
 could be bought ; every man might have a barony 
 who could pay ten thousand dollars for it. And 
 was it any less an order of nobility because a man 
 bought it himself instead of its being conferred by 
 the crown ? No gentleman will say that it was. 
 An order of nobility, I suppose gentlemen here 
 would consider as an evil. I suppose that we 
 would all think so. And what course do we take 
 
 in this respect ? Why, Sir, we prevent their 
 existence altogether. But my friend, who con 
 siders corporations an evil, and would prevent 
 men from going into them indiscriminately and 
 without means, yet does not prevent the man 
 with ten thousand dollars from going into them. 
 After all, it seems to me that this is only legislat 
 ing for the few ; for the " many," as the gentle 
 man calls them, stand in the same degree by the 
 one proposition as by the other. 
 
 I thought the argument of the gentleman s 
 colleague very conclusive, but it seemed to me 
 that it did not go far enough. I shall be obliged 
 to go against the amendment, and also against the 
 Report, for reasons which I have stated before, 
 and which I will not now repeat. But I will say 
 a word or two in addition to what I have said, 
 and my object is rather to direct the minds of 
 gentlemen to what I consider the true state of the 
 question rather to lead them to take a discrimi 
 nating view of the issues before them, and I 
 think only a little reflection is necessary for that 
 than to urge any other argument. 
 
 Now, we speak of creating corporations by 
 special acts ; and we say that we voted to create 
 them by general laws. The truth is, if we 
 would be precise, that I think our system is a 
 mixed system. Take an illustration. Say that 
 a manufacturing company comes up, or that you 
 and I establish a milling company at Lawrence. 
 We come in and petition for an incorporation, 
 with a certain amount of capital. The legislature 
 grants us an act of some twenty lines ; and what 
 is the provision that it puts in ? It grants a 
 charter with all the powers, and subject to all the 
 liabilities of the 38th chapter of the Revised 
 Statutes. The legislature grants this incorpora 
 tion partly by general act, and partly by special 
 act, covering the few points which, from the na 
 ture of the case, cannot be covered by a general 
 act. They retain the provision of allowing per 
 sons to incorporate themselves under a general 
 law, unless they see some objection to it. Now, 
 let me ask, is not that distinction a wise one ? Are 
 gentlemen prepared to say that every-body ought 
 to go in under all circumstances, and that to all 
 future time ? I think not. Is this to be done 
 in regard to railroad corporations, canal corpora 
 tions, and the like ? No, Sir ; because you would 
 put into their hands the power of eminent do 
 main. By a construction of the Constitution not 
 warranted in its express terms, as an original 
 question, I think not a clear one, nevertheless 
 highly necessary it may be, we give them a 
 power of eminent domain ; we hand over to them 
 our sceptre, and they march through any man s 
 land they please ; and they give him such remedy 
 
172 
 
 GENERAL LAWS FOR CORPORATIONS. 
 
 [62d day. 
 
 Wednesday,] 
 
 GRAY. 
 
 [July 20th. 
 
 the best remedy, perhaps, that can be had ; but 
 how near it is to perfect remedy, gentlemen can 
 pretty well judge they give him such remedy as 
 he can find, by going to law for his recompense ; for 
 it does happen, that these corporations are some 
 times difficult to deal with. But we give them cer 
 tain powers which they generally take care to ex 
 ercise. For instance, here is a private corporation in 
 some business or other with which the public inter 
 est is connected, say a railroad company ; or, if you 
 choose, take another class of corporations those 
 engaged in the banking business, as that has been 
 so specially referred to. Well, Sir, these corpo 
 rations are connected with the public interest. 
 They are not mere corporations for the transac 
 tion of business benefiting or injuring the public it 
 may be by their relations with those who are their 
 customers, or who transact business with them ; 
 but they have the power of regulating the whole 
 currency of the State, and that I call a high 
 public power. They can affect the prosperity of 
 those who can least afford to lose any anything, 
 and therefore, I think that these are corporations 
 over which the legislature ought to exercise some 
 control. They ought to adopt something more 
 than a general act. But the general act they have 
 now. They have the 36th chapter of the Revised 
 Statutes, which, after all, regulates the banks ; a 
 provision enforcing the soundness of their cur 
 rency ; a provision which enforces their keeping 
 themselves in good condition, as far as banking 
 men under the supervision of the statute can 
 affect it. These, and other provisions of import 
 ance, are all contained in the general act. Well, 
 but my friend thinks that there ought to be other 
 provisions provisions as to the investment of 
 their capital provisions like that existing in the 
 New York system ; establishing a different basis 
 of currency, a better system than ours. Now, 
 how can that objection be met ? Why, Sir, 
 it can be met in a much less hazardous way 
 than he proposes to meet it. Let him go into the 
 legislature and take up the 36th chapter of the 
 Revised Statutes and persuade the legislature to 
 alter it, or else learn a lesson which we all have to 
 learn even here that is, to be voted down when 
 we think and feel that we are right. That is the 
 course, Sir. 
 
 Now, Sir, I will state what I think has had great 
 effect upon the minds of gentlemen, and that is the 
 mere fact of the saving of the time of the legislature. 
 Gentlemen meet here, and they sit here it may 
 be for a hundred and twenty days they come 
 here every morning with a most determined pur 
 pose to end the session at the earliest hour ; but 
 they find, somehow or other, that the session spins 
 on, and issue after issue arises, and time after 
 
 time is fixed upon for adjourning, and one branch 
 fixes a time and the other branch postpones it, as 
 it may be ; and, after all, the legislature, like all 
 things human, does at sometime come to an end, 
 at a time which nobody anticipated when they 
 commenced their labors that is, at a later day. 
 Well, Sir, it is customary to ascribe all this to the 
 immense mass of "private business," as it is 
 called ; but, Sir, I think they ascribe too much to 
 that cause. If it were of any purpose to say 
 much about it, I should say that the size of the 
 House had something to do with it, but that might 
 be a disputed point. But there is no dispute that 
 the gentlemen of the House of Representatives do 
 sit here for the first three weeks, appearing to those 
 who are without as if they were helping each 
 other to do nothing, while they are quietly prepar 
 ing their business. But are we sure that this 
 can be dispensed with ? Take, for instance, a 
 railroad corporation. We wish, when such a cor 
 poration is going to march through the land of 
 individuals, to know something about the line 
 they are going to take ; we wish to know some 
 thing, not only about the practicability of the 
 enterprise, but something, also, in regard to the 
 route that is to be taken. Is not this necessary 
 and proper ? Are we prepared to say as my 
 colleague has already spoken upon that point 
 that any company of men may come in and or 
 ganize, under a general act, and run a railroad 
 where they please ? Sir, how can we say so ? 
 There might be a difference in the cases. Ten 
 years ago, if we had authorized a railroad to run 
 through the city of Lawrence, or had we author 
 ized gentlemen to build a railroad where they 
 pleased, they might have run a road through that 
 ground, and would have done no more harm than 
 driving a railroad through the centre of Africa. 
 But what should we say of driving a railroad 
 through the centre of Lawrence now ? So with 
 banking corporations. Suppose that application 
 should be made for a bank at Lawrence, with a 
 capital of two millions. The legislature would 
 hesitate. They might grant it to a company in 
 State Street. They are both respectable places, 
 but are far from being equal in the control of 
 business. 
 
 The gentleman talks about the control in State 
 Street. Sir, he must alter something else than 
 general laws, before he can affect anything here. 
 There are such things as general laws of trade, 
 which are usually above the statute laws of any 
 particular place, and are world- wide in their ap 
 plication and effect. What is done on the Lon 
 don exchange, we feel here ; and twenty declara 
 tions of independence would not exempt us from 
 it. But suppose the gentleman takes a general 
 
62d day.] 
 
 GENERAL LAWS FOR CORPORATIONS. 
 
 173 
 
 Wednesday,] 
 
 GKAT FRENCH. 
 
 [July 20th. 
 
 act what is to prevent the owner of twenty 
 millions from marching into State Street and do 
 ing all that the Suffolk, or any other bank, does 
 now ? Sir, I am at a loss to see it. 
 
 Now, Sir, I did not intend to trouble the 
 House again upon this subject, and I should not 
 have troubled them as it is, if I thought their 
 minds were made up upon the subject. I did 
 think that the question would not stand the worse 
 for a little farther consideration. But, be a corpo 
 ration a benefit, or be it an evil, they will be incor 
 porated, and it is assumed that they will be incor 
 porated under this general act ; that if there are 
 any provisions that ought to be incorporated in a 
 general act, they can be inserted in the thirty- 
 sixth chapter of the Revised Statutes now, and 
 every corporation can, by its charter, be referred 
 to that statute, and to the forty-fourth chapter, 
 which puts them all under the control of the 
 legislature. I say, Sir, that I humbly conceive 
 that all the evils which result from corporations, 
 will result from them whether they create them 
 selves, or whether they are created under a 
 general act. I say that the number of holders of 
 stock in joint stock companies are pretty numer 
 ous, but they are not a majority, or anything like 
 a majority, or even anything like a respectable 
 minority, of the whole population of the State. 
 But whether we legislate for the few or for the 
 many, the question now seems to be, whether we 
 shall legislate for them by general act, or by spe 
 cial act. 
 
 But I go back, for a moment, to the objection 
 which I advanced upon a former occasion. I am 
 ready to leave this matter with, and I think it is 
 best to trust this matter to, the legislature ; but I 
 would also say and if I ever expected to be a 
 member of the legislature, I would say the same 
 thing there I think it desirable to work by general 
 laws as far as we can conveniently do so. I can 
 see how we can have general laws for insurance 
 and manufacturing companies, because they are 
 companies for the transaction of private business. 
 They do not seem to come in contact with the 
 public generally, but only with their own cus 
 tomers. But as to railroad companies, they exer 
 cise the right of eminent domain, and come in 
 contact with many people who have nothing to 
 do with them of their own will, and never want 
 to have. I say, with regard to banking corpora 
 tions, that a state of things may arise in which 
 the legislature may properly hesitate as to grant 
 ing a charter, out of regard to what they think 
 will be the effect upon the currency of the State, 
 and in which effects every man, woman, and child 
 in the Commonwealth are interested, and by 
 which the poor are affected more than the rich, 
 
 because they have their all to lose by it, and less 
 discretion and power to protect themselves from 
 loss. 
 
 One word only, will I say farther, in regard to 
 real estate corporations. Shall we part with the 
 power of discrimination of, and control over, 
 them ? Real estate corporations are sometimes a 
 matter of necessity ; for instance, those in relation 
 to wharves and flats. Ever since the formation 
 of the Constitution, I suppose, such corporations 
 have been formed by law, because it is difficult to 
 manage such matters in any other way. A limit 
 ed partnership is so impracticable and incon 
 venient in regard to them, as to prevent the adop 
 tion of such partnerships. But the legislature 
 might well hesitate to create many such real 
 estate corporations as have been created hereto 
 fore, and may hereafter be incorporated. I do 
 think that whole matter had better be left in the 
 hands of the legislature. They can, if they see 
 fit, adopt every one of the ideas of my friend 
 from Worcester, (Mr. Davis,) and what is a mat 
 ter of some consequence, if experience, which 
 may throw some new light upon their minds, 
 should lead them to vary and modify their course 
 hereafter, the door will be open, to enable them 
 to do so. 
 
 Mr. FRENCH, of Berkley. I am in favor, 
 Mr. President, of these resolves, and particularly 
 the third one. I never was very friendly to cor 
 porations. I was Merer fond of monopolized 
 privileges, for I always supposed that corporations 
 got more than belonged to them. 
 
 In reference to banks, let us look at the matter, 
 and see whether or not, we ought to have a 
 general law by which all the people who wish to 
 be incorporated into such institutions, who wish 
 to lay aside a part of their property, and be in 
 corporated on the rest, may not have the privilege. 
 Banks have undertaken to furnish the country 
 with a circulating medium, and how stands the 
 matter now, under that attempt ? Go out and 
 make inquiries in this city, and the people will 
 tell you that they are greatly embarrassed every 
 day for the want of change to do their ordinary 
 and daily business. Undertaking to furnish the 
 country with a circulating medium, they do not 
 doit. 
 
 Are banks incorporated monopolies ? Is there 
 any other class of people that have the privileges 
 which pertain to banking corporations ? I wish 
 some one would show me any other class of the 
 community, who are drawing interest on their 
 own indebtedness on their own promises to pay. 
 Other people are obliged to pay interest upon 
 their promises to pay, but banks are exempted 
 from that rule. 
 
174 
 
 GENERAL LAWS FOR CORPORATIONS. 
 
 [62d day. 
 
 Wednesday,] 
 
 FRENCH WATERS. 
 
 [July 20th. 
 
 There is another consideration connected with 
 this matter. There never was a State bank cre 
 ated, which was not created directly in violation 
 of the Constitution or Federal Compact. Nothing 
 in that instrument was more perfectly guarded 
 than the regulation of the currency. Its framers 
 saw at a single glance, that the regulation and 
 control of the currency, was the highest preroga 
 tive of sovereignty, and they saw that they could 
 not put its control into the possession of any body 
 of men, or corporation of men, and they gave it 
 to the whole people of the United States ; to my 
 father and to yours, Mr. President, to you and to 
 me as their descendants. They said to the people, 
 you shall have the control of the currency. The 
 people could exercise that power only through 
 their representatives in congress. The Constitu 
 tion declared that congress should have the power 
 to coin money, and to regulate the value thereof, 
 and of foreign coin. But how is that matter 
 regulated now ? Who coins money now ? That 
 power was given to the whole people, but where 
 is it now ? In the hands and possession of the 
 banking corporations. Are they acting for the 
 public good, or for their own private benefit ? 
 This power, Sir, has been stolen from the people, 
 and they do not know it. What power is there 
 in congress to regulate State banking ? 
 
 Well, it was said by the gentleman who a few 
 moments since stood where I now do, (Mr. Gray,) 
 that they control not only the currency of the 
 country, but regulate and control the value of the 
 whole property of the country. Is that an exclu 
 sive privilege, or is it not ? Is it an exclusive 
 privilege to diminish the value of any man s 
 property, when they choose, in order to make the 
 most of it, and to increase the value of that 
 property when it is for their interest to do so ? 
 Now, when the people come forward and ask for 
 a general law, and ask not to be shut out from 
 the privileges which other people have, the favor 
 ites of the banking system come up and make a 
 great complaint, and say that it would be very 
 improper to do so. They say the people ought 
 not to have this privilege, and that it does riot 
 belong to them. 
 
 Banks promise to pay, and they give their notes 
 promising to pay on demand. How is their cap 
 ital stock made up ? Is it made up of specie ; or 
 is it made up of stock notes ? Very poor property 
 that, with which to pay specie upon demand. 
 Thus it is improper, very improper indeed, that 
 the people collectively should have a general act 
 giving them equal privileges with others, so long 
 a it is important that those who now have the 
 power, should retain it. 
 
 I hope, Sir, this resolve will pass, so that the 
 
 people shall have some chance. Now, what does 
 this power of incorporation do ? It gives to a 
 certain class of the community the right to trade 
 to any amount, whilst at the same they are held 
 responsible to pay only a specified amount. Has 
 any other class of people that privilege? No. 
 An individual is h olden to pay his debts, to the 
 last farthing, and that is right. I hope, Sir, in 
 order to remedy this great complaint which is 
 now made throughout the country, that the next 
 legislature which convenes, will pass a law that 
 no bill under the denomination of five dollars, 
 shall be passed in the State of Massachusetts ; 
 and if they do that, believe me, there will be no 
 complaint of a want of change to do business 
 with. I submit the question to the Convention, 
 whether or not Mr. Webster was right, when he 
 said that the most effectual way of fertilizing 
 the rich man s field by the sweat of the poor 
 man s brow, is this State banking system. 
 
 Mr. WATERS, of Millbury. In the discus 
 sion of this subject, frequent allusions have been 
 made to the industrial interests of Massachusetts, 
 without defining what they are ; and, by way of 
 episode, we have been entertained, occasionally, 
 by a chapter upon free trade. I propose to pre 
 sent, from official documents, some statistics, to 
 show what those interests are, and also to prove 
 what has been the effect produced upon them, by 
 the repeal of the protective tariff in 18 46 that 
 being regarded as an approximation to free 
 trade. 
 
 To these facts, I bespeak the candid attention 
 of the members, as business men, without regard 
 to party affiliations or favorite theories in political 
 economy, for they involve questions vital to the 
 growth and prosperity of our ancient Common 
 wealth. What are the industrial interests of Mas 
 sachusetts ? 
 
 From a volume of statistics, published by the 
 Secretary of State for the year ending April 1, 
 1845, the annual products of the principal branch 
 es of industry, were as follows : 
 
 I. COTTON MANUFACTURES. 
 
 Cotton Cloth, .... $12,193,449 
 
 Calico 4,779,817 
 
 Bleaching and Coloring, . . . 2,166,000 
 
 $19,139,266 
 
 II. BOOTS AND SHOES. 
 
 Boots and Shoes, . . . $14,799,140 
 Leather, 3,836,657 
 
 $18,635,797 
 
62d day.] 
 
 GENERAL LAWS FOR CORPORATIONS. 
 
 175 
 
 Wednesday, 
 
 WATERS. 
 
 [July 20th. 
 
 III. FISHERIES. 
 
 Whale, $10,371,167 
 
 Mackerel and Cod, . . . 1,484,137 
 Candles, Sperm and Oils, . . . 3,613,790 
 
 $15,469,100 
 
 IV. AGRICULTURAL. 
 
 Hay, $5,214,357 
 
 Grain 2,228,229 
 
 Potatoes, 1,309,030 
 
 Butter, 1,116,709 
 
 Wood, Bark and Charcoal, . 
 Fruit, .... 
 Vegetables, .... 
 
 Cheese 
 
 Wool 
 
 Milk, 
 
 1,088,656 
 744,540 
 515,082 
 398,174 
 365,136 
 304,917 
 Beef, Brooms, Honey, Hops, Poultry, &c., 917,787 
 
 V. WOOLLEN MANUFACTURES. 
 
 Woollen Goods, . 
 Carpeting, 
 Worsted Goods, . 
 Hosiery and Yarn, 
 
 t,202,6!7 
 
 5,877,478 
 
 834,322 
 
 654,566 
 
 94,892 
 
 ),461,258 
 
 chiefly upon the success of those interests. When 
 they are prosperous, the whole are prosperous, 
 embracing all other interests ; and vice versa. 
 This is a proposition which the experience of the 
 last quarter of a century has abundantly estab 
 lished. 
 
 Of these interests, the leading in amount of 
 products is the cotton, which amount is greatly 
 understated in the above table, from the fact that 
 some large establishments refused to make any 
 return. In amount of capital invested, this in 
 terest also far exceeds either of the others. To 
 manufacture cotton cloth requires a large invest 
 ment in buildings, motive power, fixtures, ma 
 chinery, &c., but in many kinds of business the 
 boot and shoe, for example no such outlay is 
 necessary. Indeed in most kinds of business the 
 annual products largely exceed the capital invested, 
 while in the cotton they fall below. 
 
 What has proved to be the effect upon this in 
 terest of the repeal of the tariff of 1842, in 1846 ? 
 
 I am prepared to prove, from official documents, 
 that by that change in our national policy, Mas 
 sachusetts has been set back one hundred millions 
 of dollars in her valuation, and in amount of 
 products seventy- five millions annually, amount 
 ing, in the six ensuing years, to four hundred and 
 fifty millions. This statement will doubtless strike 
 
 VI. IRON. 
 
 some mmds as astounding and. incredible, but 1 
 
 Rolled and Slit, and Nails, . . $2,738,300 
 
 believe I am fully fortified by facts to sustain it. 
 
 Castings, 1,280,141 
 
 The following table, taken from the Patent 
 
 Machinery, 2,022,648 
 
 Office Report, 1851, (Agricultural,) exhibits the 
 
 Cars and Carriages, . . . 1,343,576 
 
 statistics of the cotton manufacture in different 
 
 Anchors, Cables, &c., . . . 538,966 
 
 States : 
 
 Shovels, 275 212 
 
 
 QrtlT-f- U^i;. -I -I OOX 
 
 
 Cutlery, Axes, and Edge-tools, . 242,616 
 
 
 > 
 
 j_ C3 
 
 <, 
 
 .5 
 
 o t> 
 
 Engines and Steam Boilers, Ploughs, 
 
 STATES. 
 
 |3i 
 
 -2 *j 
 
 ill 
 
 Tacks, Tools, &c., . . 1,433,807 
 
 
 |ol 
 
 I* 
 
 gss. 
 
 $9,989,201 
 
 1. Massachusetts, . . 
 
 213 
 
 $28,455,630 
 
 819,712,461 
 
 
 2. New Hampshire, . . 
 
 44 
 
 10,950,500 
 
 8,830,619 
 
 vn. PAPER, .... 1,850,273 
 
 3. Khode Island, . . . 
 
 158 
 
 6,675,000 
 
 6,447,120 
 
 VIII. STRAW BONNETS AND PALM LEAF 
 
 
 
 
 
 HATS 1,649,496 
 
 4. Pennsylvania, . . . 
 
 208 
 
 4,528.925 
 
 5,322,262 
 
 IX. VESSELS, .... 1,172,147 
 
 5. Connecticut, . . . 
 
 128 
 
 4,219,100 
 
 4,257,522 
 
 X. GRANITE, .... 1,065,599 
 
 6. New York, .... 
 
 86 
 
 4,176,920 
 
 3,591,989 
 
 
 
 12 
 
 3,329,700 
 
 2,596,356 
 
 Addirg to the above, various miscellaneous 
 
 8. Mary and, .... 
 
 24 
 
 2,236,000 
 
 2,120,504 
 
 items, the aggregate of the products of the State 
 
 
 27 
 
 1,908,900 
 
 1,486,384 
 
 for that year, is $115,000,000. 
 From these data, it is obvious, that the most 
 
 
 35 
 
 1,736,156 
 
 2,135,044 
 
 
 prominent interests of Massachusetts are manu 
 
 11. New Jersey, . . . 
 
 21 
 
 1,483,500 
 
 1,109,524 
 
 facturing and mechanical, whose aggregate annual 
 
 12. North Carolina, . . 
 
 28 
 
 1,058,800 
 
 831,342 
 
 products are at least eighty millions out of one 
 
 13. South Carolina, . . 
 
 18 
 
 857,200 
 
 748,337 
 
 li vmclrccl. cind fifteen millions tliG entire "products 
 
 
 
 2,884,700 
 
 
 of the State. Hence, it follows as a necessary 
 
 Total, .... 
 
 1,094 
 
 $74,501,031 
 
 $61,869,184 
 
 corollary, that the prosperity of the State depends 
 
 
 
 
176 
 
 GENERAL LAWS FOR CORPORATIONS. 
 
 [62d day. 
 
 Wednesday,] 
 
 WATERS. 
 
 [July 20th. 
 
 Of the capital invested in New Hampshire and 
 Maine, it is estimated that two-thirds, at least, 
 belong to people of Massachusetts, which, added 
 to the amount invested in this State, makes an 
 aggregate of $37,500,000 capital owned by Mas 
 sachusetts in the cotton manufacture a sum 
 equal to fully one-half of the whole capital in 
 vested in this business in the United States. 
 
 The following table, taken from the same Re 
 port, exhibiting the number of bales of cotton 
 manufactured in this country, from 1841 to 1850, 
 will show how the cotton business was affected 
 by the tariff of 1842, and also by its repeal in 
 1846: 
 
 1841267,850 
 
 1842325,714 
 
 1843346,744 
 
 1844389,000 
 
 1845422,597 
 
 1846427,627 
 
 1847531,772 
 
 1848518,039 
 
 1849487,769 
 
 1850404,108 
 
 From this table it appears, that in six years, 
 from 1841 to 1847, under the influence of the tariff 
 of 1842, the cotton manufacture increased in this 
 country 264,000 bales an expansion equal to 
 100 per cent., while, in three years, from 1847 to 
 1850, after that tariff was repealed, it actually 
 receded 127,664 bales, a contraction equal to 22 
 per cent. These remarkable results are to be 
 traced directly to the repeal of the tariff of 1842, 
 and no other cause can be assigned. 
 
 Let us now glance, for a moment, at the con 
 dition and prospects of the cotton-growing inter 
 est of the South. The following table, taken 
 from Patent Office Reports, exhibits the annual 
 number of bales produced, average price and val 
 ue of the same for seven years, from 1846 to 1852 
 inclusive : 
 
 1846 
 1847 
 1848 
 1849 
 1850 
 1851 
 1852 
 
 1,778,651 
 2,347,634 
 2,728,596 
 2,096,706 
 2,355,257 
 3,015,000 
 3,400,000 
 
 7.81 
 
 10.34 
 
 7.61 
 
 6.4 
 
 11.3 
 
 12.11 
 
 $42,767,341 
 
 53,415,848 
 
 61,998,294 
 
 66,396,967 
 
 71,984,616 
 
 112,315,317 
 
 136,000,000 
 
 From the above, it appears, that since 1846, the 
 cotton crop has increased, in bales, 1,600,000, 
 equal to one hundred per cent, nearly, and in 
 value, $93,000,000, exceeding two hundred per 
 cent. This accounts for the high degree of pros 
 perity prevailing at the South, and the great ad 
 vance in the price of slave property. In the face 
 
 of this rapid and enormous increase of crop, the 
 price has been fully sustained, which proves that 
 the consumption has advanced pari passu, with 
 the production. Of course there has been an 
 increase in the cotton manufacture in the same 
 proportion. The positive increase of the crop, is 
 equal to four times the number of bales manu 
 factured in this country, and consequently the 
 increase in the number of spindles, must be 
 equal to four times the whole number running in 
 this country. Where has this extraordinary in 
 crease of manufacture been developed ? Not 
 certainly, in Massachusetts, nor in the United 
 States, as has already been shown. While the . 
 cotton growing interest of the South, has increased 
 since 1846, nearly two hundred per cent., the 
 manufacturing interest of the North has remained 
 stationary. But this increase of manufacture, 
 corresponding to the increase of crop, has been 
 developed mostly in England. The newspapers 
 contained an account a short time ago, of one mill 
 erected by Mr. Titus, of Manchester, England, 
 covering six acres ; and many other similar ac 
 counts of increase there, have been published. 
 
 Had this expansion been made in this country, 
 it would have added two hundred millions of 
 dollars to our manufacturing capital, and one 
 hundred and fifty millions to our products annu 
 ally. This loss of business is fairly chargeable to - 
 the advocates of free trade. What the country 
 has gained by way of compensation, I have yet 
 to learn. As one-half of the cotton manufacture 
 in the United States, belongs to Massachusetts, it 
 follows that one-half of this loss falls to her 
 that is to say, she has lost in her valuation, by 
 the repeal of the tariff in 1846, one hundred mil- 
 lions, and in annual products, seventy-five millions, 
 amounting in six years, to four hundred and fifty 
 millions of dollars. This is not a matter of con 
 jecture, nor of prophecy, nor of theoretic specu 
 lation, but it is a matter of absolute demonstration 
 a result, which a few short years has clearly 
 proved. No other cause but the repeal of the * 
 tariff in 1846, can be assigned, and no theory of 
 the free traders, can account for it. Here is 
 experience against theory practice against proph 
 ecy. If to any member these facts seem to be 
 exaggerated, I would say, that no estimate was 
 made for collateral interests, such as building, 
 machinery, foundries, rise of real estate, trade of 
 all kinds, &c. &c., which, when made, will be 
 found to far outweigh all deductions that can be 
 justly claimed on the score of exaggeration. If 
 then, such disastrous results have accrued to the 
 leading interests of Massachusetts, from an ap 
 proximation to free trade, what are we to expect 
 from its full realization, which some gentlemen 
 
62d day.] 
 
 GENERAL LAWS FOR CORPORATIONS. 
 
 177 
 
 Wednesday,] 
 
 WATERS HALLETT. 
 
 [July 20th. 
 
 on this floor, have, with so much confidence 
 predicted, at no distant day ? The member for 
 Berlin, (Mr. Boutwell,) in some remarks which 
 he made in favor of this doctrine, was so sanguine 
 of its early adoption by the people, that he said 
 he would venture to predict, that in ten years, it 
 would be the prevailing sentiment of the North ; 
 that Boston itself, would adopt it, and that at 
 some remote period hereafter, a Custom House 
 would be as great a curiosity, as the Coliseum of 
 Rome, or the Temple of Carnac. 
 
 Mr. HALLETT, for Wilbraham. I rise to a 
 question of order. The gentleman from Millbury 
 is discussing the tariff, and the doctrine of free 
 trade. Now, I am anxious to make a speech 
 upon that subject of several hours in length. But 
 if it is to come in here, I wish to know whether 
 the subject is legitimately before the Convention ? 
 
 Mr. WATERS. Whether legitimately before 
 the Convention or not, I did not introduce the 
 subject. In the discussion of this and various 
 other questions, we have had several speeches in 
 favor of free trade, and no member was called to 
 order. Regarding this as a most fallacious and 
 destructive doctrine, it seemed to me that some 
 remarks, per contra,, would not be ill-timed nor 
 out of order. However, I do not wish to pursue 
 the matter against the wishes of the House. 
 
 Cries of " Go on," " Go on." 
 
 If the expansion of business to which I have 
 referred had been developed in this country, it 
 would have enhanced the value of every square 
 inch of territory in Massachusetts ; added thou 
 sands to her population, and opened new avenues 
 of wealth and employment. The programme of 
 those gigantic enterprises at Holyoke and Law 
 rence would have been filled up, and scarce a foot 
 of available water power in the State would have 
 remained unoccupied. Many a water-fall now 
 wasting its power upon the desert air, would have 
 been brought into requisition, and filled the sur 
 rounding region with the music of prosperous 
 industry. In short, the six years of leanness en 
 suing the year 1846, would have been years of 
 plenty and prosperity. It has been a common 
 impression in the country, even among manufac 
 turers themselves, that under the tariff of 18-12, 
 this interest was stimulated to an unnatural 
 growth, and was in danger of a reaction, from 
 being overdone. But the foregoing statistics 
 prove that this opinion was entirely erroneous ; 
 that rapid as was the expansion, it did not keep 
 pace with the growth of the crop, nor the con 
 sumption of the fabric, but fell far behind both. 
 Massachusetts has probably never known a period 
 of so rapid growth and development, as from 
 1842 to 1847. Before this period, say from 1836 to 
 
 12 
 
 1842, there was a general crash, or breaking down 
 of all kinds of business. General bankruptcy, 
 and universal prostration prevailed, as though a 
 tornado had swept over the land, until the pas 
 sage of the tariff in 1842, when there was a simul 
 taneous quickening into life of all our dead and 
 prostrate interests ; and they continued to grow 
 in an accelerating ratio, until that Act was re 
 pealed, when their growth was arrested, as by a 
 sudden frost. Some of them have since remained 
 stationary few have flourished during the six 
 famine years, being sustained chiefly by the 
 strength and impetus before acquired, to the 
 present year, which fortunately proves to be a 
 year of plenty and prosperity, such as Massachu 
 setts has not seen since 1845. What is the cause 
 of this great change, this universal and exuberenfc 
 prosperity ? Not, certainly, that there ha been 
 any change in the policy of our government. It 
 was formerly thought that loyalty on, the part of 
 the citizen, and protection of person, and property t 
 on the part of government, were set-iprocal duties ; 
 but that is now called an exploded idea. 
 
 This change, it is well known, has been brought 
 about, chiefly, if not solely, by the rise of labor 
 in Europe. The drain of laborers from the 
 workshops of Europe, to the gold mines of Aus 
 tralia and other regions, has been so heavy as to 
 cause a general rise in the prices of labor and 
 manufactured products, carrying them up to a 
 grade where our manufacturers and laborers can 
 thrive and prosper. No reason can be assigned, 
 why we cannot, at all times, manufacture as 
 cheap as in Europe, except the price of labor. 
 If capital is cheaper there, so also are taxes very 
 much higher. To obviate this difficulty the 
 higher price paid here for labor, and also to pre 
 pare the way for the glorious advent of free 
 trade, the member for Berlin (Mr. Boutwell) 
 proposes, and in his prophetic vision confidently 
 predicts, the importation of large numbers of 
 coolies from China. In this direction his pro 
 phetic vision even discerns an antidote for the 
 removal of slavery itself ! 
 
 Suppose this to happen ; what is to become of 
 all the Yankee boys and girls who now operate 
 the machinery of our mills, and who are thus 
 under- bid in the price of labor ? Are they to be 
 driven out from their native land, to make room 
 for a horde of demi-barbarians from the Celestial 
 Empire : Is that a wise and paternal statesman 
 ship, looking to the best good of our country and 
 our race ? Besides, is the gentleman quite sure 
 that these impassive Celestials, in wooden shoes, 
 and with pumpkin- vine queues, are fitted to per 
 form the labor of our versatile Yankees, with the 
 same tact and rapidity ? With all due deference 
 
178 
 
 GENERAL LAWS FOR CORPORATIONS. 
 
 [62d day. 
 
 Wednesday,] 
 
 WATERS. 
 
 [July 20th. 
 
 to that gentleman, I must say, that this vision of 
 his seems to me more like a creature of fancy, 
 than the gift of prophecy. 
 
 This whole, and much vexed question of pro 
 tection, resolves itself into a question of labor. 
 Capital, in this country, needs no protection. 
 The rate of interest is always about three times 
 as much as it is in England, while the price of 
 labor there, averages about one-third as much as 
 is paid here. Labor can never be so cheap under 
 a democracy as under a despotism. The former 
 is founded upon numbers, and makes no distinc 
 tions of persons, between the laborer and the lord, 
 the mechanic and the millionaire. To enable the 
 laborer therefore, to maintain the dignity of his 
 station, it is necessary that he should be able to 
 read books, take newspapers, educate his children, 
 and have many of the comforts of life which are 
 unknown to the boors of England, the serfs of 
 Russia, or the coolies of China. He must main 
 tain a higher and more expensive style of living, 
 and ought not, therefore, to be exposed to a com 
 petition with the bone soup, and pauper labor of 
 Europe. " But," say the advocates of free trade, 
 it is on the very ground of sympathy for the 
 poor laboring man, that we advocate this doctrine. 
 A tariff is indirect taxation, and operates un 
 equally. In the article of sugar, for example, 
 the poor man consumes six times, it may be, as 
 much as the millionaire, and consequently pays 
 six times as much tax. This system surrounds 
 him unseen, like the atmosphere, and he does 
 not know how he is abused" Very likely. 
 Probably he never will. For argument s sake 
 admit all this to be true. If by paying one cent 
 a day extra, on sugar, and as much more on a 
 few other articles, he gets, instead of fifty cents, 
 from a dollar and a half, to two dollars per day 
 more for his labor, is he not the gainer ? Where 
 in the wide, wide world, is the laborer so well 
 paid, as in this country ? And here, especially 
 in New England, labor is never in so great de 
 mand, nor so high, as at periods when the manu 
 facturing interest is prosperous. Witness the 
 present year, the years 1844, 1845, and 1846. 
 For the reverse, witness the years from 1836 to 
 1842 from 1846 to 1850. 
 
 Who are the great sticklers for free trade in 
 - this country ? Importers of foreign merchandise, 
 resident agents of foreign manufacturers, bankers, 
 and brokers, who have expended vast sums of 
 money to buy up and subsidize some of our most 
 influential presses. Much the largest proportion 
 of the press, in this country, is concentrated in 
 cities ; and of that, a large share is enlisted in 
 the foreign importing business. Hence, the gen 
 eral delusion which prevails upon this subject. 
 
 Another class of very obstreporous free traders, 
 are the Southern planters, whose laborers are 
 slaves. " Labor," say they, " should come from 
 that quarter where it can be obtained cheapest." 
 If this is a correct doctrine, we should expect 
 that, like charity, it would begin at home. Let 
 us see how their practice conforms to their teach 
 ings. The great interest of the South, is the slave 
 interest. The raising of slaves is to Virginia, and 
 the older slave States, what the raising of cattle 
 is to Vermont their most profitable production. 
 Now, it is well known, that slaves can be import 
 ed from Africa, for two hundred dollars, which 
 sell at the South readily, for eight and ten hun 
 dred a difference of from three to five hundred 
 per cent. But, be it remembered, whoever at 
 tempts to import this kind of labor is hung up at 
 the yard arm, as a pirate ! There is protection 
 for you, with a vengeance ! It is perfectly right 
 and proper to bring the free labor of the North 
 into competition with the pauper labor of Eu 
 rope, but to bring the slave labor of the South, 
 into competition with the slave labor of Africa, 
 is PIRACY ! True, the laws prohibiting the im 
 portation of this kind of labor, profess to be 
 founded upon motives of philanthropy ; but, on 
 that score, what is the difference between the 
 foreign and domestic slave-trade whether the 
 planter of New Orleans imports his slaves from 
 Richmond, Va., from South America, or from 
 Africa ? If ever his highness, the arch prince of 
 darkness may be supposed to grin horribly a 
 ghastly smile, nay, to laugh outright, it must be 
 when he hears Southern statesmen advocate the 
 enforcement of these laws on the ground of hu 
 manity ! They go in for free trade for the free 
 labor of the North, and for entire prohibition, 
 under a penalty of death, for the slave labor of 
 the South. Abolish these laws, obtain your 
 slave labor where it could be obtained cheapest, 
 and you might reduce the cost of raising cotton 
 fifty per cent., but you would also sink the whole 
 valuation of the South, hundreds of millions. 
 Let congress assume this ground, and we should 
 soon witness as great a revolution at the South in 
 regard to protection, as we have, recently, in regard 
 to the doctrine of internal improvements. This 
 doctrine they have denounced, until it has been 
 fairly read out of the creed of all parties ; and 
 now, after the North has made all her own im 
 provements, and built her railroads, the South 
 find they want a railroad to the Pacific. Presto, 
 these strict constructionists discover that there is 
 nothing more constitutional, national, and patri 
 otic than for the United States to build it for 
 them, and if necessary, to take another slice from 
 Mexico, to eke out the route. 
 
62d day.] 
 
 THE JUDICIARY, &c. 
 
 179 
 
 Wednesday,] 
 
 WATERS STETSON WHITNEY MORTON KNOWLTON. 
 
 [July 20th. 
 
 One word more upon the doctrine of free trade, 
 and I have done. This doctrine, in theory and 
 on paper, appears very plausible ; and in the 
 great, good time a coming, when the commerce of 
 the world will be unrestricted, it may, perhaps, 
 be practicable ; but at present, it is perfectly sui 
 cidal to our best interests, especially to labor. 
 Reason teaches it ; experience has proved it ; 
 speculative and superficial politicians are very 
 apt to be carried away by it, and deluded, like 
 the theorist in civil engineering, who said that 
 railroads over our prairies ought to be perfectly 
 level. When he came to reduce his theory to 
 practice, he found that the Creator had made the 
 earth round, and to make his road perfectly level, 
 he must run it into the air or into the ground. 
 
 I have addressed these remarks to the mem 
 bers, as Massachusetts men, whose first duty it is 
 to look after our own home interests. The bear 
 ing which this question has on the interests of 
 sister States, of the United States, and especially 
 on the finances of the country, opens a broad and 
 inviting field, into which I have not time to 
 enter. 
 
 The fling which has been made here, xincler 
 the term "cottonocracy," at the largest industrial 
 interest of the State, an interest which probably 
 employs more persons, as well as capital, than 
 any other in the State, seemed to me not only to 
 be in bad taste, but to savor more of demagogueism 
 than of that sound statesmanship which embraces 
 in its ample and comprehensive scope, the whole 
 interests of the whole Commonwealth. 
 
 Mr. STETSON, of Braintree. I desire to 
 inquire if the previous question will cut off 
 amendments from being made ? 
 
 The PRESIDENT. The Chair will remark to 
 the gentleman that there is no amendment pend 
 ing, and if the previous question is ordered, it 
 will be simply upon the main question, which is 
 upon the final passage of the resolve. 
 
 Mr. STETSON. I have an amendment that 
 I desire to offer. If the gentleman from Millbury 
 will withdraw his motion for the previous ques 
 tion, and allow me the floor for five minutes, I 
 should be under obligations to him. 
 
 Mr. WHITNEY, of Conway. I do not rise to 
 oppose the previous question, for I think the gen 
 eral question has been sufficiently discussed. An 
 amendment, however, has been offered, which I 
 should be glad to have explained, and that is one 
 reason why the previous question should not be 
 put now. 
 
 The PRESIDENT. The amendment has been 
 withdrawn. 
 
 Mr. WHITNEY. I was not aware of that 
 fact. Then I am ready for the question. 
 
 Mr. MORTON, of Quincy. I have noticed, 
 for the last hour or more, that gentlemen who 
 have been addressing the Convention have re 
 ceived very little attention. Therefore, from the 
 general intelligence of the Convention, I presume 
 they have all made up their minds how to vote 
 upon this question, and I hope the previous ques 
 tion will not be withdrawn. 
 
 The previous question was seconded, and the 
 main question ordered, which was upon the final 
 passage of the resolution. 
 
 The question was then taken, and the resolu 
 tion was passed, there being ayes, 212; noes, 76. 
 
 On motion by Mr. KNO WLTON, of Worces 
 ter, the Convention then proceeded to the consid 
 eration of the resolves relating to 
 
 The Judiciary. 
 
 Mr. KNO WLTON moved to substitute for the 
 last resolve that it was inexpedient to make any 
 changes in the first, second, and fifth articles of 
 the third chapter of the Constitution the fol 
 lowing : 
 
 Resolved, That it is expedient so to amend the 
 Constitution, that all judicial officers, except those 
 concerning whom a different provision shall be 
 made in the Constitution, shall be nominated and 
 appointed by the Governor, by and with the con 
 sent of the Senate, for the term of seven years ; 
 that they may be reappointed at the expiration of 
 such term ; and that all such nominations shall 
 be made at least seven days before such appoint 
 ment. 
 
 Mr. PARKER, of Cambridge. I rise to a 
 question of order, that this proposition cannot be 
 entertained, the subject matter having already 
 been before the Convention and a vote taken 
 upon it. 
 
 The PRESIDENT, pro tern. The Chair is of 
 the opinion that the motion of the gentleman from 
 Worcester is in order. 
 
 Mr. KNOWLTON. I do not propose to 
 revive the discussion upon this subject. The 
 matter of the judiciary has been ably and thor 
 oughly discussed by the Convention, and I doubt 
 not that the whole subject is thoroughly under 
 stood by every delegate upon the floor. Two 
 propositions have been laid before the Convention 
 upon this subject. One of them was a proposi 
 tion containing the elective principle, providing 
 that all judicial officers should be elected by the 
 people. That proposition has been rejected. The 
 other proposition was for the appointment of 
 judges for a period of ten years. That proposition 
 has been rejected also ; so that the Convention 
 has thrown itself back upon the Constitution, in 
 
180 
 
 THE JUDICIARY. 
 
 [62d day. 
 
 Wednesday,] 
 
 KXOWLTOX ADAMS DANA. 
 
 [July 20th. 
 
 respect to this matter, as it now stands and has 
 always stood. It seems to me that the Conven 
 tion, by the votes taken, has reached a conclusion, 
 which, if I understand public opinion, ought not 
 to have been taken ; and I move this proposition 
 with a view of deciding whether the Convention 
 lias reached a conclusion by which it is willing to 
 abide. I should have been glad, for one, if we 
 could have carried the elective principle ; for I 
 think it is demanded by a great portion of the 
 people. Certainly it is in my own section of the 
 State, if I am any judge of the public opinion of 
 that portion of the Commonwealth which I have 
 the honor, in part, to represent upon this floor. 
 If I cannot carry that principle, I desire to ap 
 proach as near as possible to it. This proposition 
 varies from the other in one particular. It pro 
 vides for the appointment of judicial officers, but 
 it varies from the other in the limitation of the 
 tenure, and in the confirmation by the Senate. 
 The former was for a period of ten years ; this is 
 for the period of seven years. I offer it as a com 
 promise between the two sections of the Conven 
 tion those who are in favor of the election of 
 judges, and those who go for the appointment of 
 judges for a period of ten years. I think we are 
 in duty bound to present some proposition upon 
 this subject to our constituents, upon which they 
 can act, to say whether they desire that the Consti 
 tution shall remain asit is in regard to the judiciary, 
 or whether its basis shall be reorganized. As I 
 said in the beginning, I do not move this propo 
 sition with a view of reviving discussion upon 
 this subject, but simply to test the sense of the 
 Convention whether they are willing to go home 
 to their constituents and leave the Constitution as 
 it is in this respect, or present another proposition 
 for their consideration. 
 
 Mr. ADAMS, of Lowell. I move that when 
 the question is taken upon the proposition of the 
 gentleman from Worcester, (Mr. Knowlton,) it 
 be taken by yeas and nays. 
 
 The yeas and nays were ordered. 
 
 Mr. DANA, for Manchester. The reason 
 given by the President of the Convention yester 
 day, for his casting vote upon the subject of the 
 plurality system, struck me as a very judicious 
 one. He said, that it was not expedient to submit 
 to the people of Massachusetts a fundamental 
 change, which could be carried in this Convention 
 only by a casting vote. The Convention is aware 
 that last week a very full and able discussion 
 upon the subject of the elective judiciary was 
 voted down by a majority of over one hundred. 
 A proposition more likely to be carried than that 
 of the gentleman from Worcester, for a ten years 
 term, and not varying from it in principle, was 
 
 lost by a majority of two votes. Every gentleman 
 must be aware, that whether this proposition of 
 the gentleman from Worcester be lost or carried, 
 it must be by a small vote, with great difference 
 of opinion, without a previous public demand, 
 and without an issue raised before the people. I 
 ask if it is well for us to submit a proposition to 
 the people under such auspices ? Besides, if the 
 Convention will allow me, I will suggest, as a 
 member of the Committee upon the Revision of 
 the Constitution, and I think and every gentle 
 man in the Convention will agree with me in it 
 that it will be necessary to submit our Constitu 
 tion to the people as an entirety. We desired, if 
 possible, to submit it to the people in parts, in 
 single propositions ; but the farther we have gone 
 in our labors, the more we are satisfied that it 
 must be submitted to the people as a whole. We 
 have the Constitution of 1780, a great part of 
 which is already inapplicable to the present state 
 of our affairs. We have the amendments of 
 1820, and we have a whole series of amendments 
 since 1820. And now we shall have some twenty 
 or thirty amendments scattered all over the Con 
 stitution, striking at every part of it, which are 
 still to be submitted. The result will be, that 
 you will have the smaller Constitution of 1780, 
 with a series of amendments running through the 
 time of three generations, dangling on the end of 
 it, so that not only citizens unaccustomed to legal 
 investigations, but lawyers themselves, would not 
 be able to understand the Constitution without 
 the utmost study. You will have amendments 
 piled upon amendments. And then, too, when 
 we come to examine the resolves which you pass 
 here, we find that a single resolve of three lines 
 will require the rewriting of the Constitution in 
 several places. The sixth chapter, for instance, 
 must be rewritten in almost every section, and 
 four sections must be stricken out entirely. I 
 fear you will find it impossible to submit such a 
 Constitution to the people in any other way than 
 as a newly- arranged, symmetrical instrument, to 
 be adopted or rejected as a whole. If this propo 
 sition of the gentleman from Worcester, (Mr. 
 Knowlton,) is adopted here, you cannot give to 
 the people of Massachusetts an opportunity to vote 
 upon it, but it must go to the people with all the 
 other propositions, and I submit to that gentle 
 man as a matter of good faith, whether it is proper 
 to cover up in the Constitution, without an oppor 
 tunity to vote upon it separately, a fundamental 
 change, for which the people of Massachusetts 
 have never asked, as to which an issue has never 
 been raised, and upon which the Convention is 
 about equally divided ? Our time is important to 
 us. If we are to reconsider propositions passed 
 
62d day.] 
 
 THE JUDICIARY. 
 
 181 
 
 Wednesday,] DANA BUTLER LORD ALLEN EARLE HUBBARD HOOPER. [July 20th. 
 
 upon here, reexamine and reconsult, bring parties 
 again to a vote, and shift the balance one way or 
 the other by measuring casts, we shall never come 
 to a vote. I am willing to abide by the decision 
 of any question of which I am in favor, when it 
 has been lost. I am willing to abide by the de 
 cision on the plurality question, and not to trouble 
 the Convention with my proposed amendment, 
 unless I find a general disposition to open the 
 question again. I therefore move to lay the prop 
 osition of the gentleman from Worcester, (Mr. 
 Knowlton,) upon the table. 
 
 Mr. BUTLER, of Lowell. That is one of the 
 matters which I should like to discuss, and I 
 appeal to the gentleman for Manchester, if he 
 thinks it is fair to make that motion ? If he will 
 withdraw the motion, I will renew it. 
 
 Mr. DANA. The objection will be, that the 
 gentleman from Lowell would discuss the merits 
 of this proposition, and I would not. 
 
 The PRESIDENT. The Chair would suggest, 
 that the motion carries the resolution and amend 
 ments, all together. 
 
 Mr. LORD, of Salem. I would inquire of the 
 Chair, if the motion made by the gentleman for 
 Manchester, to lay the amendment of the gentle 
 man from Worcester upon the table, if adopted, 
 carries anything with it upon the table, except 
 the resolution which is to be amended ? 
 
 The PRESIDENT. The Chair understands, 
 that it carries with it the fourth resolution. 
 
 Mr. DANA. I understood the Chair to say, 
 that it carried the whole. Then, if it only carries 
 the fourth resolution with it, I adhere to my 
 motion. 
 
 Mr. ALLEN, of Worcester. I would ask the 
 Chair, if a single resolution, a part of a series, 
 can be laid upon the table, without laying the 
 whole series upon the table ? If you lay one por 
 tion of a resolve upon the table does not the act 
 of necessity carry the whole there ? 
 
 The PRESIDENT. The practice in consider 
 ing a resolution of this character, is to take it up 
 and vote upon its several parts, separately, if such 
 a desire should be manifested on the part of any 
 member. A motion is made to amend one of the 
 series of resolves upon this subject, which the Chair 
 does not understand, has any connection with the 
 rest ; and the Chair has ruled in this matter, 
 according to the practice which has been adopted 
 here, of considering resolutions separately. 
 
 Mr. EARLE, of Worcester. It appears to me, 
 according to the recollection I have of legislative 
 proceedings, that in a proposition of this kind, 
 you cannot lay any portion of a report or bill 
 upon the table, without laying the whole upon the 
 table. You may take up a report and consider 
 
 it in detail, but you cannot take one part of a 
 proposition and lay it upon the table. 
 
 Mr. HUBBARD, of Boston. I rise to a ques 
 tion of order. I believe the only motion pending, 
 is to lay the amendment of the gentleman from 
 Worcester upon the table, which I understand is 
 not a debatable motion. The Chair has ruled 
 upon the question, and no appeal has been taken. 
 
 Mr. HOOPER, of Fall River. I wish to make 
 a motion to amend the second resolution, which I 
 believe will take precedence of the motion made 
 by the gentleman for Manchester, according to the 
 decision of the Chair made a few days ago, that 
 a motion to amend a previous section took pre 
 cedence of a motion to amend any other part of 
 a resolve. 
 
 The PRESIDENT. If the gentleman will 
 withdraw his motion for a moment, the Chair 
 will state, that upon reflection, he is satisfied that 
 his decision is not correct. When the gentleman 
 for Manchester made his motion, the Chair sup 
 posed it would necessarily carry with it the whole 
 question ; but the suggestion of gentlemen, that 
 the practice has been to consider these matters 
 separately, inclines me to the opinion that it would 
 only carry with it the fourth resolution. But, 
 no motion being made to consider them separ 
 ately, the Chair rules that the motion to lay the 
 amendment on the table, carries the whole with it. 
 
 Mr. DANA. I made the motion, that the 
 question be taken on the resolution separately. 
 
 Mr. BUTLER. I rise to a question of order. 
 The first motion of the gentleman for Manches 
 ter, was to lay the amendment on the table; 
 and afterwards asked to have the vote taken, 
 separately. 
 
 Mr. HOOPER. I would inquire whether my 
 motion, being for an amendment of the second 
 resolution, does not take precedence ? I believe 
 that was the decision yesterday. 
 
 The PRESIDENT. The Chair is of opinion 
 that it does not. The whole of the resolutions, 
 being at the time the -motion was made under 
 consideration, the motion, to lay on the table carries 
 the whole with it. The simple question is, on the 
 motion to lay the amendment on the table. 
 
 Mr. DANA. I rise for information. The gen 
 tleman from Worcester, (Mr. Knowlton,) did not 
 move an amendment to all the resolutions ; but 
 he moved an amendment to the fourth resolution. 
 The Chair states, that if I move to lay that amend 
 ment on the table, it carries the whole of the 
 resolutions with it. That must be on the suppo 
 sition that the amendment of the gentleman from 
 Worcester, applies to the whole subject. I then 
 withdraw my motion to lay the amendment on 
 the table, and move for a division of the subject, 
 
182 
 
 THE JUDICIARY. 
 
 [62d day. 
 
 Wednesday,] 
 
 DANA BUTLER GKAY. 
 
 [July 20th. 
 
 so that each question may be taken separately, 
 and then the question on the amendment offered 
 by the gentleman from Worcester, must wait till 
 we come to the fourth resolution. 
 
 The PRESIDENT. The whole question was 
 pending. The question was on ordering the 
 whole of the resolutions to their final passage. 
 The gentleman from Worcester moved to amend, 
 when that motion was pending, and the gentle 
 man from Manchester moved to lay the motion 
 to amend upon the table. The Chair rules that 
 if that motion be carried, it carries the whole 
 question, and lays the whole subject upon the table. 
 
 Mr. DANA. I have withdrawn my motion 
 to lay the motion to amend upon the table ; and I 
 call for a division of the subject, so that the ques 
 tion may be taken separately. 
 
 Mr. BUTLER. That call, of course, will be 
 heard at such time as it can be done, by parlia 
 mentary rule. I do not propose to speak upon 
 the division of the question. Any member has 
 a right to call for a division of the question when 
 a vote is about to be taken. 
 
 Mr. GRAY, of Boston. I rise to a question 
 of order. I understand that any member has a 
 right to call for a division of the question at any 
 time. I understand my friend for Manchester 
 has called for it now. I beg the gentleman now 
 speaking to understand that I do not oppose any 
 latitude being given, but I understand they are 
 divided. 
 
 The PRESIDENT. The gentleman for Man 
 chester calls for a division of the question now. 
 Any member has that right ; and when the ques 
 tion is put, it will be upon the first resolution ; 
 but the whole question, and all the resolutions 
 are open for discussion. 
 
 Mr. BUTLER. That was precisely the way I 
 understood the matter ; and I do not think the 
 judges will save their lives by parliamentary 
 tricks and manoeuvres. In my judgment, if the 
 judiciary of Massachusetts stands on no firmer 
 foundation than mere parliamentary rules, the 
 quicker it is tipped over the better. I propose 
 that this question shall be met fairly, and on its 
 merits. I wish, now, to disabuse the mind of 
 the gentleman for Manchester, of one or two 
 errors which he put forth, and in which he seemed 
 to wish to carry the Convention along with him. 
 The first is, that that vote heretofore given shows 
 any result like that which he stated. He says, 
 we must not touch this subject now, because the 
 President said, very properly, that where the 
 votes are pretty evenly balanced, it is well not to 
 make any great change in the Constitution. So 
 I agree, and so I would agree, in the application 
 of it to this case, if the premises of the gentle 
 
 man were correct. But I know of many men 
 who are in favor of an elective judiciary, and 
 who are in favor of the abolition of the life tenure, 
 in some form, who voted with the gentleman for 
 Manchester the other day, and against the tenure 
 for ten years. And why ? Because they thought 
 it not enough. I can put my eye on many who 
 voted against the ten years tenure, because they 
 thought it was not all they wanted ; because they 
 thought it did not crack the old shell widely 
 enough. 
 
 But this proposition of the gentleman from 
 Worcester, commends itself to my judgment. It 
 has two elements in it that I approve. The one 
 is an appointment for a given term, holding the 
 judges responsible to the people ; and the other 
 is, that the appointment shall be confirmed by the 
 Senate, and the Senate is to be elected by the peo 
 ple; in like manner the Senate of the United 
 States has a confirming power. Again, the ap 
 pointment has to lie seven days before it is con 
 firmed, so that we can know who is nominated 
 before he gets into an office for life. Aye, Sir, I 
 know judges, and I could call names, if I was 
 provoked to it, who, if their nomination had lain 
 over seven days before the Senate, would have 
 stood as much chance of being confirmed, as they 
 would of being elected, if the question had gone 
 to the people; and that is putting it strong enough. 
 But the difficulty is, they are appointed ; it is 
 done in the Council- Chamber, and I do not pro 
 pose to interfere with the Council now. But it 
 is done in the Council- Chamber, and nobody 
 knows who the judge is to be, until he is a judge, 
 and there is an end of it, so far as getting at him 
 is concerned, except by impeachment. And if he 
 knows just enough not to do any great wrong, or 
 if he does not commit any flagrant outrage, he 
 can go along, and nobody can interfere with him. 
 I have had my attention specially called to this 
 matter by an article which I find quoted, with a 
 great deal of approbation, in a leading political 
 newspaper, which goes in strong for the life 
 tenure of the judges. I mean the Boston Atlas, 
 which meets the approval of the conservative 
 portion of this Convention. And, as though 
 that was not enough, it is copied from the North 
 Adams Transtript, which I commend to my 
 friend from North Adams, (Mr. Dawes,) as being 
 under his particular jurisdiction. It seems that 
 a man by the name of Howe, has been appointed 
 down in Haverhill, for a judge of probate. Now 
 the Whig papers defend that appointment. What 
 is the reason ? I will read the article, as it is 
 short : 
 
 " N. S. Howe, of Haverhill, a member of the 
 
62d day.] 
 
 THE JUDICIARY. 
 
 183 
 
 Wednesday,] 
 
 BUTLER. 
 
 [July 20th. 
 
 State Senate, has been appointed, by the Governor, 
 a Judge of Probate for Essex County, in place of 
 Daniel A. White, resigned. This appointment 
 has given rise to some dissatisfaction, and intima 
 tions are thrown out, in some quarters, that it is 
 an injudicious one. It would be strange if, in 
 every instance, the governor should be so fortu 
 nate as to make the best selection that could be 
 made. But in this instance, we have no hesita 
 tion in saying that we believe he has made, un 
 der all the circumstances, the best appointment 
 that could be made from among the applicants." 
 
 Now comes the reason : 
 
 " Mr. Howe is a stirring, active young Whig, 
 and we believe his appointment, (and we think our 
 sources of information are tolerably good,) will 
 give more general satisfaction to the live, moving 
 Whigs of the county, than that of any other man 
 mentioned for the office. We suspect the mourn 
 ings, if traced out, will be found to come from 
 interested, if not disappointed, persons, who, until 
 they have manliness enough to back up their in 
 sinuations by something tangible, or put their 
 hands to paper, as they have been invited to do, 
 had better say less." 
 
 Here is a man who is to settle the estates un 
 der the beautiful system which the gentleman for 
 Manchester is so anxious to retain ; or if he can 
 not remain there for life he is to remain till he 
 turns old fogy, which is the next step to death. 
 
 Mr. DANA. He holds his office only three 
 years. 
 
 Mr. BUTLER. Aye, but it would be for life 
 if the gentleman could have his way. True, we 
 have made the judges of probate elective once in 
 three years. Sir, I thank God we have got a 
 chance at that young Whig, in the county of 
 Essex, in about a year. This is the life system, and 
 these are the reasons given when there is dissatis 
 faction manifested, when the men of the county 
 say we do not want him. How is the appoint 
 ment defended ? On the ground that he is a live, 
 active young Whig. And that is endorsed by a 
 newspaper in the western part of the State, which 
 I have heard is edited by one of the Executive 
 Council, and then reendorsed by the Boston 
 Atlas. Is this right ? Suppose we had put that 
 man before the Senate. What would have been 
 the result ? Would he have been confirmed for 
 that reason ? I grant that we must go to appoint 
 ments ; I grant that is the best which can be done 
 now ; because, I am sorry to say, we cannot have 
 an elective judiciary. Let there be five more, or 
 ten more one in each county of such appoint 
 ments, and that would settle the question. But 
 the motion of the gentleman from Worcester ex 
 actly meets my difficulty. We have by that an 
 appointment once in seven years, and then we 
 
 have the nomination lie over seven days ; and if 
 the people are dissatisfied they can go to the Sen 
 ate and have an understanding upon the subject 
 after the appointment has passed the ordeal of the 
 Council. 
 
 A word as to what was said by the gentleman 
 for Manchester, who, although he said he did not 
 argue the question, yet with an adroitness which 
 does him honor as a member of a somewhat adroit 
 profession still put forth the strongest argument 
 which lay in his mind. He says we cannot put 
 the Constitution to the people by piecemeal. I 
 agree with him in that ; we cannot do it. I was 
 afraid it would be done. For there is very much 
 of my success in my profession depending on the 
 adoption of this Constitution, because I do not 
 know what will be visited upon me from the 
 judges, because I have laid my unhallowed hand 
 upon the judiciary. But I am willing to take the 
 risk, for I have been among the people since this 
 matter came before the Convention, and I under 
 stand how they feel since I have seen them, and 
 since this Convention has promulgated the idea 
 that the people were not to be trusted with the 
 election of the judges. That fell upon the people 
 of the Commonwealth like a cloud, and no man, 
 of all those I have met, except those in the ranks 
 of conservatism, but what said : is it possible that 
 the Convention has taken such a step ? And those 
 steeped in conservatism turned up their eyes, and 
 said : " Well, you are a good reformer, but you 
 are afraid of the judiciary." The laymen here 
 know whether this is true or not. We could 
 have carried that question of the election of the 
 judges if the lawyers had not been a set of cow 
 ards. You were afraid of the judges, it is said, 
 and you wanted to plaster and gloss over the 
 matter. That is the way they speak outside of 
 us. But I want it understood that I am not 
 afraid of the judiciary. I am not very anxious 
 on that point ; my works may speak for me. 
 
 Now, we come to the people, if we sustain this 
 amendment, and we say to the people, your judges 
 shall be made amenable to you, once in seven 
 years, through the Governor elected by you, and 
 through the confirmation of a Senate elected by 
 you. I ask gentlemen if they are not ready to 
 put this into the Constitution, as a whole ? In my 
 judgment, it will carry with it three or four other 
 measures which have not quite come up to the 
 expectations of the people. I believe in the 
 effect of the popularity of this measure. I may 
 be mistaken ; but I am not mistaken about the 
 feeling in the Convention. The feeling here, I 
 have no doubt is, that an elective judiciary would 
 be best. But there is a little distrust of the 
 people. Let us lay aside this distrust, and put 
 
184 
 
 THE JUDICIARY. 
 
 [62d day. 
 
 Wednesday,] 
 
 BUTLER DANA. 
 
 [July 20th. 
 
 the proposition to them, and when we do it we 
 shall get the response. 
 
 There is one thing which I wish to state, and I 
 challenge contradiction in regard to it : that in 
 every instance where the proposition to either 
 elect judges, or to appoint them for a limited time, 
 has been submitted to the people, with either 
 proposition as a separate proposition ; the prop 
 osition to elect the judges has received more votes 
 than any other which was put to the people at the 
 game time. 
 
 There was not a man found in New York to 
 stand up against it at all. Where it has been 
 put separately, even in the conservative State of 
 New Hampshire and I commend that to my 
 friend from Cambridge especially where they 
 have been subject to such a state of things that if 
 any State could have been wedded to the life 
 tenure, it should have been that State ; there, the 
 proposition to limit the term of the judges, and 
 alter their tenure, was received with more favor 
 than any other proposition, being put separately. 
 
 Sir, I have listened to the arguments on the 
 one side and on the other, and I have carefully 
 weighed them in my own mind ; and I wish 
 gentlemen to understand that when I voted 
 against the ten years tenure, I did it not that I 
 loved the life tenure more, but that I loved the 
 ten years tenure less. It was not because I wanted 
 a ten years tenure, but because I wanted the ten 
 ure of seven years. 
 
 There is a sort of magic about the number seven, 
 if I may be permitted to say so. The Jews had a 
 jubilee every seven years, under the Mosaic law, 
 and so should we if we could get out some of our 
 judges. [Laughter.] I could tell you a thou 
 sand reasons in favor of seven years, and against 
 ten ; but, more than all that, it is the shortest 
 period. I will take occasion to repeat, that I may 
 disabuse the minds of members of the Convention 
 of the impression which might be created by the 
 remarks of the gentleman for Manchester, that 
 the vote indicated the state of feeling. I wonder 
 if in this he included me, for I was one of the one 
 hundred and sixty gentlemen, and I know of 
 several members, who, if they would speak for 
 themselves, would say that they voted the same 
 way, because they thought we did not get enough. 
 They wanted more. 
 
 And as the gentleman for Manchester has 
 started this matter of parliamentary tactics and 
 holding us to the rule, I propose, before we get 
 through, to hold that same chalice to his lips. 
 If we carry on these parliamentary tactics, as well 
 as himself, I trust he will not complain. 
 
 Mr. DANA, for Manchester. I hope that so 
 important a question as this, affecting ourselves 
 
 and our posterity in Massachusetts for a great 
 many years to come, will not be prejudiced in 
 this Convention by any consideration of the man 
 ner in which the question arises. When the 
 proposition was moved by the gentleman from 
 Worcester, it seemed to me that there were cer 
 tain preliminary considerations, not touching the 
 merits of this case, that should settle it ; and there 
 fore I proposed to get the sense of the Convention 
 at once, by moving to lay it upon the table, and 
 let the Convention decide whether it ought to be 
 voted down. Because, if the motion failed, the 
 whole subject was up for discussion ; and if it 
 prevailed, it would show that the Convention did 
 not want to entertain the proposition. I do not 
 consider that a parliamentary ruse ; it was a par 
 liamentary proposition, and if there were any 
 parliamentary ruse about it, the ground taken 
 that this Convention could not decide upon the 
 preliminary question at all, but that the whole 
 question must be decided at once, had much 
 more of that aspect. 
 
 I thought the preliminary consideration 
 should settle this matter ; that it was not worth 
 while now to enter upon the discussion of the 
 question as to the judiciary, and I wished the 
 Convention to say so ; but I have been prevented, 
 by a parliamentary ruse, from getting that ques 
 tion before this body ; and now we cannot avoid 
 the discussion of the whole question. I do 
 not mean to alarm the House by proposing to 
 discuss the merits of the whole question ; but 
 what I have to say I shall say as briefly as may 
 be. And I will remark, in the outset, that I pro 
 pose to discuss it in a very different manner from 
 that in which it was discussed by the gentleman 
 from Lowell. It seems that the gentleman from 
 Lowell has been out among the people, and he 
 has heard it said that he was afraid, or rather, 
 that the lawyers, here, were afraid, and did not 
 dare to come up to the work. He desires to show 
 that he is not afraid. But, Sir, it is not necessary 
 to amend the Constitution in order to prove that 
 the gentleman from Lowell is not afraid. I think 
 it was decided by the legislature last year that he 
 was not afraid of anything. [Laughter.] I was 
 not here at the time, but I understand that such 
 was the decision. He has shown, farthermore, 
 that he is not afraid by bringing this forward and 
 making his speech. He has exhibited his courage, 
 and no man here doubts it ; and it was not nec 
 essary that he should have proclaimed it upon 
 this floor. Another thing, which I wish to sug 
 gest, is, that this question ought not to be 
 decided by any reference to special cases of ap 
 pointments. It seems that one Mr. Howe, of 
 Essex, has been appointed to office, and it seems 
 
62d day.] 
 
 THE JUDICIARY. 
 
 185 
 
 Wednesday,] 
 
 DANA. 
 
 [July 20th. 
 
 that some injudicious newspaper has given a very 
 wrong and a very bad reason for the appointment. 
 Now I want to ask the Convention whether they 
 will decide this important question on a mere 
 article from the North Adams Transcript per 
 haps as good as any other paper but will you 
 decide upon one paper or upon all the papers in 
 Massachusetts ? Will you decide, upon the case 
 of one Mr. Howe, or all the Mr. Howes in Mas 
 sachusetts ? Will you decide it by one judge of 
 probate, or all the judges of probate in the Com 
 monwealth ? I trust that we shall put out of the 
 question any newspaper paragraph, or any man s 
 courage, or want of courage. I hope we shall 
 decide this matter upon general principles. 
 Besides, if Mr. Howe s appointment was an im 
 proper one, did not the governor nominate him ? 
 Whom does the gentleman from Lowell propose 
 shall nominate his judge ? Why, the governor 
 the same officer who nominated Mr. Howe. 
 
 Mr. BUTLER, (in his seat). The Senate is 
 to confirm him. 
 
 Mr. DANA. The gentleman says that the 
 Senate is to confirm him. That is true ; but does 
 he suppose that a Whig Senate will not confirm 
 "an ardent young Whig " like Mr Howe ? Does 
 he suppose that that fact would be any objection 
 to him in a Whig Senate ? And suppose we had 
 a Democratic Governor and a Democratic Senate, 
 is it not perfectly clear that we should have some 
 ardent young Democratic lawyer [laughter] nom 
 inated for judge by this Democratic Governor, and 
 confirmed by this Democratic Senate ? 
 
 Mr. BUTLER, (in his seat). Not for life. 
 
 Mr. DANA. It would be done every year, 
 and that is 110 better. We should have a series 
 of ardent young Democrats, and there would be 
 no chance for any of them to grow older and 
 wiser in office. [Laughter.] That is all that we 
 should gain by it. 
 
 Then it seems that the gentleman is supersti 
 tious. With all his courage, he is a victim of 
 superstition. He voted against a ten years ten 
 ure, and will vote for a seven years tenure, 
 because seven is a sacred number ! He says 
 that the Jews had a jubilee every seven years, 
 and therefore he wants a judge of the supreme 
 court for seven years. Now, a superstitious man 
 who reasons well about everything else, seldom 
 reasons well about superstition. And he must 
 remember, when he quotes the Jews for authority 
 as having a jubilee every seven years, that we 
 also read that they had seven years of famine, 
 while they were in Egypt. [Great laughter.] 
 
 Mr. BUTLER, (in his seat). That was a curse 
 upon them. 
 
 Mr. DANA. Well, I am afraid we shall have 
 
 a curse upon us, if we follow bad examples. Our 
 ancestors had a seven years war, which turned 
 out well ; but does anybody want a repetition 
 of it every seven years ? I am not satisfied with 
 making this change out of a superstitious venera 
 tion for the number seven, or for any other rea 
 sons which have been given. In sitting here as a 
 deliberative assembly to make great fundamental 
 changes in the Constitution, let us consider the 
 matter seriously, and in a manner becoming the 
 great questions which we have to pass upon. 
 Let me repeat what I said when I moved to lay 
 the resolution upon the table, that I think we had 
 better drop the whole subject. The gentleman 
 from Lowell says, that the vote the other day 
 was not a test vote, for there was a majority of 
 two against the proposition, and he knows of 
 four or more who voted for special reasons, 
 because they could get seven, and could not get 
 ten persons under the same hallucination about 
 the number seven. 
 
 Mr. KNOWLTOX. If the gentleman will 
 allow me, I will state that I voted for their election, 
 and voted against the term of ten years ; and I 
 did so as a matter of compromise. 
 
 Mr. DANA. It seems that there were four 
 then, and that would leave just two in favor of 
 the proposition, or about a measuring cast. How 
 many gentlemen there may be, who follow in the 
 wake of the gentleman from Lowell, I do not know, 
 and I do not believe that he can tell himself; I 
 do not believe that any man can count his ad 
 herents in this body he says he knows of four ; 
 but I know of some who voted for the proposition 
 of the gentleman from Natick, for a ten years 
 tenure, who may vote against the whole thing 
 now, upon the principle which I relied upon 
 when I moved to lay this resolution upon the 
 table ; that is, to let bygones be bygones. As I 
 said before, we ought to do so, because we must 
 submit this Constitution to the people as an 
 entirety. I will satisfy any gentleman, who will 
 go into the Senate- Chamber and look over the 
 work which I had the honor to have confided to 
 me by the chairman of the Committee, in making 
 up the parts of this Constitution, that this is inevi 
 table. The gentleman from Lowell says he is of 
 that opinion also. Now, I ask the friends of this 
 Convention, who must be responsible for the 
 success of this Constitution, whether they think 
 it worth while to peril it by referring this ques 
 tion, or by altering our judiciary system ? Sir, I 
 think they have got a good deal to do to carry this 
 Constitution. There will be a good deal of hos 
 tility to some of the essential principles which we 
 have maintained here ; and if in addition to that, 
 we stir up all the feeling in this Commonwealth 
 
186 
 
 THE JUDICIARY. 
 
 [62d day. 
 
 Wednesday,] 
 
 DANA. 
 
 [July 20th. 
 
 by an unadvised change in the judiciary system, 
 it will be a great risk to run, for the people of the 
 Commonwealth are attached to the judiciary sys 
 tem. They have no complaint to make about it. 
 Some lawyers who have lost cases may complain, 
 and may think they have been ill-treated ; but 
 the great body of the people do not complain. If 
 you attempt to reduce the tenure of the judges to 
 seven years, you will find a good deal of popular 
 feeling against it. 
 
 The argument of the gentleman from Lowell 
 was principally based on opposition to the ap 
 pointing power. It was based on the right of 
 the people to choose their judges. He says that 
 we have indicated to the people of the State, that 
 we think they are not capable of electing their 
 own judges. He says it fell like a cloud I am 
 not in the habit of seeing clouds fall where I 
 live it fell like a cloud upon the people, to hear 
 it said that they could not elect their judges. 
 But, Sir, he proposes to say this again, that the 
 people are not capable of electing their judges, 
 and that it must be left to the Governor and the 
 Senate, for he voted against the amendment of the 
 gentleman from Fall lliver. Now what kind of 
 answer is that to the popular argument ? You 
 cannot get up any popular enthusiasm in favor of 
 the seven years appointing power. That is out 
 of the question. If the people believe that they 
 have a right to elect their judges, you cannot get 
 up any popular enthusiasm in favor of increasing 
 the executive power. 
 
 Another objection which you will have to 
 counteract, when your Constitution goes out to 
 the people, is this : that you will be adding vastly 
 to the executive power and patronage. I ask the 
 gentleman from Natick, and those gentlemen 
 whose names are signed to the report of 1851, 
 saying that the executive power in this State had 
 increased, and ought to be diminished, with what 
 face they can go out to the people and say : " We 
 have increased the executive power seven-fold. 
 Our little finger shall be heavier than our father s 
 loins ; for the governor could merely appoint a 
 judge, and, after he had appointed him, he was 
 entirely out of his power for life ; but we now 
 propose to give the governor power to appoint a 
 judge once in about ten months?" That will be 
 the result. If you have the seven years tenure, 
 with the resignations and deaths that will ordi 
 narily occur, there will be a judge to be appointed 
 every ten months. You then propose to add to 
 the executive power and patronage, by giving 
 him the right to nominate a supreme court judge 
 about once in every ten months, and a common 
 pleas judge about as often two judges every 
 year ! I submit to gentlemen, what kind of ar 
 
 gument is that with which to go out to the people, 
 and ask them to support your Constitution, when 
 you tell them, we have pretended that we wanted 
 to diminish the executive power, but we have 
 given the governor the power to appoint one 
 supreme court judge and one common pleas 
 judge in the course of every year ? The objec 
 tion will be, that you have put the judiciary 
 under the control of the executive, and there 
 will be no escape from it. Some one of these 
 judges will, every year, be looking towards the 
 Council- Chamber for his fate. No gentleman here 
 can have a case come before the supreme court, 
 without knowing that some one of those judges 
 is looking to the powers that be, for his re- 
 appointment. Suppose a political case has arisen 
 a case in which parties have got mixed up, and 
 suppose the suitor has incurred party odium, 
 will he want to carry his case before such a court 
 as that ? Will not that circumstance be a strong 
 objection ? Which would you rather do : go 
 before a judge when you knew his reelection 
 was pending before a million of people, or when 
 his reappointment was pending in that Council- 
 Chamber ? The gentleman from Lowell says, he 
 wants to have a chance at that young Whig 
 judge who has been appointed in Essex County. 
 Well, Sir, he does not propose to make judges 
 of the supreme court elective. If he wants to 
 have a chance at one of the judges of the supreme 
 court, how is he going to do it ? He must reach 
 him through the executive chamber, if at all. 
 That will be the result. Whenever the gentle 
 man from Lowell wants to " have a chance at a 
 Whig judge," or whenever some Whig wants to 
 have a chance at a Democratic judge, he must do 
 it through the executive chamber. But while 
 this is going on, the friends of that judge will not 
 be idle. They will not submit to have him over 
 ridden. They will support him there, and if we 
 have occasion to go there on any public business, 
 we shall find the ardent young Democrats and 
 ardent young Whigs blocking up the lobbies of 
 that chamber, all the while that the nomination 
 of that judge is pending. Well, Sir, after he 
 gets his nomination, he must go to the Senate to 
 be confirmed, and there it will be just about as 
 bad. The same spirit will prevail, and whether 
 he be a Whig judge or a Democratic judge, there 
 will be the lobbying for and against him, and 
 this contest will be kept up by a great many per 
 sons, and the influence will be felt throughout 
 the State. 
 
 Now, I do not know that I can convince gen 
 tlemen in this Convention that that would be a 
 bad principle ; but I can tell them that there will 
 be people enough in the State who will think it 
 
62d day.] 
 
 THE JUDICIARY. 
 
 187 
 
 "Wednesday,] 
 
 DANA LORD. 
 
 [July 20th. 
 
 a bad principle to make it quite worthy of their 
 serious consideration, whether they will put it 
 into the Constitution, and add that risk to the 
 one they have already run on the subject of the 
 town representation. Now, I put it to the calm 
 good sense of gentlemen who do not feel excited 
 on the subject, who have not been out and had 
 their courage questioned, and got excited ; or who 
 have not read newspaper paragraphs and got excit 
 ed I put it to calm-minded gentlemen in this as 
 sembly, whether they had not better let the thing 
 rest where it rested last night. If you want issues 
 before the people, do something that you said you 
 were going to do when you came here. Introduce 
 the plurality system. It will be popular in the end. 
 Abolish the Council, or adopt some other popular 
 measure. Do something which you proposed to 
 do, and not something which the people never 
 had any idea you intended to do ; something that 
 no issue has been raised upon. The people will 
 not feel a great deal of interest in a matter which 
 is to be transacted between a governor and a judge, 
 once in seven years, in that chamber. The 
 people will have no chance here. But once in 
 seven years, the judge, by himself, or his friends, 
 is to lay his case before the governor, and his 
 enemies will lay their case before the governor 
 also. And what do the people care about that ? 
 Why, Sir, the people, looking carefully to their 
 rights, will say we would rather have no such 
 doings between the judges and the governor ; 
 we would rather have a judge who is responsible 
 only to us by impeachment or by address. As 
 one of the people of Massachusetts, who have 
 more interest in the right decision of cases than I 
 have as counsel because as counsel, probably, 
 I should gain or lose one-half of my cases, for 
 such is usually the fortune of life ; but my life, 
 liberty, property, and reputation, may rest any 
 moment upon the decision of the supreme court 
 as one of the people, I would rather that there 
 should not be a private transaction once in seven 
 years between the judge and the governor, in 
 volving the official life of the judge before whom 
 I have causes to try, and on whose impartiality 
 my client s all, or my own, may depend. 
 
 [The gentleman s half hour having expired, 
 the hammer fell.] 
 
 Mr. LORD, of Salem. I rise, Sir, not for the 
 purpose of entering into a lengthy discussion of 
 this question, but rather for two purposes : one 
 to take away the pretence which the gentleman 
 from Lowell has laid before the Convention as the 
 reason why the Convention was divided so 
 closely on the vote which was taken last Thurs 
 day. I propose to take away that pretence, and 
 to show that every proposition which has been 
 
 entertained by this House, or which has been 
 presented before us, has met with favor only in 
 proportion as it has approximated the present 
 state of things. "When it was proposed to make 
 the judiciary elective for seven years, there were 
 more than a hundred and twenty-five majority 
 against it. When it was proposed by the gentle 
 man from Lowell himself to have them appointed 
 for seven years against ten years, there was a 
 majority of ninety-six against it in this House ; 
 and the same page which records the vote of two 
 majority against the ten years tenure, records the 
 vote of ninety-six majority against the tenure for 
 seven years, upon the motion of the gentleman 
 from Lowell himself, for he moved to strike out 
 " ten" and insert " seven " in its place ; and 
 eighty- eight gentlemen only voted in its favor ; 
 and one hundred and eighty-four against it, as 
 an examination of the record shows ; which ex 
 amination I have made within the last five 
 minutes. 
 
 Then, Sir, the gentleman says that this is a new 
 proposition, because it is now proposed that these 
 appointments shall be submitted to the Senate for 
 ratification. Sir, that same proposition was also 
 made, and voted down without a count. There 
 was not a minority sufficient in favor of that 
 proposition to divide the House upon. Now, Sir, 
 I say that that pretence cannot stand here that 
 this proposition was defeated the other day be 
 cause the Convention desired a seven years pro 
 position instead of ten years. Every vote has 
 shown that any proposition has received favor, 
 just in proportion as it has approximated to the 
 present tenure. 
 
 Now, Sir, I said that I was not going to dis 
 cuss this matter ; and I only desire to express my 
 preference for the mode of the gentleman from 
 Fall River, over that of the gentleman from Wor 
 cester. If the office of judge is to be made a 
 political office, let the people, and not the execu 
 tive, take care of it. I am willing that the people 
 should elect their judges. I have no fault to find 
 with that. It is only the tenure that I want to 
 have independent. I do not care how they are 
 appointed. I think the people can elect them 
 better than the executive can appoint them ; but 
 I want an independent tenure when they are put 
 there ; and if it should turn out that either the 
 one term or the other is to be adopted, if a judge 
 is to be appointed every four months which will 
 be the case if the calculation of the gentleman 
 for Manchester, (Mr. Dana,) is correct I prefer, 
 infinitely, that the people should make such new 
 judge, rather than the executive. The gentle 
 man for Manchester, according to his calculation, 
 says that there will be, at least, two judges to be 
 
188 
 
 THE JUDICIARY. 
 
 [62d day. 
 
 Wednesday,] 
 
 LORD HALLETT. 
 
 [July 20th. 
 
 appointed every ten months one supreme judge, 
 and one common pleas judge that is, at least, 
 one judge in every five months. 
 
 But, Sir, there is an objection to the resolution, 
 which I wish to suggest to the consideration of 
 the gentleman who moved it. This is the final 
 stage of this matter. By a parliamentary rule, 
 which cannot be avoided, except by a suspension 
 of it, if we insert that resolution as it is and the 
 question now comes up upon it we must stand by 
 it. There is no mode by which we can change 
 seven years to ten or fifteen years, or to any other 
 period. Having adopted this, and there being no 
 other stage, it must finally stand as it is adopted. 
 Gentlemen should remember that the inconven 
 ience of this sort of thing was felt at the close 
 of the Convention of 1820, when they were 
 obliged to suspend the rules to get out of a dif 
 ficulty, having inserted a number in a resolution 
 in which the number should have been left blank. 
 I suppose that the gentleman from Worcester 
 would accomplish his object, if he left the period 
 blank ; it would, at all events, be quite as well as 
 to fill it with the word " seven." But, still I do 
 not propose to offer any amendment in that res 
 pect ; because, if I can judge at all of the charac 
 ter of this Convention, inasmuch as by a majority 
 not of TWO, but of NINETY-SIX, this Convention 
 has already determined that they will not have a 
 seven years tenure. Unless the gentleman from 
 Lowell knows members enough who will turn 
 round with him, and change that majority of 
 ninety-six, his majority of four comes to nothing. 
 His little matter of four is a very trifling number 
 in this respect, because we are dealing with a 
 proposition that we have dealt with before a 
 proposition for a seven years tenure ; and that 
 proposition the Convention has voted, by a major 
 ity of ninety-six, that they will not adopt; and 
 that is the only motion which can be submitted, 
 according to the proposition of the gentleman 
 from Worcester, and having been thus made, it be 
 comes unalterable. 
 
 Now, I desire only to make another observa 
 tion, so that I may stand right, and it is this : if 
 the gentleman will propose such a tenure of office, 
 so as to make it an object for suitable persons to 
 take upon themselves its responsibilities, and will 
 not permit them at all to be candidates for reap- 
 pointment, then I will go with him ; but I am 
 not willing to make the office of judge a merely 
 political office, so that when they decide, as one 
 gentleman said the other day they decided incor 
 rectly in relation to the fugitive slave law, that 
 caucus resolutions shall say that that decision is 
 wrong, and they must make such a judge as will 
 set the matter right ; I am not willing to say that 
 
 the great party perhaps the majority party in 
 Massachusetts to-day shall say : " We have 
 determined that the law for the suppression of 
 tippling-houses, or whatever else it may be, is a 
 constitutional law, and we will resolve it to be 
 constitutional in the same caucus by which we 
 nominate our judge, who must accept the nomi 
 nation, with the resolutions annexed, " [laughter,] 
 or not at all because all political men, when they 
 accept office now-a-days, or even nominations for 
 office, must accept with " resolutions annexed," 
 platform and all [renewed laughter]. I say I 
 do not care what the decisions of a judge may 
 have been, when a party caucus shall have re 
 solved a great question of political law ; then the 
 judge who is to receive an appointment or nomi 
 nation from them, is a judge whose opinions are 
 made for him to his hand before he goes upon 
 the bench, or who is continued upon the bench 
 in consequence of these opinions. Sir, I want a 
 judge to be entirely free from any considerations 
 of this kind. How that is to be accomplished, I 
 do not know ; but certainly, to make the tenure 
 of office a seven years tenure, will not make him 
 independent. If gentlemen will bring their minds 
 to bear upon that proposition, whenever they will 
 show me a mode in which a judge shall fear no 
 thing but God, whenever they have found out 
 that, then I am ready to go with them and vote. 
 But I do not see how that is to be, if he is to be 
 dependent upon any political organization, be 
 cause if the governor appoints him for this short 
 tenure, he is as much dependent upon political 
 organization as any officer of the State can be, 
 I say, if he is to be thus made dependent upon 
 any political organization, the system which pro 
 poses it can never have either my approval or my 
 vote. 
 
 Mr. HALLETT, for Wilbraham. This sub 
 ject has been discussed heretofore, and discussed 
 mainly upon one side ; there are nearly equal 
 differences of opinion prevailing here upon it. 
 The votes, which have already been taken, have 
 shown a nearly balanced division of opinion. I 
 do not know that anything that I can say, will 
 affect that opinion, one way or the other. I had 
 an opportunity, the other day, of just seven min 
 utes, for expressing, rather what might be termed 
 a sentiment, than of making an argument, upon 
 the life tenure office. I desire to add a few words, 
 to-day, and leave the Convention to decide upon 
 this matter, as to them may seem best. To me, 
 this is not in any sense a question of personal 
 feeling, or private griefs ; but a question of prin 
 ciple. I wish it to be considered and discussed 
 without any possible reference to existing judicial 
 officers. Sir, my relations to all the judicial offi- 
 
62d day.] 
 
 THE JUDICIARY. 
 
 189 
 
 Wednesday,] 
 
 HALLETT. 
 
 [July 20th 
 
 cers of the Commonwealth however hard I may 
 have found it in the beginning are of the kind 
 liest character ; and it is impossible for me to en 
 tertain any feeling of disrespect towards any of 
 them. 1 think they sometimes err in matters of 
 courtesy, and in sauvity to counsellors and par 
 ties ; and from my long experience of the effects 
 of life tenure upon the personal bearing of judges 
 generally, I have believed, and do now, that they 
 need some court of errors to stand behind them ; 
 either the elective principle, or the rule of periodi 
 cal appointment. I, therefore, for one, feel pret 
 ty certain that I can lift myself above all personal 
 considerations on this question. Indeed, if I 
 have any difficulty at all, it is the pain I feel in 
 common, I know, with other gentlemen of the 
 bar, who think with me at the supposition, in 
 any shape, being entertained, anywhere, that 
 members of this Convention, or any lawyer in it, 
 could be actuated by any personal feeling towards 
 any judge on the bench, in proposing amend 
 ments, either to elect judges, or to limit, in 
 appointments hereafter to be made, the old life 
 tenure to a term of years. 
 
 When this question first came up, many days 
 ago, I said I was not in favor of a present election 
 of judges, but I was in favor of a limited term for 
 future appointments of new judges, of ten years ; 
 and this, I still think, is the only ground we can 
 strongly stand upon, and can carry before the peo 
 ple. I have no question that the election rule is 
 the true one, but it is not expedient to resort to it 
 now. The member from New Bedford, (Mr. 
 French,) demonstrated, that in the present state 
 of parties in this Commonwealth, it would be un 
 wise to run the risk of a fusion of parties who 
 might elect judges for the reason he wanted 
 them elected, namely, because he wanted a chance 
 to choose a judge who would not be such a cow 
 ard as to regard his oath to support the fugitive 
 slave law ! And having thus alluded to that 
 rather extraordinary, though not very alarming 
 outbreak from the eccentric member from New 
 Bedford, I desire to say, that in regard to the ten 
 ure of office for the judges of the Commonwealth, 
 or any change to be made in it, I have not the 
 most remote idea of referring to any decisions of 
 the courts, or its members, as affecting this ques 
 tion ; because, I think we should aim at princi 
 ple and not at the officers ; and hence it was, that 
 if 1 had had, for a moment, any doubt in my 
 mind as to the propriety of now providing for 
 electing the judges which I believe, in principle, 
 is right, though I cannot deem it expedient in the 
 present state of things my mind would have been 
 brought to the conclusion that it was not expe 
 dient now to elect judges, by the remarkable ar 
 
 gument used by that delegate from New Bedford, 
 (Mr. French,) which was, in direct effect, that you 
 must appeal to the people, in order to induce them 
 to elect judges who are not such cowards as to 
 adhere to their oaths to support the Constitution 
 and laws of the United States, which include the 
 fugitive slave law ! I did not answer that re 
 mark then, and I do not propose to answer it now ; 
 but I mean plainly to meet and repel that princi 
 ple, or rather perversion of principle, whenever 
 it arises, in this Convention, or elsewhere. And, 
 while I do so, I wish, at the same time, to express 
 my great respect for gentlemen differing from me 
 in regard to the construction of some particular 
 law of the United States, which has made strong 
 party issues, that they have most honorably, wjh 
 very few exceptions I believe the delegate from 
 New Bedford, and, perhaps one other, is the only 
 one refrained from bringing these questions into 
 this Convention. And with the like regard to 
 the harmony and good results of this Conven 
 tion, while holding very decided opinions upon 
 the other side, I have refrained from alluding to 
 them, unless it has been for the direct purpose of 
 repelling or answering. 
 
 Now, Sir, the reason why I think a great pro 
 portion of this Convention went against the elec 
 tive doctrine was, because, as some gentlemen 
 put it, if you had an unpopular law the fugitive 
 slave law or any other law which a party wanted 
 the judges to put down, and which they refused 
 to disregard, because their consciences and their 
 oaths would not let them, the party opposed to 
 the law could go to the people and stir them up 
 to a partisan heat, in order that they might elect 
 judges who will violate their oaths ! The dele 
 gate from New Bedford, (Mr. French,) or any 
 other delegate, who would use such an argument, 
 should know, not only that it is dishonoring the 
 people, but that the laws of the United States are 
 the supreme law of the Commonwealth of Massa 
 chusetts, and that all her judges are expressly 
 sworn to regard them as the supreme law of the 
 land. And, hence, if they are applied to, to set 
 aside a law of the United States, they cannot do 
 it, whatever their individual opinions may be 
 upon the subject. Therefore, I say that such a 
 proposition, to elect judges who would violate 
 their oaths, never should be entertained here, and 
 never would be entertained by the people ; and 
 moreover, I say, in relation to that very case, and 
 to the conduct of those judges, and of the learned 
 chief justice of this Commonwealth, in it, that the 
 history of judicial actions does not present an in 
 stance of more calm, dignified, prudent, deliberate, 
 and judicious conduct or decision, than was shown 
 in that case ; and there I leave it. 
 
190 
 
 THE JUDICIARY. 
 
 [62d day. 
 
 Wednesday,] 
 
 HALLETT DAW A. 
 
 [July 20th. 
 
 Now, upon another suggestion in regard to this 
 amendment of a term for seven years, which is 
 proposed by the gentleman from Worcester, (Mr. 
 Knowlton,) and which is so much opposed by the 
 gentleman for Manchester, (Mr. Dana). I desire 
 most explicitly, to enter my protest against an 
 intimation made by the latter gentleman, as if to 
 conclude the question beforehand, and that is, 
 that we should be obliged to take this Constitution 
 as a whole, and put it before the people as such. 
 I happen to be on the same Committee with that 
 gentleman upon the mode of sending the Consti 
 tution to the people, and he has no right to make 
 that assertion. The Committee have come to no 
 conclusion, and have made no such recommenda 
 tion, and there has been no legitimate action upon 
 the subject. 
 
 Mr. DANA. If the gentleman will permit 
 me, I will say, that I spoke entirely for myself. 
 I have had no conference with any one, and the 
 Committee have not acted upon the subject. I 
 suppose I stated that I am satisfied, for myself, 
 that no such course can be pursued. 
 
 Mr. HALLETT. That explanation is satisfac 
 tory ; but I would say, if the gentleman cannot 
 frame such a report, I think I can, for I have tried 
 it, and if found necessary, it can be done. The 
 only question of difficulty is arrangement and 
 expediency. If he fails, he has only to transfer it 
 to other hands, and they will see that it is done, if 
 found, on the whole, to be necessary and proper. 
 The idea that we have got to submit this whole 
 matter to the people in the lump with no reserva 
 tions, is advanced by that gentleman in this 
 debate, I apprehend, for the purpose of affecting 
 this decision. The impression, that we cannot 
 put to the people any proposition upon a doubtful 
 matter, for fear that we shall lose the whole of 
 our labors, has deterred this Convention from 
 doing many things which they believe ought to 
 be done. Why, Sir, when we get through, I fear 
 most that the people will ask us not why we did so 
 much, but why we did no more. And, I want 
 to send some propositions to the people, which 
 will show, that we have done something besides 
 sitting here and voting against propositions. If 
 there is any fear of this proposition, let it be sub 
 mitted to the people as one of the separate propo 
 sitions which must be selected out of the whole 
 Constitution. 
 
 Now, a few words upon the merits of the sub 
 ject. We have had arguments here from two of 
 the most distinguished gentlemen do I say in this 
 Commonwealth ? No, Sir. Do I say in the United 
 States ? No, Sir ; but two of the most distin 
 guished gentlemen to be found anywhere one of 
 them the most fervid, eloquent, and forcible among 
 
 the living orators of the world, (Mr. Choate) ; the 
 other, one of the most distinguished and profound 
 legal professors, whose jurisprudence has ever 
 given distinction to any legal institution in the 
 world, (Prof. Greenleaf). We have also had an 
 able argument for the life tenure, from one of the 
 most eminent judges of this Commonwealth, who 
 himself sat for fifteen years upon the bench of the 
 supreme court, (Judge Morton). Around these 
 three great legal lights have gathered I hope I 
 may be excused for saying it the lesser satellites 
 of the bar, who have come to their support. This 
 doctrine of a tenure for life for judicial officers, is 
 sustained by these gentlemen ; by distinguished 
 professors ; by distinguished advocates at the bar ; 
 who are in all possible favor with the judiciary, and 
 whose personal influence is often exceedingly effec 
 tive in turning the balance of the scale where the 
 argument is doubtful. But, while the bar and the 
 bench thus say give the judges a life tenure, what 
 say the people here ? When has a prominent 
 member risen who has supported the life tenure 
 of judges who has not been, or might have been, 
 or is not himself, in some way in the line of suc 
 cession? Now these learned gentlemen have 
 attempted to terrify this Commonwealth, and the 
 members of the Convention, by depicting the 
 awful consequences of destroying this life tenure. 
 England had it for a great while, before we took 
 it. We have had it for a long time, and gentle 
 men say, we must continue to have it, or property 
 and person will 110 longer be safe ! Well, Sir, 
 I respect, but cannot sympathise with their fears. 
 When they so solemnly deprecate this idea of a 
 change of the tenure of judicial office, and depict 
 the awful consequences which are to follow, it 
 reminds me of the similar and equally sincere 
 apprehensions of poor, unhappy George III., when 
 on the 5th of December, 1782, he signed that 
 famous message of his to parliament, acknowl 
 edging the independence of America. That very 
 pious gentleman said upon that occasion : "I 
 make it my humble prayer to Almighty God, that 
 America may be free from those calamities which 
 have proved how essential MONARCHY is to the 
 enjoyment of constitutional liberty ! " When 
 Burke was commenting upon that message in par 
 liament, and came to that passage, he threw the 
 whole House into a roar of laughter by one of his 
 dashes of ridicule, in which he described the king 
 " in this marvellous exhibition of piety, falling 
 upon his knees to deprecate the awful conse 
 quences likely to result to America from the want 
 of monarchy ;" and he might have added, such a 
 monarch for life as George III. 
 
 Now, I think we are in about the same con 
 dition here, seventy years after that event, touch- 
 
62d day.] 
 
 THE JUDICIARY. 
 
 191 
 
 Wednesday,] 
 
 HALLETT. 
 
 [July 20th. 
 
 ing judicial life tenures. The wisdom and fore 
 sight of pious George III., must be still living 
 among us, when wise men stand up here in the 
 last half of the nineteenth century, and pray 
 Almighty God to save Massachusetts from the 
 awful consequences which will follow, if she does 
 not have a life tenure for her judges ! There is 
 just as much reason and common sense in the one 
 as in the other apprehension, and the progress of 
 the age has already shown just as much truth in 
 these modern fears about the judiciary, as there 
 was in the lamentations of George III., about 
 America and monarchy, and constitutional liberty. 
 Sir, as to this matter of taking our lessons of 
 government from England, or of what England 
 has given us for it seems that there are gentle 
 men here, as well as elsewhere, who think we 
 cannot have anything which England has not 
 given us I say England has given us nothing 
 good that we have not improved, and I say, as to 
 the life tenure of judicial officers, which we de 
 rived from England, there was some reason for it 
 there, where the sole power is in the hands of the 
 king ; but there is no good reason for it here, where 
 the power is in the hands of the people. The 
 courts there, may, by being independent of the 
 king, protect the people, but they would do all 
 that a great deal better, if elected by the people, in 
 spite of the king. With us we want judges to 
 protect the people against the legislature and the 
 executive, and not against the sovereign power. 
 The gentleman for Marshfield, (Mr, Sumner,) 
 said the other day, upon another topic, that Eng 
 land had given us five great institutions, and he 
 went on and enumerated them. One, was the 
 doctrine that the atmosphere of Great Britain 
 could not be breathed by a slave ! England give 
 us that doctrine ? No, Sir. England gave us 
 exactly the opposite doctrine. England gave us 
 slavery, and fastened it upon us. I will tell that 
 gentleman what five institutions England has 
 given to us. 
 
 England gave us religious persecution. Well, I 
 thank her for that, for it planted our colonies. 
 
 England gave us taxation without representation. 
 I thank her for that, for it achieved our indepen 
 dence. 
 
 England gave us insult to the new States, and 
 sought to crush them, by commercial restrictions. 
 I thank her for that, too, for it gave us our 
 glorious UNION. 
 
 England gave us search on the hiyh seas, and 
 impressed our seamen. I thank her for that also, 
 for it forced us into the war for a second indepen 
 dence, a moral, intellectual, commercial and man 
 ufacturing independence, as important as any we 
 had achieved over the mother country. 
 
 Lastly, England gave us the institution of 
 slavery, and for that, I do not thank her. Instead 
 of an atmosphere in which a slave could not 
 breathe, she poisoned the atmosphere of the colo 
 nies, by importing slaves, compelled to breathe it. 
 And, Sir, but for England, with her cupidity and 
 her slave-trade, we never would have had this 
 question raised and agitated here as a discordant 
 element in free institutions. 
 
 Let not the gentleman for Marshfield, (Mr. 
 Sumner,) come here with eulogies upon England 
 and English aristocracy, which are to go back to 
 that country, the great oppressor of labor, to be 
 taken up by those who frequent the house of 
 "My Lady Sutherland," to abuse America, and 
 superciliously thank God they are not like these 
 publicans ! I want no such sympathy from 
 England. These very philanthropic individuals, 
 these high lords and ladies, who take hold of this 
 sore that they think exists under the general Con 
 stitution of our country, do it for what r Not 
 that they love America, but because they would 
 inwardly exult to see anything festering in the 
 heart of America, which they think but, thank 
 God, falsely believe will impair, if not destroy, 
 its free Constitution ; I have no faith in such 
 sympathy from England for America. I look for 
 true sympathy from her masses, her great com 
 moners, and not from her sickly aristocracy. 
 
 Then, Sir, as it regards this question of the life 
 tenure of the judges, which we have derived from 
 England, what do we propose ? Why, we pro 
 pose that we shall no longer follow the principles 
 or practice of England, upon this single question, 
 just as we long ago ceased to follow her doctrine, 
 that the executive office should be held for life. 
 I do not know of an argument in favor of a ju 
 dicial tenure for life, which is not equally strong 
 in favor of an executive tenure for life. Now, 
 Sir, I am not going to England for any such 
 institutions. I will take her common law doc 
 trines, as far as they go, and improve upon them ; 
 but, Sir, I would prevent the judges in this 
 country, whenever I have any power of doing so, 
 from having that sort of independent life tenure 
 which the twelve judges of England had, when, 
 on one occasion, they were used to carry out, for 
 the government, the doctrine of constructive 
 treason. There was a law in England, as there 
 is in this country, that there must be two wit 
 nesses to the same overt act of treason, in order 
 to convict a citizen of that crime. The simplest 
 proposition in the world, because otherwise there 
 is the oath of allegiance in the person charged 
 with the crime on the one side, and the oath of a 
 single man that he has violated it on the other. 
 What did these twelve judges, holding their tenure 
 
192 
 
 THE JUDICIARY. 
 
 [62d day. 
 
 Wednesday,] 
 
 HALLETT DANA. 
 
 [July 20th. 
 
 for life, do ? The king wanted to convict certain 
 subjects of treason, but the law was in his way. 
 The king called together the twelve judges of 
 England, and submitted this proposition to them ; 
 and I ask the attention of the learned professor 
 from Cambridge, (Mr. Greenleaf,) to it: "If J. 
 S. buy a knife to kill the king, and it be proved 
 by one witness that he bought a knife for that 
 purpose, and another comes and proves he bought 
 such a knife, are they two witnesses to one overt 
 act sufficient to prove high-treason ?" And the 
 learned judges all said " yes," in presence of all 
 the king s counsel ! Now tell me not of judicial 
 independence, and judicial impartiality, when it 
 comes in contact with political power in England ! 
 Their Holts, and Scroggs, and their Jeffreys, and 
 Norburys, were judges for life, and the bloodiest 
 annals that stain the pages of history, mark the 
 track of the judicial decisions of English judges 
 of life tenure. 
 
 Those were decisions in the courts of common 
 law, where all the judges are appointed for life. 
 But let us look into the court of chancery, the 
 great equity tribunal of England. Have gentle 
 men thought it worth while to tell us by what 
 tenure the Lord Chancellor holds his office ? No. 
 Did the gentleman from Boston, (Mr. Choate,) 
 ever think of it ? If so, why did he not inform 
 us how long the Lord Chancellor of England 
 holds his office ? Just as long as the ministry 
 themselves, and no longer. He is appointed upon 
 every change of the ministry, and changes with 
 every political change in the administration. And 
 yet, more property rights, and more great ques 
 tions between parties, involving the guardianship 
 of all wards and minors, and the settlement of 
 trust estates, passes through the court of the 
 chancellor, than through all the other courts of 
 England. 
 
 Mr. DANA, for Manchester. If the gentleman 
 will permit me to interrupt him, I wish to say 
 that England has felt the importance of no longer 
 having the Lord Chancellor a political judge, and 
 they have already passed, or are about to pass, a 
 bill to give him a life tenure. 
 
 Mr. HALLETT. They are just about doing 
 that the gentleman informs us, and I inform him 
 that we are just about going the other way. That 
 is just the difference in progress and freedom, be 
 tween the old and the new world. All the old 
 world has gone back to utter despotism. The 
 heel of the tyrant is on every neck in Europe, 
 and England is about to follow in the same course ; 
 and we are asked to retain the life tenure of 
 judges, because England may, possibly, apply it 
 to the only judge she has without it. No, Sir ; 
 that is no argument, but the reverse, for the 
 
 United States of America. "Where is Hungary, 
 and her free Constitution ? Trampled down in 
 the dust of the earth, and trampled down, too, by 
 this dogma of life tenure of kings, and lords, and 
 judges, and other officers and instruments of 
 despotic power. It is time we had done looking 
 in this new world, to the old, for examples to 
 guide us in government. We have good prece 
 dents in our own country, and we need not go to 
 Europe for them. Let us rather take such as we 
 have here, and see how they stand. There are 
 fourteen States in this Union in which the judges 
 are elected by the people ; ten States in which 
 they are appointed ; and but seven States in 
 which they hold a life tenure. And which are 
 those seven States ? New Hampshire, who has 
 never changed her Constitution ; Massachusetts, 
 who is about to change hers, I trust, in this mat 
 ter ; Connecticut, who has not changed hers since 
 1818 ; North Carolina and South Carolina, with 
 their old colonial Constitutions ; Delaware, the 
 least considerable State in the Union ; and Ala 
 bama, in her Constitution of 1819, the only new 
 State that has fallen into this old usage of mo 
 narchical government. In twenty- four States of 
 this Union, there is a limited judicial tenure, 
 averaging in the whole but six years. The four 
 largest States elect their judges Pennsylvania for 
 fifteen years ; New York and Virginia for eight 
 years, and Ohio for five. Massachusetts may 
 safely stand on ten years, where I hope to see it 
 placed, at this time. Now, Sir, is there any 
 danger in following these examples in future 
 appointments of judges ? 
 
 Let me hasten to say, in conclusion for my 
 time is just running out that while I would 
 divest myself of every personal consideration in 
 this matter, all I desire is, that in conformity with 
 every fundamental principle of popular govern 
 ment, the j udges shall be made accountable. Give 
 me accountability for the judges of all our courts 
 to somebody, at some stated time, in some way, 
 and I shall be content. I prefer to begin with 
 the limitation of ten years, but I must take the 
 seven, if it is that or no limitation. The cry of 
 the people everywhere, concerning their judges 
 and rulers is, give us accountability ! 
 
 Sir, accountability is the great moral gravita 
 tion, without which heaven and earth would fall 
 asunder ! Wherever there are human agencies, 
 wherever there are intellectual beings, there must 
 be accountability. Without accountability to his 
 God, man is but a beast ; without accountability 
 to the public will, the ruler is but a despot ; and 
 without accountability to the people, the judge, 
 with his life tenure on the bench, is but a modified 
 tyrant. 
 
62d day.] 
 
 THE JUDICIARY. 
 
 193 
 
 Wednesday,] 
 
 FRENCH. 
 
 [July 20th. 
 
 [Here the hammer fell, at the close of the half 
 hour, as the speaker took his seat.] 
 
 Mr. FRENCH, of New Bedford. Mr. Presi 
 dent : I have been much interested in this discus 
 sion, and from what I have heard, I am satisfied 
 that, since the subject was up before, there has 
 been quite a change of opinion among the mem 
 bers of the Convention. I have no doubt that if 
 this discussion were to continue a little longer, 
 we should have a majority in favor of the amend 
 ment of the gentleman from Worcester ; and if 
 the question could be postponed, and come up a 
 few days later, I presume we should even have a 
 majority in favor of electing judges by the people. 
 Sir, what is the reason of this change of opinion r 
 Since the subject was discussed before, gentlemen 
 have been home to their constituents, and they 
 have come back with new light as to the opinions 
 of the people, upon this subject. If they would rise 
 in their places, and testify what they have seen 
 and heard, many of them would tell us that their 
 constituents have said to them, " Give us an 
 elective judiciary." 
 
 Sir, as I said on a former occasion, I am for a 
 system that shall bring the judges a little more in 
 sympathy with the people. We were told here 
 the other day, by the distinguished member from 
 Boston, (Mr. Choate,) of the purity of the judges 
 of this country, and Lord Mansfield, and the 
 common law of England, were not only alluded 
 to, but eulogized. Sir, have we Mansfields upon 
 the bench of our supreme court ? Have we even 
 apologies for Mansfields there ? If we had, how 
 would human rights stand affected by the change ? 
 It will be remembered, that Lord Mansfield lib 
 erated Somerset, and caused the shackles to fall 
 from the limbs of every slave in Great Britain, 
 against the influence of the government of Eng 
 land, and in favor of the impulses of the people. 
 If we had the common law of England, and 
 Mansfields to administer it, how long should we 
 be compelled to look upon human slavery in this 
 country ? 
 
 There was a case a few days ago in this city, 
 illustrative of this point : A man appeared in 
 this harbor, on board the brig Florence, from 
 Wilmington, N. C., just escaped from the land 
 of whips and chains, panting for liberty, which 
 he had perilled his all, yes, even his life, to obtain, 
 and when he was just about to touch our soil, and 
 was in imminent danger of being seized, and sent 
 back, could his friends obtain from the justices of 
 your supreme court, a writ of habeas corpus to 
 prevent his being returned into slavery, " without 
 due process of law : " No, Sir ; but they took 
 out a writ of habeas corpus from the people, and 
 a writ which put him in possession of his rights. 
 
 13 s 
 
 While the captain, after nailing him up in a 
 box, was looking round after your commissioners, 
 your marshals, and the officers of the govern 
 ment, to seize him and bind him, and carry him 
 back to slavery, he took an appeal to the people. 
 They granted a writ of habeas corpus upon which 
 he was taken ashore, and set at liberty. He is 
 now, I hope, in Queen Victoria s dominions, re 
 joicing, not as the gentleman for Manchester, (Mr. 
 Dana,) said the other day, that he had been tried 1 
 before a court of independent judges as indepen 
 dent and impartial as the lot of humanity will 
 admit. No, Sir ; but that he had obtained a writ 
 of habeas corpus from the people, by virtue- 
 of which, he was beyond the reach of his oppres 
 sors. 
 
 Sir, I regretted exceedingly, to hear it said the 
 other day, by a gentleman in this Convention, 
 the learned gentleman from Cambridge, (Mr. 
 Parker,) in whom so much confidence is re 
 posed, in matters of law, that while the fugitive 
 slave law was upon our statute books, it was the 
 law of the land, and it must be obeyed. Oh ! 
 how it thrilled through my bosom. Where i 
 the man in this Convention, who, if he had stood 
 xipon the shores of our harbor when that poor 
 panting fugitive landed, to whom I have referred, 
 if the officers of your government had been there, 
 ready, but unable to subdue him, and called upon 
 him to assist in seizir.g him, would have done it? 
 
 Sir, 1 put it to every gentleman in this Con 
 vention ; the gentleman from Cambridge, and the 
 gentleman for Wilbraham, in particular : would 
 you have assisted the marshal, had he needed, 
 and commanded your services, to have dragged 
 that fugitive before a ten- dollar commissioner, 
 (Mr. Curtis,) who would have doomed him to 
 the chains of slavery : " one hour of which, t> 
 fraught with more misery than ages of that which 
 our fathers rose in rebellion to oppose" I ask any 
 man who believes in the doctrine that a law must 
 be observed, because it is spread out upon your 
 statute book, whether he would have helped to 
 have sent that man back to slavery ? Will any 
 man rise in his place and say, yes ? I pause for a 
 reply. No, Sir ; no one will do that, because that- 
 man is not in this Convention, and I thank God 
 that he is not. 
 
 Now, Sir, I have not a word to say against the 
 judges of our supreme court. I do not believe, 
 as I was represented by the gentleman for Wil 
 braham, to intimate, the other day, that judges of 
 the supreme court should violate their oaths. I 
 do not wish to elect judges who will violate their 
 oaths. Oh no, Sir ; but I do want to elect judge* 
 who shall be near enough to the people, to re 
 member, and realize, too, that men have 
 
194 
 
 THE JUDICIARY. 
 
 [62d day. 
 
 Wednesday,] 
 
 FRENCH. 
 
 [July 20th. 
 
 able rights, and who, when a man conies before 
 them, and applies for his liberty when he comes 
 and asks for his rights, to which he is entitled 
 under the Declaration of Independence, the Con 
 stitution of the United States, and the Bill of 
 Rights, and laws of the Commonwealth of Mas 
 sachusetts will grant them to him, and not turn 
 their backs upon him, without making any reply. 
 I want supreme judges who can remember that 
 the Constitution of the United States, says this: 
 
 "No person held to service or labor in one 
 State, under the laws thereof, escaping into an 
 other, shall in consequence of any law, or regu 
 lation therein, be discharged from such service or 
 labor, but shall be delivered up, on claim of the 
 party to whom such service or labor shall be due." 
 
 No person shall be "deprived of life, liberty, or 
 property, without due process of law." Which 
 means trial by jury. And, farther : 
 
 " In suits at common law, where the value in 
 controversy shall exceed twenty dollars, the right 
 of trial by jury shall be preserved." 
 
 I want them to remember that before such per- 
 ecm can be sent back into slavery, it must be shown 
 that such service or labor was due to the party 
 claiming it, under the laws of the State from which 
 he comes. Here, is where I claim the Constitu 
 tion of the United States is violated in its most 
 essential provision. I want it to be shown, that 
 the service or labor of a slave, is due to the party 
 claiming him, by the laws of the State from 
 whence he has escaped. It cannot be done. There 
 is not a single State in the Union that has upon 
 its statute book a law making any man or woman 
 a slave. And when they come to the State of 
 Massachusetts and claim the right to take a man 
 from our soil, they must first show, according to 
 the Constitution of the United States, that he 
 owes service or labor, under the law of the State 
 from whence he has escaped. This must be done, 
 too, by " due process of law." No grab game, 
 No snap- judgment. They know they cannot 
 show it; and, therefore, it is that your odious, 
 abominable, detestable, unrighteous, inhuman, 
 heathenish, barbarous, heaven -daring, man-de 
 basing, woman-kill ng, demon- pleasing, uncon 
 stitutional fugitive slave law was made, [laughter,] 
 which is no law, and should be trampled un 
 der foot by every freeman in the land. Lord 
 Brougham has said : 
 
 " There is a law above all the enactments of 
 human codes, the same throughout the world ; 
 the same in all times ; such as it was before the 
 daring genius of Columbus pierced the night of 
 ages, and opened to one world the sources of 
 power, wealth, and knowledge, and to another 
 
 all unutterable woes ; and such as it is this day. 
 It is the law written by the finger of God on 
 the heart of man ; and by that law, unchangea 
 ble and eternal, while men despise fraud, and 
 loathe rapine, and abhor blood, they shall reject 
 with indignation the wild and guilty fantasy that 
 man can hold property in man." 
 
 Sir, when congress passed that law, those men 
 who voted for it knew it would be no law. They 
 knew it was in violation of the Constitution of 
 the United States. They knew all this. Will 
 any man stand up here and deny it ? Why did 
 they make it at all ? Because they the slavehold 
 ersknew they could not come to Massachusetts, 
 and other free States, and take a fugitive slave 
 under constitutional law, for constitutional law 
 required them, in the first place, to show that 
 the fugitive owed service or labor, under the law 
 of the State from whence he had escaped, and 
 they could not show that, because no State has 
 enacted any such law. Therefore it became neces 
 sary to pass a law in violation of the Constitu 
 tion of the United States, in order to allow them 
 to come North and take up fugitives, and carry 
 them back to slavery. It could only be done in 
 violation of the Constitution of the United States, 
 in violation of the Bill of Rights, and of the Con 
 stitution of the Commonwealth of Massachusetts, 
 and of every free State in the Union. 
 
 Sir, how was it in the case of Sims? The 
 learned gentleman for Manchester tells us he was 
 one of his (Sims ) counsel in that case. The 
 Constitution of the United States and the laws of 
 this Commonwealth were disregarded entirely. 
 
 A member (interrupting) here asked what was 
 the question before the Convention. [Laughter.] 
 
 The President said it was upon the amendment 
 of the gentleman from Worcester. 
 
 Mr. FRENCH, (resuming). And the gentle 
 man for Manchester remarked, although he lost 
 that case, yet he rejoiced that it was brought be 
 fore a court of independent judges as indepen 
 dent and impartial as the " lot of humanity would 
 admit." Now, I ask that gentleman, supposing 
 he were to change sides for a moment, and Sims 
 were the lawyer, and the learned gentleman 
 for Manchester the client, would his rejoicing, 
 think you, have been the same ? If it would, 
 then when he arrived upon the rice plantation, 
 down in Georgia, he would have lifted up his 
 prayer, morning and evening, thanking God that 
 although he was condemned to slavery, he had 
 been fairly tried and condemned by a judge who 
 was as independent and impartial as the " lot of 
 humanity would admit." [Great laughter.] If 
 he would have done that, he would certainly 
 have exhibited more of the Christian spirit than 
 
62d day.] 
 
 THE JUDICIARY. 
 
 195 
 
 Wednesday,] 
 
 FRENCH. 
 
 [July 20th. 
 
 it has been my lot to fall in with yet. No, Sir ; 
 I tell you he would have offered up an entirely 
 different prayer. If he had had any thanksgiv 
 ings to render up, they would have been of an 
 entirely different character. I think he would 
 have been apt to have repeated the 109th Psalm 
 and 8th verse : " Let his days be few, and let 
 another take his office." 
 
 Sir, there is not a man in this Convention to 
 day who can deny that Sims was not entitled to 
 the same privileges of life and liberty that we 
 are. 
 
 A poor trembling fugitive came to my door the 
 other day, having been five long weeks under 
 the forecastle floor of a schooner, in close con 
 finement, in coming from that land of sighs and 
 groans ; and while the gentleman for Manchester 
 was offering up his thanksgiving for independent 
 judges, and praying that they might continue to 
 be appointed for life, instead of appealing to them, 
 that same writ of habeas corpus was applied for 
 and issued by the people, who took him safely 
 off, and he is now, I trust, in Canada. 
 
 Who does not rejoice at it ? Does any one wish 
 to help catch him r The aforesaid fugitive slave 
 law must be enforced, must it ? I desire to bring 
 the case nearer home. The way to test a princi 
 ple and gentlemen s professions here is to take an 
 extreme case. While I am speaking, for instance, 
 suppose a poor fugitive woman, with her little 
 one in her arms, enters yonder door, rushes down 
 that aisle, and undertakes to crawl in behind your 
 chair, Mr. President, for protection, followed by 
 her husband, and at the other door in come the 
 officers of the law in pursuit. The marshal of 
 the United States, with his insignia indicating his 
 office, comes down near your desk, while the 
 husband of the poor woman stands between her 
 and that officer. You all sit here, and of course, 
 I stop speaking, while that husband stands up in 
 all his manhood, and says to the officer and posse, 
 thus far you shall come, and no farther, upon 
 your peril ; and he produces his weapons of de 
 fence, which convinces the officer that he is too 
 much for him. The officer calls upon you, gen 
 tlemen, in this Convention, by virtue of, and in 
 obedience to the fugitive slave law, in the name 
 of the United States of America, to assist him in 
 seizing, binding these fugitives, and taking them 
 before a commissioner. Would you do it ? That 
 is the question. No ! not a man here would lift 
 his hand to assist that officer, notwithstanding that 
 aforesaid fugitive slave law commands all good 
 citizens to assist in its execution. Then away with 
 the idea that whilst it is upon the statute book, 
 it must be obeyed and enforced. Spit upon it 
 trample upon it, rather than obey and enforce it 
 
 The attempt never would have been made to exe 
 cute the law in Massachusetts, had it not been for 
 a particular political purpose, and I do not believe 
 it will be attempted again very soon by the au 
 thorities of the city of Boston, or if attempted, 
 that it will be backed up by a corps of fifteen 
 hundred of her most wealthy and influential 
 merchants. 
 
 I wish to say one word more in reply to what 
 was said of Lord Mansfield. He struck the fet 
 ters from every slave in Great Britain, and all we 
 want here is judges like Mansfield. Had we one 
 or two Mansfields on the bench of the supreme 
 court of the United States, then, when men 
 brought their fugitive slave cases before that court, 
 they would set the slaves free. I remember 
 reading that there was a judge once, who, the 
 first time the question was brought before him, 
 set the slave free, and with him every slave in 
 this Commonwealth. He was a little nearer the 
 pattern of Lord Mansfield than any judge you 
 find now a days. There was a judge in Vermont, 
 who, when a similar case was brought before 
 him, required a bill of sale from the court of 
 Heaven, to prove one man s title to another. 
 Although we did take our common law from 
 England, and with it our slavery, still let me say 
 to gentlemen that England has set us a glorious 
 example in the application of that law, by the 
 manumission of her slaves, worthy of our swift 
 est imitation, and the imitation of every republic 
 and government on earth. It makes me feel sad 
 for my country to hear men talk about liberty, 
 while I remember that there are so many millions 
 of poor creatures in slavery down South. Gen 
 tlemen can sympathize with Hungary, but they 
 cannot sympathize with three and a half millions of 
 human beings, crushed in slavery at home, denied 
 the privilege of the marriage institution, worked 
 without pay, scourged without mercy, sold upon 
 the auction-block, maimed with impunity, and 
 thousands of them hunted with blood-hounds, 
 and shot as outlaws. Every-body admits that 
 slaves are human beings. How long shall these 
 things continue ? 
 
 In discussing this question the other day, the 
 gentleman from Boston, (Mr. Choate,) in regard 
 to the matter of the great expense of collecting 
 debts, and let me here say that I thank the gen 
 tleman for his kindness, used this language: 
 " I would recommend the gentleman from New 
 Bedford to advise his friend to change his law 
 yer." I knew a man once to do that, and he not 
 only had to pay the new one for doing the busi 
 ness, but he had to pay the old one to keep him 
 still. [Laughter.] The gentleman said that 
 business would be delayed, because there would 
 
196 
 
 THE JUDICIARY, &c. 
 
 [62d day. 
 
 Wednesday,] 
 
 FRENCH CUSHMAN HOOPEB. 
 
 [July 20th. 
 
 not be judges enough to do the business. I hap 
 pened to step into the police court room, in this 
 city, the other morning, to see a gentleman I was 
 told could be found there, and while waiting, the 
 justice disposed of some twenty cases in about as 
 many minutes. And this was all done by a 
 single police judge. 
 
 What a great blessing it would be, when cases 
 come into the court of common pleas, and the 
 supreme court, if they were put through the same 
 or even with appropriate speed. It seems to me if 
 judges wereelected by the people, that there would 
 be more promptness and dispatch in the decision 
 of cases, because the people would demand that 
 such should be the order of things. In that case, 
 there would be no two or three years delay to 
 find out whether a man s fence was two or three 
 feet over the line of another man s ground or 
 swamp pasture, which was not worth two dol 
 lars an acre, the decision of which would cost 
 hundreds of dollars. [Laughter.] 
 
 I am in favor of the amendment of the gentle 
 man from Worcester, (Mr. Knowlton,) because 
 as the gentleman from Lowell, (Mr. Butler,) said, 
 it is tetter than anything now before us. I will 
 take it as far as it goes. I wish it was one or 
 two stages farther off, because by the time it 
 came to its final passage, I think that we might 
 get a vote for electing judges by the people. I 
 support this amendment, because if nominations 
 have to go before the Senate, our governors would 
 be a little careful to make the very best nomina 
 tions, with some other recommendations beside 
 the fact that they were " live, young, and active 
 Whigs." If the governor had to nominate them 
 to the Senate, he would endeavor, I think, to 
 select men who have character, standing, and 
 something else besides ability to serve party pur 
 poses. When this question is taken, I feel per 
 fectly confident, and I earnestly desire that this 
 amendment will prevail. 
 
 The usual hour of adjournment having arrived, 
 Mr. French gave way, and on motion, the Con 
 vention adjourned until three o clock, P. M. 
 
 AFTERNOON SESSION. 
 The Convention reassembled at three o clock. 
 
 Leave of Absence. 
 
 Leave of absence was granted to Mr. Morton, 
 of Tisbury, for the remainder of the session. 
 
 Justices of the Peace. 
 
 Mr. CUSHMAN, of Bernardston, offered the 
 following substitute for the first resolve reported 
 by the Committee on the subject of Justices of 
 
 the Peace, which, on his motion, was laid on the 
 table and ordered to be printed. 
 
 Resolved, That it is expedient to amend the 
 Constitution as follows : 
 
 There shall be two classes of Justices of the 
 Peace, vi/. : 
 
 1st. Trial Justices, who shall be elected by the 
 legal voters of the several towns for a term of 
 three years. There shall be one in each town, 
 and one additional for every two thousand inhab 
 itants. They shall have the same jurisdiction, 
 powers and duties that are now exercised by 
 justices of the peace, justices of the quorum, and 
 commissioners to qualify civil officers ; and such 
 other powers as may be given them by the legis 
 lature. 
 
 2d. Justices of the Peace, who shall be ap 
 pointed by the Governor and Council for a term of 
 seven years ; and those who now hold that office 
 shall continue as such, according to the tenure of 
 their respective commissions : provided, that the 
 jurisdiction of justices of the peace shall extend 
 only to the acknowledgment of deeds ; the ad 
 ministration of oaths ; the issuing of subpoenas, 
 and solemnization of marriages. 
 
 3d. The offices of Justices of the Quorum, 
 and Commissioners to qualify civil officers, are 
 hereby abolished. 
 
 The Judiciary. 
 
 The Convention renewed the consideration of 
 the unfinished business of the morning, viz. : the 
 resolves on the subject of the Judiciary, the pend 
 ing question being on the amendment moved by 
 the gentleman from Worcester, (Mr. Knowlton). 
 
 Mr. HOOPER, of Fall River. I move to 
 amend the proposition before you, by striking 
 out all after the word " Constitution," in the 
 first line, and inserting the following : 
 
 Resolved, That it is expedient so to revise the 
 Constitution that all vacancies occasioned by 
 death, resignation, or other cause, among the 
 judges of the supreme judicial court, shall be 
 filled by an election at large throughout the State, 
 
 for a term of years, so arranged that two 
 
 shall not be elected at the same time for the same 
 term of years. 
 
 Resolved, That it is expedient so to revise the 
 Constitution as to require that provision shall be 
 made, by law, for the election of all the judges 
 and justices of inferior courts, in districts, for a 
 term of years ; and that so long as the court of 
 common pleas shall continue as at present consti 
 tuted, the judges thereof shall be elected in dis 
 tricts for a term of years, so arranged that 
 
 only one shall be elected in any one year, unless 
 it shall be to fill a vacancy in an unexpired term, 
 and the judge whose term of service is first to 
 expire, shall be the chief justice of said court, 
 till such expiration, so that each shall in turn be, 
 successively, the chief justice. 
 
 Mr. HOOPER. The effect of this proposition 
 
62d day.] 
 
 THE JUDICIARY. 
 
 197 
 
 Wednesday,] 
 
 HOOPER. 
 
 [July 20th. 
 
 is to fill the vacancies upon the bench by election, 
 instead of by appointment. The object of it is, 
 first: not to disturb the present tenure. It does 
 not meddle with the court as now constituted, 
 but it enables you to glide into an elective sys 
 tem without any shock or disturbance of those 
 who are at present there. The term for which 
 they are to be elected is left blank, that it may be 
 filled afterwards. The object is simply to present 
 the question whether we will have an elective or 
 an appointed judiciary. 
 
 I do not propose to discuss this question at any 
 length, because it seems to me that all that has 
 been said in favor of a limited tenure goes in favor 
 of an elective judiciary ; and I appeal to gentle 
 men who are responsible for the result of this 
 Convention, whether it will not be better for 
 them, and safer, to put this question of an elect 
 ive judiciary to the people, than simply to propose 
 a half-way measure of limiting the tenure. The 
 gentleman from Taunton, (Mr. Morton,) the 
 other day, in arguing this matter, put the ques 
 tion to us whether, if we had a house to construct, 
 if we had not better employ an architect ; or a 
 house to build, if we had not better employ a 
 carpenter ; or any other piece of work we wanted 
 done, we had not better employ some one who 
 had served an apprenticeship to his business, and 
 understood it, rather than undertake to do it our 
 selves. I suppose he applied that to the appoint 
 ing power. But, I would like to ask, when did 
 the appointing power ever serve an apprenticeship 
 in appointing ? Are not the people as capable of 
 selecting the judge as the governor can be, who 
 but yesterday was one of them ? It would seem 
 that the gentleman supposed that the governor 
 had some talent, or skill, which other people 
 could not exercise in the selection of these officers. 
 When, or where did he serve his apprenticeship, 
 or where did he get his patent that confers upon 
 him such superior qualifications for the business ? 
 The gentleman for Manchester, (Mr. Dana,) has 
 asked us why we do not put out the questions 
 we were sent here to put out to the people, and 
 let other things .alone ? I was not aware that the 
 question of plurality was one that we were sent 
 here to put out, any more than this. The very 
 document to which the gentleman has alluded, 
 expressly leaves this matter for the Convention 
 to do as they please. The Committee who drew 
 up that document say, expressly, they leave it for 
 the discretion of the Convention which is to as- 
 eeinble. Therefore it is supposed that the decis 
 ion of this question of an elective judiciary is im 
 posed upon us by the very terms of the document 
 in question, and this is one of the issues on which 
 we are sent here to act. 
 
 Now, the argument in favor of appointing for 
 a limited term, instead of electing the judges, is, 
 to my mind, an argument which is wholly in the 
 other direction. If a judge hopes to be reflected, 
 he would be very likely to devote himself to his 
 duties ; and if he is learned and impartial, he can 
 rely with great certainty on a reelection. Such 
 a man, in opposition to a man of whom the peo 
 ple know but little, would have an incomparable 
 advantage, and would succeed in nine cases out 
 of ten. But what would be the effect in case the 
 judges are appointed r Suppose a term is about 
 to expire, and here is a man in the office who 
 combines in his character all the requisites of a 
 good judge learned, courteous, able, and impar 
 tial but a political contest ensues, and some am 
 bitious young gentleman, perhaps, gets his eye 
 upon that judge s place, and becomes all at once 
 very patriotic, and attends all the primary meet 
 ings is sent as a delegate to the State Conven 
 tion, and manages to get his friend nominated for 
 a governor; and then, by great exertion, and 
 spending time and money, succeeds in getting his 
 friend elected for governor. Then how will the 
 case stand ? He demands the place of the judge 
 whose term expires. The judge happens to be 
 long to another party, and, although he is impar 
 tial as a man can be, or as any man in the com 
 munity, and has given good satisfaction, would 
 you often find a man in the place of that governor 
 who would resist the claim of the man who had 
 put him in his position r I fear not, Sir. It 
 would be demanded of the governor as the price 
 of his office ; and few, under such circumstances, 
 would have the independence and manliness to 
 refuse such a claim. Whereas, if the judge held 
 his seat by the voice of the people, there would 
 be no question how they would decide, when the 
 matter should be referred to them. They would 
 retain the man whom they knew to be able and 
 impartial, in preference to one of whom they 
 knew little or nothing. And, for this reason, I 
 am in favor of making the office elective, instead 
 of continuing it by appointment for a term of 
 years ; and I hope this Convention will come to 
 this conclusion. 
 
 I offer this amendment, because I have been 
 solicited to do it by a number of gentlemen, who 
 stated that they voted against it when the propo 
 sition was up before, and who desire to change 
 their vote. If this Convention are wise, in my 
 opinion they will adopt this measure, and give 
 it to the people. It is a proposition which I be 
 lieve the people will hail with acclamation. I 
 believe they will give to it a more hearty support 
 than to any other proposition which we shall put 
 to them. I maintain that no such proposition 
 
198 
 
 THE JUDICIARY. 
 
 [62d day. 
 
 Wednesday,] 
 
 FHENCII. 
 
 [July 20th, 
 
 has ever been put to the people of any State, 
 which was rejected by them. To be sure it was 
 not adopted in New Hampshire, because a two- 
 thirds vote was required ; but it received a large 
 majority of the votes, and more than any other 
 proposition submitted to them. Such a proposi 
 tion has never been rejected by a majority of the 
 people of any State, and I hope it never will be. 
 I hope this will be accepted. 
 
 [Mr. French, of New Bedford, who was inter 
 rupted by the adjournment of the morning 
 session, now took the floor and concluded his re 
 marks.] 
 
 Mr. FRENCH, of New Bedford. I have 
 been significantly reminded that it is not dem 
 ocratic, and I know it is rather startling to 
 many persons, when the idea is advanced that 
 law is to be disregarded. Therefore, I beg leave 
 to reply to that insinuation here. The gentleman 
 for Wilbraham (Mr. Hallett) told us the laws of 
 the United States were the supreme laws of the 
 land. I agree with him that they are so, but 
 only when those laws are in accordance with the 
 Constitution of the United States. In regard to 
 the law to which the gentleman for Wilbraham 
 referred upon a former occasion, I wish to intro 
 duce a little proof of its unconstitutionally 
 that it is no law, and should not be regarded as 
 such, and cannot be, to much extent, enforced. 
 It was the opinion of John C. Calhoun, that 
 great statesman from the Palmetto State, that the 
 fugitive slave law was unconstitutional ; and such 
 was the opinion of Honorable Mr. Khett, his 
 successor, who pronounced upon the floor of the 
 United States Senate, these remarkable words : 
 
 " This government has it not in its power to 
 enforce this law, so as to make it eflicacious. I 
 believe that by the action of States alone the 
 rights of the South can be maintained and en 
 forced." Again he says: "The delivery of a 
 fugitive from labor is an affair between two States. 
 The fugitive is to be delivered up. To be de 
 livered up, he must be seized. He must be in 
 the possession of those who are to deliver him 
 up. No authority within a State can seize a 
 criminal against the laws of any other State, but 
 the authority of the State itself to which he has 
 fled. This is the law of the nations. Look at 
 the CONSTITUTION. Is there one word in it re 
 ferring to fugitive criminals and fugitive slaves, 
 conferring any power on congress to legislate 
 upon these subjects ? No power whatever is 
 given to congress ; congress is not mentioned in 
 that connection. What is the inevitable infer 
 ence? Why, that congress has 110 such power." 
 
 I regret that my learned friend for Wilbraham, 
 (Mr. Hallett,) is not in his seat, that he might 
 put me right if I have wrongly quoted these dis 
 
 tinguished gentlemen. I will go as far as any man 
 for maintaining law ; but it comes with a very 
 ill grace from the gentleman for Wilbraham to 
 talk to us, and give us lessons upon this subject, 
 after what he has said upon the very point in 
 question. It will be remembered that about a 
 year ago, there was a certain convention held in 
 Baltimore, arid that a certain gentleman went 
 down there from the State of Massachusetts, who 
 participated in that convention. In laying down 
 their national platform in that conventior , they 
 laid down and asserted the old resolves of 1798 the 
 resolves of Madison and Jefferson. The gentle 
 man for Wilbraham claims to be a Jefferaonum 
 Democrat, and so do I ; and I wish he was here 
 to explain and show how he stands upon this 
 matter. 
 
 It is well known that these resolutions, which 
 declared certain statutes to be no laws, were in 
 corporated, in 1852, as a part of the Democratic 
 platform. I believe that if those resolutions had 
 been read at the time, they would never have 
 formed a part of that platform. I beg leave to 
 read one or two extracts from those drawn up by 
 Thomas Jefferson, which are very short : 
 
 [From Resolve the First.] 
 " Wheresoever the general government as 
 sumes undelegated power, its acts are unauthori- 
 tative, void, and of no force ; that to this com 
 pact each State acceded as a State, and as an 
 integral party ; that this government, created by 
 this compact, was not made the exclusive or final 
 judge of the extent of the powers delegated to 
 itself; since that would have made its discretion, 
 and not the Constitution, the measure of its 
 powers ; but that, as in all other cases of compact 
 among parties having no common judge, each 
 party has an equal right to judge for itself, as well 
 of infractions as of the mode and measure of 
 redress." 
 
 [From the Second Resolve.] 
 
 " The same act of congress passed on the 14th 
 day of July, 1798, and entitled An act in addi 
 tion to the act entitled an act for the punishment 
 of certain crimes against the United States ; as 
 also the act passed by them on the 27th day of 
 June, 1798, entitled An act to punish frauds 
 committed on the bank of the United States ; 
 and all other their acts which assume to create, 
 define, or punish crimes other than those enumer 
 ated in the Constitution, are altogether void, and 
 of no force, and that the power to create, define, 
 and punish such other crimes is reserved, and of 
 right appertains, solely and exclusively, to the 
 respective States, each within its own territory." 
 
 [From Resolve the Third.] 
 "That, therefore, the act of congress of the 
 United States, passed on the 14th of July, 1798, 
 entitled An act in addition to the act entitled 
 
62d day.] 
 
 THE JUDICIARY. 
 
 199 
 
 Wednesday,] 
 
 FRENCH GILES. 
 
 [July 20th. 
 
 An act for the punishment of certain crimes 
 against the United States, which does abridge 
 the freedom of the press, is not law, but is alto 
 gether void, and of no effect. 1 
 
 [From Resolve the Fourth.] 
 
 "The act of congress of the United States, 
 passed the 22d day of June, 1798, entitled, An 
 act concerning aliens, which assumes power 
 over alien friends not delegated by the Constitu 
 tion, is not law, but is altogether void, and of no 
 force." 
 
 [From Resolve the Ninth.] 
 " The Commonwealth is determined, as it doubts 
 not its co- States are, not tamely to submit to un- 
 delegated, and, consequently, unlimited powers, 
 in no man, or body of men, on earth." 
 
 That is the doctrine of the gentleman for Wil- 
 braham, as put forth at the Democratic Conven 
 tion iu Baltimore, in 1852. Now, I sumbit 
 whether it becomes the gentleman to read us lec 
 tures, because we are opposed to the fugitive slave 
 law, and because, as there is not a particle of 
 authority given to congress to pass it, we say it is 
 void, and of no effect. 
 
 The gentleman, in the course of the discussion, 
 made an allusion to Hungary. When that Demo 
 crat of all Democrats, Kossuth, was here, he made 
 a short tour in the South ; and while there, it 
 may be well supposed, that the question came up 
 about the application of his doctrines to the pecu 
 liar institution. Upon one occasion, when two 
 gentlemen were discussing the matter, one says to 
 the other : " What shall we do with Kossuth ? 
 The doctrine he puts forth is in direct opposition 
 to the peculiar institution, and, if carried out, 
 would give liberty to every slave in the South." 
 The reply was : " It s no use talking about it we 
 must go in for liberty in Hungary." 
 
 It is very convenient for some gentlemen to go 
 for liberty in Hungary, but not so convenient to 
 go for it nearer home. An attempt has been 
 made to carry out this fugitive slave law in 
 various places, but it has been trampled under 
 foot ; and I shall continue to rejoice so long as 
 such is the fact. How was it at Syracuse, in the 
 State of New York? The officers of the United 
 States government did not dare to put their hands 
 upon the man who rescued Jerry. It was there, 
 that Gerrit Smith said to the officers of the law : 
 I am the man who rescued Jerry. I am account 
 able. Let the sledge-hammer of your fugitive 
 slave law fall upon me as soon as you please. He 
 remained in Syracuse three long days, to give 
 them time to deliberate as to what course they 
 should pursue. The officers of the general gov 
 ernment in the Empire State, did not dare to put 
 their hands upon Gerrit Smith, although he stood 
 
 up and boldly told them to their faces : " I rescued 
 Jerry, I am responsible, execute your law as soon 
 as you please." Thank God, that man is elected 
 to congress, and he will stand up there like a 
 man, in the face of this slave- holding nation, and 
 preach truth which will make many a man free. 
 What has he said : He has declared that there 
 is not a single slave in his chains at the South, 
 that has not a perfect God- given right to liberty, 
 and advised all the slaves in this republic to take 
 it immediately. So much for the constitution 
 ality of the fugitive slave law, and the ability 
 of the government to enforce it. Mr. Rhett was 
 a truer prophet than the Massachusetts senator, 
 Mr. Webster. 
 
 One word in relation to the amendment of the 
 gentleman from Fall River, (Mr. Hooper,) just 
 now read, which provides for electing judges by 
 the people. 
 
 I can most cheerfully give it my support, and 
 hope it may find favor, and be adopted, confident, 
 Sir, that the tendency of such a provision in the 
 Constitution will be appreciated by the people, 
 and be calculated to improve our judiciary sys 
 tem. 
 
 Let our judges be elected by the people, and 
 you will never be told that they crawl under 
 chains to reach their benches, or turn their backs 
 upon an application for a writ of habeas corpus in 
 behalf of a poor colored man, equally with us en 
 titled to life and liberty, who shall be kidnapped 
 in the streets of Boston, locked up in an upper 
 chamber of your chained-up court house, guarded 
 by fifteen hundred wealthy merchants, " gentle 
 men of property and standing," finally, in the 
 "gray of the morning," marched in a hollow 
 square of the armed police of this city, over the 
 very spot, of revolutionary memory, which was 
 moistened by the blood of Attucks, and put on 
 board brig " Acorn," bound South, whilst the 
 soldiery shall be sleeping upon their arms in 
 Faneuil Hall. 
 
 Mr. GILES, of Boston. I wish to speak about 
 ten minutes on this subject, in justification of the 
 vote which I shall give, as the yeas and nays 
 have been ordered upon it. I wish my friend 
 from Worcester would modify his resolution by 
 leaving out the number seven, and let us take 
 the question upon the simple idea of a limited 
 term. If that be carried, we can put in such a 
 term as the Convention please. I think there are 
 many who would vote for the proposition to 
 limit the term to seven years ; but I should like 
 the privilege of voting simply upon the question 
 of a limited term. The proposition has been dis 
 cussed in reference to two things : the first an 
 elective judiciary, and the second a judiciary for 
 
200 
 
 THE JUDICIARY. 
 
 [62d day. 
 
 Wednesday,] 
 
 GILES. 
 
 [July 20th. 
 
 a limited term. I am opposed to an elective 
 judiciary system, but not because the people are 
 not competent to elect a good bench. I believe 
 they are. And I am not opposed to it because 
 it has not precedent in its favor. It has prece 
 dent, and American precedent, and Massachusetts 
 precedent. The first court that we had was 
 elective. I have here " The coppie of the liber- 
 ties of the Massachusetts Coloiiie in New Eng 
 land," and this was the first code of laws ever 
 established in New England ; and by that code 
 the court was an elective court, and that annual 
 ly. There are two simple provisions relating to 
 
 it 
 
 The fiftieth article is as follows : 
 
 "All Jurors shall be chosen continuallie by 
 the freemen of the Townes where they dwell." 
 
 There you have part of your court. The fifty- 
 first article is this : 
 
 " All associates selected at any time to Assist 
 the Assistants in Interior Courts, shall be nomi 
 nated by the Townes belonging to that Court, by 
 orderly agreement among themselves." 
 
 And, by the Colony Charter of 1628, these 
 assistants who were to be assisted, were chosen 
 annually, by the freemen, according to the fun 
 damental law of the Colony. Therefore, we 
 began, here in Massachusetts, with an elective 
 judiciary, elected by the freemen annually, in 
 cluding jurors and judges. That was tried, and 
 they abandoned it, and the court appointed by 
 the executive, was substituted in its stead. 
 
 Now there are two practical objections to elect 
 ing judges, which are decisive in my judgment : 
 First, it is not enough that a judge should be a 
 great lawyer ; it is not enough that he should be 
 uniformly and universally known to the people, 
 but he must have a mind and a body constituted 
 for judicial duty ; and that body and that mind 
 are personal, and generally known to the public 
 only to a limited extent, and to be found out by 
 the executive on inquiry. I have always under 
 stood, that the greatest lawyer we ever had in 
 this country, now among the honored dead, ever 
 discouraged the wish of some to place him upon 
 the bench, though it were the highest office of 
 that character in the Union, because, although 
 every-body conceded that he understood the Con 
 stitution of the country better than any other 
 man in it, and he had earned the reputation of 
 the " Defender of the Constitution ;" yet he said 
 he knew the constitution of his own body and 
 mind too well to accept that station. And the 
 greatest living lawyer we have among us, his 
 friend and successor, who has electrified this body 
 
 with his eloquence, and carried everything before 
 him except truth, that nobody can overcome, 
 knows himself too well ever to accept a seat upon 
 the bench. 
 
 Then, I say, that for a good judge, something 
 more is required than popularity, and extended 
 fame, and great legal attainments, and great pow 
 ers of eloquence in the advocacy of a cause ; and 
 that something more must be found out by one 
 man, whose duty it is to inquire and ask advice 
 of his Council. 
 
 If we look to the character of a judge, I know 
 of no place where it is better described than in 
 the Book of Moses, who was the first and the 
 greatest judge whose name is recorded in history. 
 Jethro, his father-in-law, advised him to select 
 men to help him to judge the causes of the 
 people, because it was too hard for him, and he 
 advised him to select men who feared God, men 
 of truth, men who hated covetousness ; and 
 Moses did select able men, known to all the 
 tribes ; and he made a court, whose decisions, so 
 far as they are on record, are good authority to 
 this day, notwithstanding the fling at the Con 
 necticut Blue Laws. I have those laws, and the 
 fling is unjustifiable ; for they founded a court 
 who obeyed the laws, and in default of there be 
 ing any statute law, they were bound by the law 
 of Moses and the Word of God. That is good 
 doctrine now. 
 
 But, Sir, there is another reason, equally as 
 decisive to my mind, upon this question, as it 
 was on another, a short time ago. I do not wish 
 to put the election of the judges to the people, to 
 have them voted for or against ; I do not wish 
 the people to take sides for or against a judge. 
 The gentleman to whom I have alluded, set forth 
 graphically and truly the effect of popular elec 
 tions upon the bench and the bar, and said that 
 it would subject the bench to suspicion, that it 
 would incite the bar to opposition, and that jus 
 tice would suffer in her sworn temples, among 
 her sworn officers. But, Sir, he did not, as I 
 expected and hoped he would, go farther, and 
 say that it would demoralize the people in regard 
 to the bench, and divide them in reference to 
 their own bench. I would never put the election, 
 of the judge to the people in such a way that 
 they should say, I am for him, and I am against 
 him. Never; for a reason that I will state 
 directly. 
 
 What is the danger to our judicial system, that 
 calls for any action ? I admit, with my friends, 
 that our court is a good one. Who can read 
 Judge Kent s Treatise upon the Judicial System 
 of England and of America, and not feel grateful 
 to his Maker for the institution that has put so 
 
62d day.] 
 
 THE JUDICIARY. 
 
 201 
 
 "Wednesday,] 
 
 GILES HOOPER. 
 
 [July 20th. 
 
 much of human reason into law, and so much of 
 human conscience into judicial decisions? No 
 one. There is no tribunal so well deserving of 
 the admiration of any man who is a friend of hu 
 manity, and who is a part of humanity, as our 
 judicial system ; and the strongest argument 
 against any change is, that our court, as now 
 constituted, is good enough. Let well enough 
 alone. But there is a danger, and that danger I 
 wish to avert. If the court is good, and if the 
 danger is great, I am ready to vote for the limited 
 tenure, which is proposed by my friend. 
 
 Sir, the tenure of our judiciary at this moment, 
 in Massachusetts, in this land of liberty, is a free 
 hold. Yes, Sir ; a freehold at common law, be 
 cause it is during good behavior, of uncertain 
 length and breadth a freehold, a base freehold, 
 I grant you, Sir compared with certain titles to 
 real estate, but still a freehold. Now, Sir, look 
 at the judicial history of this country, at this 
 moment, and what is it ? You see the people 
 going from one extreme to the other going from 
 an appointive judiciary, with a life office, a free 
 hold office, to an elective judiciary, for a short 
 term some terms as short as one year. The 
 truth is, Mr. President, that a freehold office, 
 with a life tenure, is repugnant to American lib 
 erty. I might say it is abhorrent to American 
 liberty, but I will only say, that it is abhorrent 
 to my own heart ; and, Sir, against that tenure 
 of our judiciary, the great popular heart of Amer 
 ican liberty beats beats beats and mine beats 
 in sympathy with it. And that, Sir, has swept 
 away, and is sweeping away, and will sweep 
 away, that foundation stone of our liberty, unless 
 that objection be removed. Now, Sir, I would 
 propose this remedy : I would substitute, for the 
 English foundation of your court, the American 
 foundation. I would substitute for " independence 
 of the crown," the "support of the people." I 
 would take your court up bodily from that mo 
 narchical basis, and place it bodily upon the basis 
 of liberty, viz. : instead of independence of the 
 crown, I would have the support of the people. 
 I would so arrange your fundamental law that 
 the people as a whole, and as a body, should al 
 ways be in favor of the court. Hence, I would 
 not put it to them so as to compel them to divide 
 for and against it ; and hence, I am opposed to 
 an elective judiciary. I want to take away this 
 popular feeling call it prejudice, or what you 
 will ; but it is a fact, and a stubborn fact. I 
 want to take it away, and let your whole people 
 come up to the support of the court with a warm 
 heart, and with strong hands. Now, Sir, what 
 is the English system ? The English system was 
 established by the act of settlement in 12th and 
 
 13th of King William III., in 1700. There you 
 have it, verbatim et literatim ; and we have it in 
 our Constitution, almost bodily, in chapter third, 
 article first, and the subsequent article of another 
 chapter. The object in view in the English sys 
 tem, was to prevent the crown from making a 
 court to try its own cases against the people. 
 The judges holding office at the will of the crown, 
 when the crown wished to try a case of privilege 
 against liberty, it could, and it frequently did, 
 make a court to try its own case. That act pro 
 vided that, after it took effect, the judges or pen 
 sioners for they were classed with pensioners 
 under the crown, should not hold a seat in the 
 House of Commons, and their commissions should 
 run, in the Latin words of the writ, quamdiu bene 
 se ffesscrint while they carry themselves well, or 
 while they behave well. And another article in 
 that same law, prevented the pardon of the crown 
 being pleadable in bar of the judgment of the 
 court. There was the system, and here it is in 
 this article of the Constitution. But the Ameri 
 can system is in article third, which the gentle 
 man from Fall River read, and I was glad to 
 hear it. Our fathers had both systems before 
 them, and they put them both into the Constitu 
 tion, side by side. The American system is as 
 follows : 
 
 " In order that the people may not suffer from 
 the long continuance in place of any justice of 
 the peace who shall fail of discharging the impor 
 tant duties of his office, with ability and fidelity, 
 all commissions of justices of the peace shall ex 
 pire, and become void, in the term of seven years 
 from their respective dates ; and upon the expira 
 tion of any commission, the same may, if neces 
 sary, be renewed, or another person appointed, as 
 shall most conduce to the well-being of the Com 
 monwealth." 
 
 That is the American system known by our 
 fathers, approved by our fathers, put into the 
 Constitution by our fathers, right after the Eng 
 lish system. In regard to the number of years, 
 we differ ; that is a matter of judgment ; but in 
 regard to limiting the tenure of office, so that it 
 shall not be a freehold, that is a matter of principle. 
 I shall vote for a limited tenure. 
 
 Mr. HOOPER, of Fall River. Is not a prop 
 osition now pending before the Convention to 
 change what the gentleman calls the American 
 system, and make the judges elective? 
 
 Mr. GILES. I am not able to answer that. 
 The gentleman refers to another proposition ; as 
 to justices of the peace, I am not able to say. 
 While we are upon the subject of justices of the 
 peace, let me ask, what governor turns out jus 
 tices of the peace when he comes into the execu- 
 
202 
 
 THE JUDICIARY. 
 
 [62d day. 
 
 Wednesday, 
 
 GILES ADAMS LORD ALLEN. 
 
 [July 20th. 
 
 live chair, whatever may be his politics, if the 
 justice of the peace is a popular officer ? Does 
 not every gentleman, who comes into the exec 
 utive chair, renew their commissions, without 
 being asked to do so? I have seen gentlemen 
 show commissions sent to them by a political 
 opponent, without being asked ; they did not 
 know that their commissions had expired, until 
 they received a renewal from a political opponent. 
 
 Now, as to tenure, I should prefer fifteen years. 
 I would not say that the judge should not be 
 reappointed, because that might take away the 
 inducement to good conduct, and to study faith 
 fully his duty ; but, as gentlemen know, if the 
 tenure was fifteen years, he would seldom, if ever, 
 be reappointed ; and all the objections so forcibly 
 put by gentlemen upon the other side, as to the 
 effect of reappoiiitment upon the existing judge, 
 would be removed. Let me say, that in seven 
 years, or in ten years, or in fifteen years, a proper 
 man will acquire a judicial character that no 
 political party can afford to sacrifice upon political 
 grounds merely. I wish to vote distinctly upon 
 a limited tenure of office, as a matter of princi 
 ple of American liberty and policy ; but the 
 number of years is a question upon which I, with 
 others, must assent to the decision of the ma 
 jority. In answer to what gentlemen so forcibly 
 put, as to what is called the popular idea of 
 liberty, as it may bear against the court, when I 
 say it is beating against the bulwarks of the ju 
 diciary, I will refer to the speech of the gentle 
 man from New Bedford, this morning, and the 
 effect which it had upon their own minds. I say 
 that the judge should be no man s man the 
 judge should be no party s man ; and when I say 
 that, I say, with equal emphasis, the judge should 
 be the people s man he should be the State s 
 man he should be the law s man ; and, agreeing 
 with the approving nod of my friend for Wilbra- 
 ham, I will say, with all the emphasis of my mind 
 and heart, that he should be the Constitution s 
 man. Give me a man like that, and he is my 
 judge for any human tribunal. I am opposed to 
 the elective principle, but I am in favor of a 
 limited tenure, and, although I may differ from 
 others to whose judgment I defer, I shall give my 
 vote upon the convictions of my mind and con 
 science ; and I believe that this will be right. 
 
 In conclusion, as I must omit many things in 
 my mind, to conclude within my time, I will say, 
 that a judge should be no man s man ; he should 
 be no party s man ; but he should be the people s 
 man he should be the State s man he should 
 be the law s man, and I say it with all the 
 emphasis of my mind and heart he should be 
 the Constitution s man. 
 
 Mr. ADAMS, of Lowell. I have not occupied 
 the attention of the Convention for one moment 
 upon this question, and I do not propose to do 
 so, if I can get an opportunity to vote. This dis 
 cussion has run through several days already, and 
 I submit that, if we should sit here and discuss the 
 question a day or two longer, there would not, 
 probably be anything new said upon it, either for 
 or against. It is extremely desirous that the vote 
 should be taken before the adjournment of the 
 Convention to-night ; and, as the yeas and nays 
 are ordered upon this amendment, and as there 
 may be one or two other amendments on which 
 the yeas and nays may be ordered, I think, under 
 the circumstances, it is proper that I should move 
 the previous question, which I now do. 
 
 Mr. SUMNER, of Otis. I have a very few 
 words which I should like to say, if the gentle 
 man will have the goodness to withdraw his mo 
 tion for a moment. 
 
 Mr. ADAMS. If it is the wish of the Con 
 vention to hear the question discussed farther, I 
 will withdraw the motion ; but I am desirous of 
 having the question taken this afternoon. I 
 would yield to my friend who has just taken his 
 seat, as quick as I would to any other man living, 
 but I think it is the general desire of the Conven 
 tion that the question should be taken. 
 [Cries of " Question ! " " Question ! " ] 
 Mr. LORD, of Salem. I am very sorry, Mr. 
 President, that the chair happens to be occupied 
 as it is now, (Mr. Wilson in the chair,) because 
 if it were occupied by the President of the 
 Convention, I should call upon the gentleman 
 from Natick to spring to his feet, as he did yes 
 terday, in opposition to that adroit movement by 
 which, just upon the heel of a speech of a gentle 
 man who made just such a speech as if he ex 
 pected that the previous question was to be 
 moved ; I say that I regret that the chair hap 
 pens to be so occupied, because we cannot now have 
 the benefit of those suggestions. I know that we 
 shall, in a moment, have my learned friend from 
 Worcester, whom I see right before me, (Mr. 
 Allen,) and who yesterday followed the gentle 
 man from Natick against this motion, to put an 
 end to the debate upon a subject that had not 
 occupied the attention of the Convention more 
 than four or five times as long as this has, and 
 which was not more than a hundred times as 
 important as this is. I think he certainly will 
 
 spring to his feet 
 
 Mr. ALLEN. In every instance, hitherto, 
 where I have spoken or acted upon the subject, 
 it has been in favor of allowing to the gentleman 
 from Salem, and his friends, an opportunity of 
 discussion ; and therefore I am at a loss to know 
 
62d day.] 
 
 THE JUDICIARY. 
 
 203 
 
 Wednesday,] 
 
 LOUD ALLEN WHITNEY. 
 
 [July 20th. 
 
 why an allusion has been made to me in relation 
 to this matter. My influence has been uniformly 
 in favor of the freedom of debate. 
 
 Mr. LORD. I will certainly apologize to the 
 gentleman from Worcester, if I have done him 
 any injustice. I am very happy indeed now to 
 learn that he is opposed to the previous question. 
 I am very happy to learn that he does not now 
 desire that this motion shall prevail. And, Sir, 
 I have observed that it is not those gentlemen 
 who have been most prominent in this discussion, 
 upon whom the lot always happens to fall to 
 move the previous question. The gentleman 
 from Lowell, whom I see directly before me, 
 (Mr. Butler,) did not move the previous question 
 this afternoon directly ; it was his colleague who 
 made the motion ; and I say it so happens that 
 those gentlemen who, in the matter of political 
 preferment, stand the best chance, are not the 
 ones upon whom the lot ordinarily falls to move 
 the previous question. If, Sir, it would be at all 
 proper to allude to a fable which is now fresh in 
 my mind, and which I know the Convention will 
 not want me refer to, because every gentleman 
 has it in his own mind, I hear it whispered all 
 around me, that would be a good illustration ; 
 but I will not name it. 
 
 Now, Sir, we all agreed yesterday, on both 
 sides of the House, that the best mode to close 
 debate was to allow those gentlemen who had 
 anything to say upon the subject to say it ; and 
 when they had said it, to take the question. We 
 all agreed to that. And, as I said, if I did 
 any injustice to the gentleman from Worcester, 
 (Mr. Allen,) and I do not know that I did, 
 because he says he is always opposed to this 
 previous question ; but I confess I had a sort of 
 lingering reminiscence, probably it was a mere 
 delusion in my own mind, but there was there 
 a flickering recollection that not very late in the 
 session, on a matter that had not been wholly 
 exhausted, the gentleman from Worcester did 
 move the previous question, although, I say, 
 that such is my recollection ; and although gen 
 tlemen around me aver that my memory is not 
 at fault, yet I am bound by the declaration the 
 gentleman has just made, to believe that I am 
 laboring under a mistake in this matter, and that 
 the gentleman did not move the previous ques 
 tion. If, therefore, I have done him wrong, he 
 will accept this as my apology. 
 
 Mr. ALLEN", of Worcester. Mr. President : I 
 do not know that I ought to notice an attempt to 
 introduce a personal question with me for what 
 purpose I know not, having had little to do with 
 the gentleman from Salem, either now or form 
 erly ; I say, why he should seek a personal con 
 
 troversy with me, or refer to me in the manner 
 in which he has just done, I am wholly at a loss 
 to say. I do not know to what cause I am in 
 debted for this particular honor. If, however, 
 he chooses to honor me with his remarks, and to 
 quote either my words or my acts, as uttered and 
 done in this Convention, I would be obliged to 
 him, if he would qiiote them correctly. I said 
 that my uniform action had been in favor of 
 granting the right of debate to the fullest extent ; 
 and, I believe, that on one occasion, when that 
 gentleman was desirous of addressing the Con 
 vention, and by the rules of the Convention he 
 was precluded therefrom, I obtained the liberty 
 for him, and under similar circumstances I ob 
 tained leave for other gentlemen of his party to 
 address the Convention ; and, I believe that I can 
 safely say, that, if the course of any one in this 
 body, towards that gentleman and his friends, 
 has been marked with liberality from the begin 
 ning, it has been mine. But, Sir, I repeat, that 
 perhaps I may have done wrong in noticing this 
 attack, which the gentlemen has seen fit to make 
 upon me. I do not know to what cause I am to 
 attribute the honor. Certainly not to any rela 
 tions that have subsisted between us, friendly or 
 unfriendly, or to any movement of mine by which 
 I have come in contact with him. 
 
 Mr. LORD. [Mr. Allen having left his seat and 
 walked up the aisle, towards the door.] Mr. 
 President : 
 
 " He that fights and runs away, 
 May live to fight another day." 
 
 [Much laughter, and Mr. Allen returned to his 
 seat.] I have no desire to say, either, that there 
 have been any relations between the gentleman 
 from Worcester and myself. I am quite indiffer 
 ent in that respect. I have made no attacks xipon 
 him. Anything I have said cannot be tortured 
 into an attack upon him. I said that I was 
 happy to see the gentleman from Worcester in 
 his place, because I should expect him to take 
 the same ground to-day that he took yesterday. 
 Unless he is one of those gentlemen who cannot 
 keep the same thought over night, I think 
 
 Mr. WHITNEY, of Conway. I rise to a ques 
 tion of order. 
 
 The PRESIDENT. The gentleman from Con- 
 way will state his point of order. 
 
 Mr. WHITNEY. The gentleman does not 
 discuss the question before the Convention. The 
 Chair will be good enough to state what the ques 
 tion is. 
 
 The PRESIDENT. In the opinion of the Chair, 
 the gentleman from Salem was not adhering closely 
 to the question before the Convention . The ques- 
 
204 
 
 THE JUDICIARY. 
 
 [62d day. 
 
 LORD WHITNEY BUTLER. 
 
 [July 20th. 
 
 tion was on the call for the previous question. 
 A certain line of remark, however, had been pre 
 viously indulged in, and the Chair did not feel 
 called upon to interfere of his own accord. 
 
 Mr. LORD. The only remark I have to make 
 is this : while I had the floor, and was discussing 
 the question, the gentleman from Worcester, (Mr. 
 Allen,) rose and made some allusions 
 
 Mr. WHITNEY. Did the Chair decide the 
 question of order. Did he rule that the gentle 
 man was speaking to the question ? I rose to a 
 question of order. I think the gentleman is not 
 speaking to the question before the House. If 
 the gentleman is not discussing the question, I 
 desire that the Chair will hold him to the rule. 
 
 The PRESIDENT. If the Chair is called 
 upon to decide the matter, he must say that the 
 gentleman is not strictly in order. The gentle 
 man from Salem will confine himself to the ques 
 tion. 
 
 Mr. LORD. If it is not in order to apologize 
 to the Convention for being out of order, then I 
 must go on. [Laughter.] Now, Sir, I desire to 
 bring myself precisely within the rule of order, if 
 I can do so ; and I think I can do so, and at the 
 same time reply to the gentleman from Worces 
 ter. 
 
 I say, Sir, that yesterday, when the motion was 
 made for the previous question, the gentlemen 
 who are in the majority in this House, rose in 
 every quarter of the House, protesting against it. 
 It was upon a subject which had been discussed 
 much more than this subject has been. It was 
 upon a subject much less important than this a 
 subject on which every gentleman had spoken, as 
 it turned out afterwards, who desired to speak 
 because, although the gentleman from Natick, 
 (Mr. Wilson,) and the gentleman from Worces 
 ter, (Mr. Allen,) and others, rose to oppose the 
 demand for the previous question, yet an inter 
 mission of two hours, (from one o clock till three,) 
 answered just as well, and in the afternoon no 
 person spoke upon the subject. I say, therefore, 
 that these gentlemen are committed to a position 
 upon the previous question, on a matter of this 
 importance, that has not been discussed any more 
 than this matter has. And I am opposed to the 
 previous question, at this time, for other reasons. 
 I am opposed to it because I myself, through the 
 perhaps I ought to say, because I was more 
 active than some other gentlemen, and have had 
 an opportunity to address the Convention, though 
 not at any great length, for I believe the President 
 told me afterwards that I was only upon the floor 
 about eleven minutes I say that I am opposed to 
 the previous question, because other gentlemen 
 desire to speak not I. The gentleman for Man 
 
 chester, (Mr. Dana,) made a brief address on the 
 other side of the question, which is now in its 
 last stage, and those followed one after another 
 on the majority side, and nothing has been said 
 at all except by those who are in favor of the 
 proposition. The gentleman for Manchester made 
 a brief speech in the morning, and I made a few 
 remarks and but a very few but not on the 
 general subject. I did not propose to discuss it. 
 It has been discussed by others, and it is now in 
 its last stage, in a condition in which it cannot be 
 amended ; because, I understand the rule to be, 
 that if we adopt this resolution, it must stand just 
 as it is, as part of the Constitution ; and, inasmuch 
 as gentlemen wish to propose amendments, it 
 seems to me, that of all occasions when the pre 
 vious question might be moved, this is the most 
 unseasonable time to sustain it. But, Sir, I do 
 not make these remarks from any personal feeling 
 in regard to myself. I have had my day. I have 
 said what I design to say, and therefore I speak 
 from no personal considerations. I speak in be 
 half of others, towards whom I am democratic 
 enough to believe that they ought to have as free 
 an opportunity to speak as I have had, and for 
 the freedom of debate. 
 
 Mr. BUTLER, of Lowell. I will detain the 
 Convention only with a single word. " Out of 
 the abundance of the heart, the mouth speaketh." 
 I have observed that the gentleman from Salem, 
 on this call for the previous question, thought it 
 was quite pertinent to the subject of debate, to say 
 that I have moved the previous question indirectly. 
 
 Mr. LORD. If the gentleman from Lowell 
 will pardon me, I said no such thing. I said that 
 the gentleman did not move the previous ques 
 tion directly. 
 
 Mr. BUTLER. Oh, yes ; no doubt. And the 
 gentleman has not now even the virtue of honesty. 
 [Cries of " order," " order."] Every-body under 
 stood him, Sir, because every- body knew that he 
 meant to intimate that I did move it indirectly ; 
 and I must say that when a man manifests so 
 much malignity 
 
 [Renewed cries of " order," " order."] 
 
 Mr. LORD. I rise to a question of order. 
 [Laughter.] 
 
 The PRESIDENT. The gentleman from Sa 
 lem will state his point of order. 
 
 Mr. LORD. My point of order is this : 
 whether the gentleman s remarks are to the ques 
 tion ; whether " the main question shall be now 
 put?" [Laughter.] I withdraw my point of 
 order if I may be allowed the opportunity of re 
 plying. 
 
 The PRESIDENT. The gentleman from 
 Lowell will proceed in order. 
 
62d day.] 
 
 THE JUDICIARY. 
 
 205 
 
 Wednesday,] 
 
 BUTLER HILLARD KEYES. 
 
 [July 20th. 
 
 Mr. BUTLER. I say that one of the gentle 
 man s arguments why the previous question 
 should not be put, was that I had made the call 
 for it indirectly. Sir, I had the honor to ask my 
 colleague to withdraw it in favor of my friend 
 from Otis, but he would not, and certainly had a 
 right to exercise his own judgment. 
 
 Now, I have seen men, in my time, who had 
 malignity enough to make an attack, and not 
 manliness enough to stand by it ; and, Sir, I have 
 seen the gentleman from Salem, now complaining 
 of the freedom of debate, and he says that the 
 main question ought not to be put, because it 
 will cut off the freedom of debate. I remember, 
 Sir, in order to show that it is parliamentary 
 usage to stop debate whenever the majority think 
 proper, the first time that I had the honor of 
 rising in a deliberative assembly. It was in this 
 House, on a joint meeting of the Senate and 
 House of Representatives ; the president of the 
 Senate in the chair. In the remarks I made, 
 being ignorant of parliamentary rule, I had the 
 misfortune to wander from the question, and the 
 gentleman representing the city of Salem called 
 the city of peace, I suppose, because there is no 
 peace in it rose and called me to order ; and 
 when I attempted to go on he moved the House 
 that I be prevented from going on, and he got one 
 hundred and thirty- eight men to stop me ; but 
 that was not quite men enough to stop me, and 
 I was permitted to proceed. And this is the man 
 who talks about the freedom of debate ! 
 
 Mr. LORD. Is all this pertinent to the motion 
 for the previous question ? 
 
 The PRESIDENT. The gentleman from 
 Lowell will proceed in order. 
 
 Mr. BUTLER. I think the time has come 
 when the question should be taken, and I hope 
 it will be taken. I only thought I should like to 
 call back this reminiscence. I grant that I was 
 not stopped, but it was not on account of any 
 good- will in this quarter. 
 
 Now, I think we have said enough on this 
 matter, and I hope the previous question will be 
 sustained. 
 
 Mr. HILLARD, of Boston. I am not one of 
 those, who, at all times, and on principle, am 
 opposed to the previous question. I think it is a 
 right which the majority may use, and sometimes 
 must use, but I think, also, that it is an extreme 
 medicine of a deliberative assembly, and not its 
 daily food. And I submit it, if the gentlemen 
 who are charged with the responsibility of this 
 body the majority are not now administering 
 this extreme medicine when we only want a little 
 more of the daily bread. What attitude are we 
 in ? Here is a question which we supposed was 
 
 settled some days ago. This morning, between 
 ten and eleven o clock, the subject revives again, 
 upon the proposition for a tenure for a term of 
 years, and this afternoon it takes another aspect : 
 that of making judges elective. I submit that 
 these two questions are not only more important, 
 but they are at least four times more important 
 if you can thus guage such things than any 
 other one question that has come before this 
 body. And what has been the course of debate 
 to-day ? We have had a speech from the gentle 
 man representing Manchester, (Mr. Dana,) and 
 another from the gentleman from Salem, (Mr. 
 Lord,) neither of them cutting into the pith of 
 the question, but only suggesting certain grounds 
 of expediency, irrespective of their merits, why 
 they should not be pressed at this time. Follow 
 ing them, we certainly have had some noticeable 
 speeches, such as the very effective speech of the 
 gentleman for Wilbraham, (Mr. Hallett,) and the 
 remarkable conflagration of the gentleman from 
 New Bedford, (Mr. French,) and this afternoon 
 a brief speech from the gentleman representing 
 Fall River, (Mr. Hooper,) and one who has 
 startled friend and foe, from the valued friend of 
 twenty-six years, whom I see before me, (Mr. 
 Giles,) who spoke with the voice of Jacob though 
 the hands were the hands of E.sau ; and, yet, 
 upon the tail of all this, when the minority feel 
 that this is a paramount question, in which our 
 constituents are most deeply interested, is the 
 great axe to fall, cutting off from the minority 
 the power of answering one of the new argu 
 ments which have been made to-day r 
 
 Now I submit to the majority, that the minor 
 ity are in a position not to ask favors, but to 
 claim rights, because we have not turned towards 
 them a factious countenance. We have adhered 
 to the legitimate functions of a minority, and no 
 more. We have thrown no factious or captious 
 obstructions in the path of business here ; and 
 we are, therefore, not reduced to ask favors. 
 We claim it as a right, to be allowed to answer 
 some of the new arguments which have been 
 made to-day ; and, if we are denied that right, I 
 hope we shall forever after hold our peace, and 
 appeal from this body to the people in November 
 next. 
 
 Mr. KEYES, for Abington. I do not rise 
 because I am in favor of the previous question at 
 this or at any other time, but because, if the pre 
 vious question should be adopted, there would 
 go out, as the discussion now stands, a false im 
 pressionif any impression at all in reference 
 to the facts of the case. I should suppose, by the 
 course the argument has taken, that one party 
 here, called the minority party by which, I sup- 
 
206 
 
 THE JUDICIARY. 
 
 [62d day. 
 
 Wednesday,] 
 
 KEYES SCHOULER TRAIN. 
 
 [July 20th. 
 
 pose, is meant the Whig party had been very 
 much oppressed, and had npt had an opportunity 
 to be heard, while all the speeches made, had 
 been against the position taken by its members. 
 I do not know that I am a very good judge, not 
 having been here all the time, but I think that 
 the gentleman from Fall River, (Mr. Hooper,) 
 and myself, are almost all who have said a single 
 word in favor of the election of judges by the 
 people. We knew that there were here a hun 
 dred friends of that measure, who feared the peo 
 ple too much to advocate the measure, but I have 
 heard few make speeches upon that side of the 
 question ; whereas, all the power of the Whig 
 party, and, if I may say it without disrespect 
 all the cowardice, and that is much, of all the 
 parties have been exerted upon the side in favor 
 of appointment and the life tenure. 
 
 Now, Sir, I should be glad to have this debate 
 continued, because I feel stronger and stronger, 
 every day, in support of the policy of the election 
 of judges by the people. I do not guess at it, 
 but I know that if this debate continues, that 
 view of the question will accumulate strength 
 every hour. I am satisfied, that however much 
 talent may be left in the quarter against such a 
 proposition, that some of the best has already 
 been expended in opposition to such a scheme, 
 and those efforts cannot be outdone. But, I wish 
 to say, if ever there was a time when a party, or 
 the friends of a particular measure, could with 
 propriety move the previous question, this is the 
 time ; because it is a time when the side moving 
 it, have had but two or three speeches upon the 
 subject ; while a large portion of the talent of the 
 opponents of an elective judiciary, has been 
 poured out in defence of their side of the ques 
 tion, and my impression is though I by no 
 means wish to make a comparison of one part of 
 the members of this Convention with another 
 my impression is, that no argument upon that 
 side could strengthen it, but that debate would 
 have a tendency, in a body like this, to do away 
 with the bugbears which always have existed in 
 the community in regard to it. If we could strip 
 this subject of that influence which is born with 
 us, and which has existed in the atmosphere 
 about us as long as we have lived, a large portion 
 of what are called the most able arguments put 
 forth would seem absurd. The idea that you 
 must strip the governor of all his appointing 
 power, because he is not fit to be trusted with 
 the selection of even the least important agents, 
 and yet, that he is the only power competent to 
 be trusted with the appointment of judges, is 
 absurd. 
 
 Mr. SCHOULER, of Boston. I rise to a 
 
 question of order. The question before the Con 
 vention is on the call for the previous question, 
 but the gentleman is discussing the main ques 
 tion, and therefore is out of order. 
 
 The PRESIDENT. The point of order is 
 well taken, and the gentleman for Abington 
 will confine his remarks to the question before 
 the Convention. 
 
 Mr. KEYES. I beg pardon of the Chair. I 
 forgot myself for the moment, inasmuch as 
 others did not talk about the question. But, to 
 confine myself to the point, I certainly shall not 
 vote for the previous question I do not know as 
 I ever did so long as persons wished to discuss. 
 Our side has not been discussed, while the time 
 and talent of the opposition has been poured out 
 in full measure. 
 
 Mr. TRAIN, of Framingham. I do not desire 
 to occupy the time of the Convention, although I 
 know they would listen to me with pleasure, 
 because they know me to be a good-natured man, 
 and one who never does anything simply for the 
 sake of irritating somebody exactly as my 
 friend from Worcester says, I never say anything 
 maliciously but I speak out of the fulness of my 
 heart. Well, Sir, I had the misfortune, yester 
 day, to move the previous question out of that 
 fulness, and I am sorry to confess to-day, that I 
 did a very foolish thing ; and I am afraid my 
 friend over the way (Mr. Adams) has done an 
 other very foolish thing, because it is perfectly 
 obvious to-day, that there are those who wish to 
 address the Convention upon the main question, 
 though it was perfectly evident yesterday that 
 there was nobody who wished it. But, times 
 change, and men change. That we cannot help ; 
 we are all in the same boat, and we will sail along 
 as well as we can. 
 
 I am delighted, on the whole, that this matter* 
 has arisen, because it verifies the old maxim that 
 "what is sauce for the goose is sauce for the 
 gander," and it is no matter which is the goose, 
 as long as the gander is on the other side. 
 [Laughter.] I hope the previous question will 
 not be ordered at this time. Certainly, no elo 
 quence of mine is needed, to convince this Con 
 vention that this is the most important question we 
 shall be called to pass upon here. Every- body 
 concedes that. If this is the vital question, let 
 us talk it out, and my word for it, the people 
 will not care whether we spend a hundred dol 
 lars more or less, provided we settle this question 
 with a degree of unanimity which will be satis 
 factory to all the people of the Commonwealth. 
 I desire to mete out to my friends upon both 
 sides of the question, the same sort of consider 
 ation which I received yesterday. As there seems 
 
62d day.] 
 
 THE JUDICIARY. 
 
 207 
 
 Wednesday,] 
 
 HOOD BARTLETT DANA. 
 
 [July 20th. 
 
 to be a disposition to press the call for the previ 
 ous question, I move that when the question is 
 taken it be taken by yeas and nays. 
 
 Mr. HOOD, of Lynn. I desire to give a few 
 reasons why the previous question should be sus 
 tained. This Convention have voted to adjourn 
 on Saturday next, [laughter] ; they voted to 
 accept the Report of the Committee on adjoiirn- 
 ment, which was that we could bring our labors 
 to a close at that time. There comes up here from 
 the people of the Commonwealth the expression 
 of a general desire that this Convention should 
 finish their labors and adjourn without day. 
 There comes up through the reform press of the 
 State, the same expression. On the other hand, 
 there comes from the press of the party to which 
 the gentleman from Salem, (Mr. Lord,) belongs, 
 a denunciation of this Convention for lengthening 
 out its session. I submit to the Convention that 
 is sufficient reason to induce us to proceed as 
 rapidly with our business as can be done consist 
 ently with a proper regard for the public interest. 
 I submit that this question has been thoroughly 
 discussed, and pretty much on the side of gentle 
 men opposed to taking the previous question. I 
 should be glad to occupy some time in the dis 
 cussion of the subject, myself, but I am willing 
 to concede my right to the floor upon this ques 
 tion, at this time, and I trust other gentlemen are 
 willing to do the same thing. We have a large 
 number of subjects upon the Orders of the Day, 
 which have to be disposed of; I presume every 
 member here has made up his mind how he 
 shall vote upon the question, and I think the 
 time has come for it to be taken. 
 
 The gentleman from Boston, (Mr. Hillard,) 
 says that the minority, to which he belongs, has 
 not endeavored to delay the business of the Con 
 vention. I do not propose to make any charge of 
 that kind against them, but from the commence 
 ment of this Convention, there has been a constant 
 and continued opposition to any attempt to hasten 
 our business. I believe it was on the second 
 week of the session that I moved the appointment 
 of a Committee to consider the question whether 
 it was possible for the Convention to finish its 
 labors before the fourth of July. When the 
 question was brought up, who opposed it ? And 
 whenever a motion has been made to shorten 
 debate upon any question, gentlemen have risen 
 in their places and come out strongly in favor of 
 free discussion. I am in favor of free discussion ; 
 but, Sir, I remember the promises made to the 
 people, before the Convention assembled, that the 
 Convention would finish its labors within seventy- 
 five days. I have a printed document before me, 
 to which I would call the attention of gentlemen, 
 
 for it has been customary to refer to the pro 
 gramme laid down by the committee. In this 
 document they declare that the Convention could 
 be brought to a close in seventy-five days. If 
 we are to confine ourselves to the rule which has 
 been laid down, I ask gentlemen to apply it in 
 this case. But the rule has been departed from 
 in one respect, for in this document I see it is 
 said that the pay of members of the Convention 
 shall be the same as that of members of the legis 
 lature. 
 
 The PRESIDENT. The Chair must remind 
 the gentleman from Lynn, that the main question 
 is not under discussion. 
 
 Mr. HOOD. I hope, therefore, the question 
 will be taken, and that the Convention will then 
 proceed to consider the subjects upon the Orders 
 of the Day, and finish its business by Saturday 
 next, according to the expectation of the people. 
 
 Mr. BARTLETT, of Boston. I have had the 
 misfortune to be absent while this debate has 
 been in progress, and I should have been very 
 glad, if not to have participated, at least to have a 
 chance to review the entire ground. That indi 
 cates, of course, my desire that the previous ques 
 tion be not now sustained. Probably, Sir, all 
 that could be fairly said, has been exhausted upon 
 the subject. But there are some few questions 
 which, at some proper period, I desire to put to 
 the gentleman who introduced the project. I 
 suppose if the question should be decided to be 
 taken, that the explanations elicited by those ques 
 tions will be lost, and I will now, if it is in order, 
 put the interrogatories. 
 
 The PRESIDENT. The gentleman can pro 
 ceed, if there be no objection. 
 
 Mr. BUTLER, of Lowell. I object. 
 
 Mr. BARTLETT. Thanking the Convention 
 for being permitted to proceed thus far, I will 
 trouble them no longer. 
 
 Mr. DANA, for Manchester. I have an ob 
 jection to urge against putting the previous ques 
 tion. I am one of those who usually remain 
 here until there is no quorum, at night, when 
 those gentlemen who are very desirous of termi 
 nating debate, and hurrying business, are not 
 here. I agree, that the main questions have been 
 pretty thoroughly discussed ; that is, the ques 
 tion of an elective judiciary, and the tenure of 
 office, and perhaps as far as gentlemen wish to 
 discuss them, and I think if no attempt is made 
 to put the question, the Convention will not be 
 troubled by farther debate upon those points. 
 But there is something peculiar in the proposi 
 tion of the gentleman from Worcester, which has 
 never been discussed, and that js, the subject of 
 confirmation by the Senate. There are some 
 
208 
 
 THE JUDICIARY. 
 
 [62d day. 
 
 "Wednesday,] 
 
 DANA GKAY STRONG EARLE. 
 
 [July 20th. 
 
 serious questions which arise out of that subject, 
 which I intended to have spoken of, but was pre 
 vented, by being cut off by the half hour rule. 
 
 The PRESIDENT. The Chair would remind 
 the gentleman that the only question before the 
 Convention, is the call for the previous question. 
 
 Mr. DANA. I wish to state the reasons why 
 the previous question should not be put. It has 
 been argued here, that the main question has 
 been thoroughly discussed ; and am I not in or 
 der in saying that, though the main question has 
 been discussed, yet there are other questions con 
 nected with it, which have not been r 
 
 The PRESIDENT. The gentleman is in order. 
 
 Mr. DANA. Then I wish to say, that there 
 arise serious questions out of this matter of con 
 firmation by the Senate ; and, if I am not mis 
 taken, the gentleman from Worcester has an 
 amendment to that very point, which he will be 
 cut off from offering, if the previous question is 
 adopted. I ask him if he has not an amendment, 
 which provides that the government may fill a 
 vacancy in the court during the nine months 
 when there is no legislature in session ? 
 
 Another thing : the gentleman s resolution, as 
 it now stands, would remove all the present 
 judges, all of them ; and the governor, in 1854, 
 would have to appoint a complete set of judges, 
 of both courts. I would ask if the gentleman 
 has not some amendment relating to that point ? 
 These questions are important, and they have 
 not been discussed at all. 
 
 Mr. GRAY, of Boston. I would ask upon 
 what principle it is that we allow of more than 
 one stage in the progress of a bill ? I take it, 
 that it is to throw the whole ground open more 
 than once ; and it is by virtue of that very proper 
 principle that these amendments are offered. It 
 seems to me that, by parity of reasoning, the 
 conclusion is irresistible, that if there is an oppor 
 tunity of offering amendments, there should be 
 an opportunity of reasonable discussion upon 
 them. I stand upon a ground where I stood 
 yesterday, and standing upon which, I opposed 
 some of my friends. I said then, and I say now, 
 that I have yet to hear the first speech of any 
 length made against time. I say, Sir, though it 
 may not be in order to reflect upon the past, that 
 these attempts to cut off debate are lowering the 
 dignity of the Convention in the eyes of the peo 
 ple, and I think it ought to lower the Conven 
 tion in its own eyes. I say, also, that not one 
 moment is gained by this course. Now, Sir, I 
 want the question taken this afternoon, because 
 we have a very full house, and I believe we 
 should have reached it, and, what is more, I be 
 lieve we shall still reach it, without any attempt 
 
 to force the question. I suppose gentlemen can 
 recall an old tale in verse, which was one of the 
 first things I ever learned, and of which I will 
 only repeat a couple of lines. A soldier came 
 into a lunatic asylum, with his sword by his side. 
 One of the inmates of the asylum asked him 
 why he carried the sword. " Why," said he, 
 " to kill my enemies." I thought there was good 
 sense, as well as good feeling, in the reply of 
 the lunatic : 
 
 " Sure that s a thought I d not own, 
 They 11 die of themselves, if you let them alone." 
 
 If gentlemen will let this debate alone, it will 
 die of itself. And I really think there are ques 
 tions connected with the subject, which ought 
 not to be forced under the previous question. 
 
 Mr. STRONG, of Easthampton. I am op 
 posed to putting the previous question at this 
 time, for two reasons. In the first place, I think 
 if this subject is debated until some time in the 
 forenoon to-morrow, we shall be able to get a 
 majority of the Convention to vote in favor of the 
 amendment of the gentleman from Fall River, 
 (Mr. Hooper,) which, if I mistake not, is to ap 
 ply the elective principle to the judiciary. And 
 if we can carry that proposition through the Con 
 vention, and submit it to the people, it will be the 
 only thing which I can imagine that will save the 
 life of the Constitution which you will submit 
 to them. I cannot think of anything else which 
 we can do that will have the effect of redeeming 
 the other acts which we have passed. 
 
 But I oppose tliis motion at this time for another 
 reason. There are gentlemen in the hall who 
 have not yet had an opportunity of speaking 
 upon this subject, who, I understand, desire to 
 speak upon the propriety of making the judges elec 
 tive by the people. For these reasons, therefore, 
 and especially for the last reason, I hope the 
 previous question will not now be sustained. 
 
 Mr. EARLE, of Worcester. I was about to 
 say that I hope the motion for the previous ques 
 tion will not be sustained at this time. And I 
 rather hope my friend from Lowell, (Mr. Adams,) 
 will withdraw it. It is very evident, from the 
 state and temper of the Convention at this time, 
 that if the previous question is sustained and 
 enforced, it will be no saving of time whatever ; 
 because under the existing circumstances, these 
 amendments having been recently introduced, 
 and having too been not very fully discussed upon 
 this occasion, there is a disposition manifested 
 upon the part of some gentlemen to discuss them 
 farther. And if they are not discussed now, 
 undoubtedly there will be a reconsideration, and 
 the discussion will then take place. I think it is 
 
62d day.] 
 
 THE JUDICIARY. 
 
 209 
 
 Wednesday," 
 
 BRADBURY LORD BUTLER. 
 
 [July 20th. 
 
 better, when a subject is directly before the Con 
 vention, to allow it to be fully discussed, and for 
 it to be finally disposed of, rather than to have the 
 discussion come up upon a motion to reconsider ; a 
 motion which, of itself, opens the whole subject 
 again to discussion. I hope, therefore, my friend 
 from Lowell will be induced to withdraw his 
 motion for the previous question ; and if he is 
 not, I shall be constrained to vote against it ; and 
 if the motion is lost, it cannot be made again. 
 
 Mr. BRADBURY, of Newton. I never 
 moved a previous question in my life, and never 
 voted for such a motion. I should, however, 
 have voted for the motion yesterday, if the ques 
 tion had been taken. But I am surprised that 
 gentlemen should confound that motion with the 
 one which the gentleman from Lowell (Mr. 
 Adams) now makes. Any one who knows any 
 thing of parliamentary law, or who understands 
 anything of the mode of proceeding, must see 
 that there can be no comparison between the two 
 motions. The gentleman from Framinghan (Mr. 
 Train) moved the previous question, upon a 
 motion to reconsider a particular vote. His 
 motion did not open the whole subject to discus 
 sion at all. But if the reconsideration had taken 
 place, it would have opened the whole subject to 
 discussion. If ever I could be in favor of a 
 motion for the previous question, therefore, I 
 should have been in favor of it then, because its 
 effect would have been to have extended the dis 
 cussion rather than to limit it. The effect of the 
 motion of the gentleman from Framingham was 
 to enlarge the rights of members, so far as dis 
 cussion is concerned, and not to curtail it. In the 
 case now before us, however, the effect is exactly 
 the reverse. The motion is retaliatory in its char 
 acter. Its effect is not to enlarge debate, but to 
 curtail it. It is not to open a wider range of de 
 bate, but to close it upon the final disposal of one 
 of the most important subjects before the Con 
 vention. I hope, therefore, the previous question 
 will not be sustained. 
 
 Mr. LORD, of Salem, claimed the floor. 
 
 The PRESIDENT. By the rules of the Con 
 vention, the gentleman from Salem having spoken 
 once upon this motion, cannot again take the 
 floor until the question is disposed of. 
 
 Mr. LORD. If the Chair had understood my 
 purpose in rising, he would not have been under 
 the necessity of calling me to order. I am aware 
 that, by the rules of the Convention, I am not 
 entitled to the floor again upon this motion. I 
 was, however, about to say, that, inasmuch as 
 the gentleman from Lowell has introduced here 
 a matter connected with a past proceeding in the 
 legislature, which is personal between himself 
 
 14 
 
 and me, I desire the leave of the Convention to 
 give my version of it. 
 
 The PRESIDENT. The gentleman will pro 
 ceed, by general consent, if no one objects. 
 
 Objection was made. 
 
 Mr. LORD. I then move that I may be per 
 mitted to speak again upon the subject, that I 
 may reply to the gentleman from Lowell. 
 
 The motion was agreed to. 
 
 Mr. LORD. I desire to return my thanks to 
 the Convention for giving me this opportunity 
 for personal explanation. I knew that I had no 
 right to speak. I threw myself upon their ind.J- 
 gence, and they have treated me with great kind 
 ness. 
 
 The gentlemen from Lowell (Mr. Butler) in 
 troduced here, before the Convention, a scene 
 which was enacted in the House of Representa 
 tives during the last session of the legislature, in 
 which he said that he and I were the actors. I 
 propose, Mr. President, to give my version of that 
 scene and those gentlemen who are members of 
 both bodies, will judge between us. 
 
 The two branches of the legislature the Sen 
 ate and the House of Representatives met in 
 convention ; the president of the Senate in the 
 chair. The gentleman from Lowell addressed the 
 convention, and was called to order. He was 
 called to order once, and he was called to order 
 twice he was called to order three times, and 
 more than three times, by members when the 
 president called him to order. Every-body who 
 was in that House remembers how the gentleman 
 from Lowell then addressed the president, and 
 said, " Who made you a dictator ? " 
 
 Mr. BUTLER, of Lowell. I rise to correct a 
 personal matter. The gentleman says this oc 
 curred on one day. Now, Sir, there was nothing 
 said against debate on the first day, nor on the 
 second. It was not till the third day, that the 
 occurrence of which the gentleman speaks, took 
 place. 
 
 Mr. LORD. I am giving my version of the 
 affair ; but I am very happy to hear that the 
 gentleman acknowledges it to be the true version. 
 When the gentleman from Lowell was called to 
 order by the presiding officer, he rose and said, 
 "Who made you a dictator?" That was the 
 position of things. The gentleman proceeded, 
 and proceeded, until there was very great irregu 
 larity. The difference in days, of which he 
 speaks, is of very little consequence. The gen 
 tleman proceeded upon that occasion until it was 
 apparent to every-body that he was, in truth, 
 " inexperienced " in parliamentary matters that 
 he did not even know the rules and proprieties of 
 the place. It was then, after he had been called 
 
210 
 
 THE JUDICIARY. 
 
 [62d day. 
 
 Wednesday,] 
 
 LORD FROTIIIXGHAM. 
 
 [July 20th. 
 
 to order over and over again, that I rose to a 
 question of order, and my question of order was 
 this : When a gentleman speaking is called to 
 order by the presiding officer, or by any other 
 member, he shall sit down. I have tried, myself, 
 to follow that rule. I complied with it two or 
 three times this afternoon, when I was called to 
 order by the gentleman from Conway, (Mr. 
 Whitney). Well, Sir, upon that occasion, I 
 raised a question of order, whether, a point of 
 order being made, and being sustained by the 
 presiding officer, the member decided to be out of 
 order could proceed without leave of the House ? 
 The Chair sustained me, and a motion was made, 
 that the gentleman from Lowell have leave to 
 proceed. Now, will the gentleman from Lowell 
 tell how I voted upon that motion? Will he 
 undertake to say, that I voted against his having 
 leave to proceed ? That is the question. When 
 he had been called to order when he had been 
 decided to be out of order, by the presiding offi 
 cer, and when he had demanded of the presiding 
 officer to know "who made him a dictator" 
 even then, did the gentleman find me voting 
 against his having permission to speak ? No, Sir. 
 No, Sir. But when he was decided to be out of 
 order, I suggested that permission be granted for 
 him to proceed in order. The gentleman knows 
 that I never objected to his debating, IN ORDER,. 
 It is not for him, therefore, to get up here and 
 
 Mr. UNDERWOOD, of Milford. I rise to a 
 question of order. I want to know what is be 
 fore the Convention ? 
 
 The PRESIDENT. The Convention have 
 granted the gentleman from Salem leave to make 
 a personal explanation, and the gentleman is pro 
 ceeding with his explanation. 
 
 Mr. LORD. I will not trouble the Conven 
 tion very much more. I merely wanted to make 
 this explanation, that when the gentleman from 
 Lowell was in the position which I have stated, I 
 suggested that he be permitted to proceed in 
 order. Now, if the gentleman from Lowell, or 
 anybody else, ever find me, upon a question 
 where the decision is to be final, undertaking to 
 stop debate, they will find me in a position in 
 which I have not been heretofore. I do not mean 
 to say that I have not, in the legislature, voted 
 for a motion of the previous question. I have 
 done it a hundred times. I have, myself, moved 
 it fifty times, but I have moved it upon motions 
 to reconsider, and upon questions which would 
 open the whole subject again for consideration. 
 I have moved it where no action was proposed, 
 and upon questions from which no harm could 
 come. But, in cases where important action 
 was taken, and where the decision was to be final, 
 
 I have not only never moved the previous ques 
 tion, but I have never voted to sustain it. And 
 this is the distinction which I think should be 
 made just now. And again, gentlemen will do 
 well to bear in mind that this is not a legislative 
 assembly, where our acts will not only be subject 
 to revision every year, but have the ordeal of two 
 other branches to pass ; but ours is a final de 
 cision, which is not subject to revision by any 
 legislative body. And in reference to this par 
 ticular case, the vote to be taken is the final 
 vote. 
 
 Mr. HOOD, of Lynn. I rise to a question of 
 order. The gentleman is not making a personal 
 explanation. He is discussing the question. 
 
 Mr. FROTHINGHAM, of Charlestown. It 
 seems to me, that in the present temper of the 
 Convention, it will not be the wish of the major 
 ity to take this question at the present time. I 
 rise, therefore, not for the purpose of making any 
 argument upon the expediency or the non-expe 
 diency of the previous question at this time, but 
 to suggest that, by a general arrangement, it may 
 be the understanding that the taking of the ques 
 tion be postponed until to-morrow at eleven o clock, 
 and that, in the meantime the discussion may be 
 allowed to go on. 
 
 For that purpose, and with that understanding, 
 I will venture to ask the gentleman from Lowell, 
 (Mr. Adams,) to withdraw his motion for the 
 previous question. 
 
 Mr. ABBOTT, of Lowell. I certainly am in 
 favor of the suggestion of the gentleman from 
 Charlestown 
 
 Mr. LORD, of Salem. I rise to a question of 
 order. I desire to inquire if the President has 
 decided the question of order made by the gentle 
 man from Lynn, (Mr. Hood) ? 
 
 The PRESIDENT. The gentleman front 
 Lynn rose to a question of order, when the gen 
 tleman from Salem took his seat, and the Chair 
 supposed he had concluded what he had to say. 
 
 Mr. LORD. I supposed it was my duty to 
 take my seat when I was called to order. 
 
 The PRESIDENT. The gentleman from Salem 
 was speaking out of order. He had made his 
 personal explanation, and was discussing the 
 question, when the gentleman from Lynn, (Mr. 
 Hood,) called him to order. The gentleman from 
 Salem then took his seat, and made no subsequent 
 attempt to go on. The Chair supposed, therefore, 
 that the gentleman had finished his explanation, 
 and yielded to the point of order, that he was dis 
 cussing the question, which he had no right 
 to do. 
 
 Mr. LORD. I have no wish to say anything 
 more upon this subject. I had supposed that any- 
 
62d day.] 
 
 THE JUDICIARY. 
 
 211 
 
 Wednesday,] ABBOTT UPTON HOOPER ADAMS BRIGGS GARDNER. 
 
 [July 20th. 
 
 thing I was saying was not without the leave of 
 the Convention, and that as long as I conducted 
 myself with propriety, I had the leave of the 
 Convention to proceed. But, Sir, it is my custom 
 to sit down when I ana called to order, and having 
 got a little used to it, it becomes natural for me 
 to sit down as soon as I see certain gentlemen 
 get up. [Laughter.] 
 
 Mr. ABBOTT, of Lowell. I was about to say, 
 when I was interrupted by the gentleman from 
 Salem, that if, by general consent, it can be un 
 derstood that the question shall be taken at ten 
 or eleven o clock to-morrow, I am quite content 
 that that arrangement should be made ; and I 
 think that with this arrangement my colleague, 
 (Mr. Adams,) will withdraw his motion for the 
 previous question. But, Sir, the responsibility 
 of this Convention is upon the majority, and if 
 we cannot have the general consent to fix some 
 time, at no very distant period, for taking the 
 question, I shall go for exercising the power of 
 the majority, and for enforcing the previous ques 
 tion now. 
 
 Mr. UPTON, of Boston. The minority of this 
 Convention have had some lectures read to them, 
 and, perhaps, the majority would not take it amiss, 
 if an humble member of the minority should read 
 a lecture to them. I can see around me members 
 of this Convention, certainly more than one gen 
 tleman, who had the honor some ten or twelve 
 years ago, of holding seats in the legislature, in 
 another part of this building. If I recollect 
 aright, the division of parties then was as eighteen 
 to twenty-two. I happened to be a member of 
 the dominant party, and I will say in regard to 
 that minority of eighteen, that they were a set of 
 men who were incessantly talking, much worse, if 
 anything, than even the minority of this Con 
 vention ; and it was necessary in some way to check 
 debate, and bring our labors to a speedy conclu 
 sion. Being a member of the majority, I pro 
 posed what I considered a very simple way to dis 
 pose of the whole thing, and that was, to let the 
 minority go on and talk, without any hinderance 
 on the part of the majority. Well, they did go 
 on and talk, and after they had made five or ten 
 speeches upon their side, and spoken all they 
 wanted to, we would then take the question, and 
 vote them down. I propose that the majority in 
 this case should allow us the minority to go on 
 and talk. If they are right in their propositions, 
 for Heaven s sake, give us a feeble chance to use 
 the few arguments which we may have. If they 
 are good for nothing, no harm can come, and the 
 majority can at all events vote us down. 
 
 Mr. HOOPER, of Fall River. I happened to 
 be one of those to whom the gentleman from 
 
 Boston, (Mr. Upton,) alludes, as I was a member 
 of the Senate at that time. I would remind the 
 gentleman, that it was under different circum 
 stances from those in which we are placed here, 
 that that course was pursued. In a body of only 
 forty-four, a majority of twenty-three could very 
 easily come to an understanding and settle such a 
 matter ; but it would be a very difficult matter to 
 decide this question by a lobby understanding, 
 and then come in here and be prepared to vote 
 down the minority. 
 
 The PRESIDENT. The Chair must remind 
 the gentleman that the question is upon ordering 
 the main question. 
 
 Mr. HOOPER. I stand corrected, but I was 
 only following in the track of other gentlemen. 
 
 Mr. ADAMS, of Lowell. Notwithstanding 
 the insinuations made by the gentleman from 
 Salem, (Mr. Lord,) I made the motion for the 
 previous question upon my responsibility as a 
 delegate to this Convention. I made that motion, 
 because I believed then, as I do now, that it was 
 the desire of the Convention, that debate should 
 cease ; but as it seems that a motion for the pre 
 vious question involves the history of the last 
 legislature, and the character of the gentleman 
 from Salem, (Mr. Lord,) and that a discussion of 
 these subjects would probably engross more time 
 than the question of the judiciary, which has been 
 before us for several days, I rise for the purpose 
 of withdrawing that motion, and make a motion 
 to lay the Orders of the Day on the table, so that 
 the gentleman from Charlestown, (Mr. Frothing - 
 ham,) may make a motion for an assignment of 
 a particular hour when the question shall be 
 taken. I therefore withdraw the motion for the 
 previous question, and move that the Orders of 
 the Day lie upon the table. 
 
 Mr. BRIGGS, of Pittsfield. It seems to me, 
 that this course is hardly necessary, for I believe, 
 judging from my own feelings, however, that the 
 unanimous voice of the Convention will be given 
 to such a proposition, liberal as I consider it to be. 
 If the Chair will submit the question, whether it 
 is the unanimous voice of the Convention, that 
 the question upon this subject shall be taken to 
 morrow at eleven o clock, it is the strongest 
 expression which we can have, and no one can 
 rise with a good grace, hereafter, and interpose any 
 objection. 
 
 Mr. GARDNER, of Boston. I rise to a ques 
 tion of order. I presume the gentleman from 
 Lowell, (Mr. Adams,) has no right to withdraw 
 the demand for the previous question, when the 
 yeas and nays have been ordered. If the Con 
 vention give unanimous consent to the gentleman 
 from Lowell, that he may withdraw his motion, 
 
212 
 
 THE JUDICIARY. 
 
 [62d day. 
 
 Wednesday,] 
 
 FROTHINGHAM HILLAKD. 
 
 [July 20th. 
 
 they may be understood as tacitly assenting to an 
 arrangement to take the vote to-morrow at eleven 
 o clock. 
 
 The question was then taken upon Mr. Adams s 
 motion, that the Orders of the Day lie upon the 
 table, and it was decided in the affirmative. 
 
 So the Orders of the Day were laid upon the 
 table. 
 
 Mr. FROTHINGHAM, of Charlestown. I 
 move that the question in relation to the Judiciary 
 be taken to-morrow, at eleven o clock. 
 
 The motion was agreed to. 
 
 On motion of Mr. FROTHINGHAM, the Con 
 vention then proceeded to the consideration of 
 the Orders of the Day. 
 
 The PRESIDENT. The question pending, is 
 upon the amendment of the gentleman from Fall 
 River, (Mr. Hooper,) and the gentleman from 
 Lynn has moved that when the question be taken, 
 it be taken by yeas and nays. 
 
 The yeas and nays were ordered. 
 
 Mr. HILLARD, of Boston. I would ask if 
 the amendment of the gentleman from Fall River, 
 (Mr. Hooper,) will not open the whole subject 
 for discussion ? 
 
 The PRESIDENT. The Chair rules that the 
 whole subject is open for discussion. 
 
 Mr. HILLARD. Whatever be our shades of 
 opinion, and to whatever party we belong, we all 
 agree in one thing in a habit of exaggeration 
 and over- statement in debate. We all magnify 
 the evils of a system we deprecate, and the bene 
 fits of that to which we wish to cling. While 
 opposing the amendment offered by the gentleman 
 from Worcester, (Mr. Knowlton,) to which I 
 shall confine my remarks, I wish at the outset to 
 make the magnanimous concession that I do not 
 believe that chaos will come again if we do adopt 
 that amendment in Massachusetts. I concede 
 that life, liberty, and property, and rights, will 
 still be secure in Massachusetts. The elements 
 that have given us a good judiciary hitherto, will 
 operate to give us a good one still, whatever may 
 be the tenure of office, and whether judges be 
 elected or appointed ; and those elements reside in 
 an enlightened state of public opinion, in a learned 
 and upright bar, and in the liberal compensation 
 which we give to the judges ; and therefore I 
 would admit that we have before us now, sub 
 stantially, a comparison of advantages and not of 
 disadvantages. I am willing to go a little far 
 ther, and admit that there may be some pos 
 sible advantage secured to us by adopting the 
 amendment of the gentleman from Worcester. 
 I admit, if there be a tendency in a judge to dis 
 courtesy of manner or habits of indolence and 
 procrastination, that periodical accountability may 
 
 serve to correct those tendencies ; but I think that 
 those advantages, if they be advantages, are more 
 than counterbalanced by the consideration that if 
 you apply the limited tenure you will have, in 
 the first place, to choose your judges from a region 
 of the bar inferior to that from which you now 
 can select them ; and that in the second place, you 
 impair the independence of the judiciary. In 
 regard to both of these positions I think there 
 can be no doubt. Take the case of a leader 
 at the bar, who is considering the question of a 
 seat upon the bench. He understands that he 
 must sacrifice one-half of his income, at least, by 
 so doing ; but he reflects that the function of a 
 judge is higher than that of an advocate that the 
 office is honorable and useful, dignified and secure. 
 He therefore consents, in consideration of these 
 equivalents, to a pecuniary sacrifice. But take 
 away the life tenure, make the seat insecure, and 
 you deprive it of one of its primal attractions. 
 The same class of men will no longer ever think 
 of going upon the bench ; and you will, therefore, 
 be compelled to extract your judges from an infe 
 rior stratum of the bar. As to the second position 
 which I laid down, that the independence of a judge 
 must be, and will be, impaired by the consideration 
 that at the end of a certain period his claim to a re- 
 appointment must be submitted to the pleasure of 
 the executive, it needs not to be maintained by any 
 course of reasoning. He who has not come to 
 this conclusion from his own self-consciousness, 
 and from his observation of humanity, cannot be 
 led to it by argument. There is no security for 
 judicial independence but that furnished by the 
 tenure during good behavior. My friend and 
 colleague, (Mr. Giles,) objects to the judicial ten 
 ure in Massachusetts because it is a freehold. I 
 thank him for that word. I rejoice that judges 
 in Massachusetts have their seats by a freehold, 
 and not a slave s-hold. Where you have depend 
 ence, you have some slight taint of slavery. I 
 use this word in no offensive sense. As inde 
 pendence and freedom are correlative terms, so 
 are dependence and slavery. That is what I 
 mean by the expression. I admired the adroit 
 ness of my colleague, (Mr. Giles,) in his choice 
 of language. In speaking of the judges, he con 
 trasted their independence of the crown in Eng 
 land, which he approved, with the support of the 
 people in America, which he said the judges need 
 ed. I admired his adroitness in avoiding the 
 words dependence on the people. In my judg 
 ment, as judges ought to be independent of the 
 crown in England, so they ought to be independ 
 ent of the people here. It is no answer to these 
 considerations to say that in point of fact, as a 
 general rule, the executive, in obedience to the 
 
62 d day.] 
 
 THE JUDICIARY. 
 
 213 
 
 Wednesday,] 
 
 HlLLARD. 
 
 [July 20th. 
 
 popular will, will reappoint a good judge. This 
 may or may not be true, and the question is : what 
 effect will the element of contingency, however 
 slight, have upon the judge himself? This will 
 depend upon his temperament. Will any one 
 give bonds that a faithful discharge of duty will 
 secure a reappointment ? If not, his future will 
 be darkened with doubt ; and so long as the mind 
 of the judge is like a pendulum, alternating be 
 tween hope and fear, his independence, and con 
 sequently his value as a magistrate, must be 
 impaired. 
 
 The gentleman for Wilbraham, (Mr. Hallett,) 
 wishes to make the bench accountable and respon 
 sible to the executive, and through him to the 
 people. As I understand these words, I deny 
 their application to the relation between the bench 
 and the people. One man is responsible or 
 accountable to another, when the latter has the 
 right to call the former to account, or make him 
 respond. Such is the relation between master 
 and servant, and principal and agent. A judge 
 is responsible to the legislature, because he may 
 be impeached or removed by address. He is 
 accountable to God and his conscience, as all men 
 are. He is amenable to public opinion, as are all 
 men clothed with public trusts. But that he is, 
 or ought to be, directly or idirectly responsible to 
 the people as such, I respectfully deny. For 
 what purpose is a judge put upon the bench? Is 
 it to do the will of the people ? By no means : 
 it is to do justice between man and man. In 
 doing this he may be called upon to act in direct 
 opposition to the will of the people. And can he 
 be, ought he to be, removed for that ? And if 
 not, how can he be said to be responsible to the 
 people. It is said that if you appoint judges for 
 life, why not choose the executive for life ? The 
 answer is found in the different functions of the 
 two departments. The executive is chosen to 
 execute the will of the people. The moment he 
 ceases to do that he ceases to stand in a proper 
 relation to them. He is, therefore, chosen often 
 enough to reflect the popular mind in all its 
 changing moods. The gentleman from New 
 Bedford, (Mr. French,) who took part in this 
 discussion, laid down some positions from which 
 I presume the gentleman for Wilbraham, (Mr. 
 Hallett,) would recoil. But I submit that the 
 difference between them is merely in degree and 
 not in kind. The former gentleman pushes to its 
 extreme that principle of popular accountability 
 which the latter laid down as a cardinal point in 
 his creed. One travels seven stages upon the road, 
 and the other to the end. 
 
 There have been cases in the history of this 
 country, where, I think, we can see that the ten 
 
 ure for years would have worked injuriously, or 
 at least, it might have done so. In the early part 
 of this century, there occurred at Richmond, 
 Virginia, a memorable trial, which some of the 
 elder members of this Convention will remember, 
 the trial of Aaron Burr, for high-treason. I sup 
 pose it is no injustice to the eminent person who 
 then occupied the executive chair of the United 
 States, to say that his feelings, both as a man, and 
 as a political leader, were strongly interested in 
 the result of that trial, and that his influence was 
 given, so far as it was consistent with the deco 
 rum of his high office, towards procuring the 
 conviction of that distinguished offender, if I may 
 so call him. The presiding judge at that trial, 
 was John Marshall, a man, who then and there, 
 as in his whole judicial life, presented the living 
 image of that ideal and perfect judge, so beauti 
 fully drawn by my distinguished colleague, the 
 attorney- gen oral, (Mr. Choate). John Marshall 
 was incarnate justice, embodied reason, and not 
 to speak it profanely, conscience made flesh. 
 Now had the judges of the supreme court of the 
 United States been appointed for years instead of 
 for life, in the first place, would such a man as Mar 
 shall have been likely to have been on that bench ? 
 And in the next place, would an average man, such 
 as the tenure for years would probably have se- 
 cxired, with his mind alternating between hope and 
 fear, as to his reappointment, have held the scales of 
 justice with so firm a hand as did that great man ? 
 Would he have resisted all external pressure, as 
 well ? Let those who can estimate the infirmities 
 of humanity, answer these questions for them 
 selves. 
 
 That eminent man passed through a long and 
 illustrious judicial life, and towards the close of 
 it, he was a member of the Constitutional Con 
 vention of the State of Virginia, and when he 
 was there this question of the tenure of the 
 judges came up, and I will ask the attention of 
 the Convention to listen for a moment to the 
 words of wisdom and truth which he then and 
 there spoke : 
 
 " The argument of the gentleman," he said, 
 "goes to prove, not only that there is no such thing 
 as judicial independence, but that there ought to 
 be no such thing that it is unwise and improvi 
 dent to make the tenure of the judge s office to 
 continue during good behavior. I have grown 
 old in the opinion that there is nothing more dear 
 to Virginia, or ought to be more dear to her 
 statesmen, and that the best interests of our 
 country are secured by it. Advert, Sir, to the 
 duties of a judge. He has to pass between the 
 government and the ;nan whom that government is 
 prosecuting, between t". e most powerful individ 
 ual in the commuritr ; a ad the poorest and most 
 unpopular. It is ol v, 2 last importance, that in 
 
214 
 
 THE JUDICIARY. 
 
 [62d day. 
 
 Wednesday,] 
 
 BOUTWELL. 
 
 [July 20th. 
 
 the performance of these duties, he should observe 
 the utmost fairness. Need I press the necessity 
 of this ? Does not every man feel that his own 
 personal security, and the security of his prop 
 erty, depends upon that fairness ? 
 
 " The judicial department comes home in its 
 effects to every man s fireside it passes on his 
 property, his reputation, his life, his all. Is it 
 not to the last degree important, that he should be 
 rendered perfectly and completely independent, 
 with nothing to control him but God and his 
 conscience ? " "I acknowledge, that in my judg 
 ment, the whole good which may grow out of 
 this Convention, be it what it may, will never 
 compensate for the evil of changing the judicial 
 tenure of office." " I have always thought from 
 my earliest youth till now, that the greatest 
 scourge an angry Heaven ever inflicted upon an 
 ungrateful and a sinning people, was an ignorant, 
 a corrupt, or a dependent judiciary." 
 
 Mr. President : I had other considerations to 
 urge, but the Convention does not seem to be in 
 a mood to listen, and therefore I obtrude myself 
 no farther upon their patience. 
 
 Mr. BOUTWELL, for Berlin. It seems to me, 
 Mr. President, that there are three main points in 
 the proposition of the gentleman from Worces 
 ter. I am opposed to the amendment submitted 
 by the gentleman from Fall lliver, (Mr. Hooper,) 
 and every proposition for an elective judiciary, 
 which contemplates the reelection of the same 
 individual. 
 
 I think it worth while to consider how far our 
 law tribunals should be independent, notwith 
 standing what has been said of the importance of 
 the absolute independence of the judiciary. I 
 would have the judiciary independent, so far as 
 this, that they may always feel at liberty, and 
 under the strongest inducements to do right ; but 
 a proposition which places the judges under any 
 motive, or gives them any other than such oppor 
 tunities for independence of the people as are 
 absolutely incident to the system, is certainly 
 wrong. By that, I mean to say, I go for an 
 independent judiciary so far as this : that they 
 may always be at liberty to give, and be protected 
 in giving, just decisions between man and man. 
 But an independence which leaves the judiciary 
 at liberty to be indolent in the discharge of their 
 duties, to be regardless of the rights of individu 
 als, and they are human as well as other men, 
 and they may, under some circumstances, be left 
 to disregard the rights of individuals, or even an 
 independence which goes no farther than this, 
 to leave the judges at liberty to be bad-mannered 
 to the bar, though I suppose the bar are able to 
 to take care of themselves, is, in my judgment, 
 wrong, and I wish the judges to be so dependent 
 that they shall always lespect parties and per 
 
 sons in court the witnesses and jurors especial- 
 
 iy- 
 
 Now, how does the proposition of the gentle 
 man from Worcester affect the appointing power ? 
 If it prevail, will the appointing power be as able 
 to select proper judges as now ? I take it, that 
 so far as the nomination is concerned, it does not 
 affect it, and therefore the appointing power re 
 mains the same. Another tribunal the Senate 
 is, however, the confirmatory body. Now it is 
 the Council. If the amendment of the gentleman 
 from Worcester prevails, the Senate will be the 
 confirming power. I have no great choice to 
 which of these tribunals these nominations are 
 sent. If the Council is made a popular body it 
 will represent the people of the Commonwealth, 
 but it will not be quite so much a popular body 
 as the Senate, inasmuch as each member of the 
 Council will represent a larger constituency. 
 But it does not appear to me that any essential 
 difference will result from sending the nomination 
 to one body rather than the other ; therefore no 
 great objection can be made on that head. Nor 
 will it happen, as suggested by the gentleman for 
 Manchester, (Mr. Dana,) that these appointments 
 will be much more frequent under the seven 
 years tenure than now. The judges of the court 
 of common pleas, on an average, according to the 
 statistics and they never lie hold their offices 
 five years, and the judges of the supreme court 
 hold theirs thirteen years ; therefore it will hap 
 pen that there will be about as many opportuni 
 ties for the exercise of the appointing power 
 under the existing as under the proposed system ; 
 and consequently, so far as regards the appointing 
 power, the new system is substantially the same 
 as the old one. 
 
 I come, now, to the next consideration that of 
 the character of the men who will be appointed 
 under the new system, as compared with the 
 character of those appointed under the existing 
 system whether the judicial standard will be 
 lower than heretofore. Gentlemen say you will 
 not get men of the same standing as lawyers as 
 the men that you get now, that gentlemen have 
 already been known to decline seats upon one or 
 the other of the benches of the Commonwealth. 
 It may be so, it is true ; but so far as I know, the 
 cases of declination are not of a nature to be 
 affected by the proposed change. E very-body 
 sees, that if a man goes upon the bench, and it 
 proves an unfortunate appointment, and he finds 
 it to be his duty to resign, his position in society 
 will be thereby affected, and his means of acquir 
 ing a livelihood will be affected also. It is like 
 wise true that a public position anywhere, in 
 the House of Representatives of Massachusetts, 
 
62d day.] 
 
 THE JUDICIARY. 
 
 215 
 
 "Wednesday,] 
 
 BOUTWELL. 
 
 [July 20th. 
 
 in the Senate, or in Congress, as well as upon the 
 bench, does affect unfavorably a man s position 
 as to the means of acquiring a subsistence in 
 other and different pursuits. There is no doubt 
 aboiit that ; but then it happens, notwithstanding 
 all these considerations, that men take these va 
 rious places. My friend from Salem, (Mr. Lord,) 
 has come to the general court for several years, 
 at a great pecuniary sacrifice, I have no doubt. 
 Other gentlemen do the same thing, knowing 
 that the moment they enter upon public life their 
 means of livelihood will be unfavorably affected. 
 Men do not decline these places. I do not believe 
 that one in ten of the cases of declination of a seat, 
 either upon the bench of the court of common 
 pleas, or that of the supreme court, has been on 
 account of the character of the office. Nor do I 
 believe that the declinations would have increased 
 if the tenure had been seven years, or ten years, 
 instead of a life tenure. These declinations do 
 not come from the character of the office, but are 
 in consequence of the fact that it is an office where 
 the salary is limited, and that it takes a man out 
 of his accustomed pursuits, for which he has 
 more taste than for judicial life. 
 
 I believe it will happen that men of the same 
 character will go upon the bench under a seven 
 years tenure as under a life tenure ; men who are 
 inclined to these offices will accept them, and men 
 who are not inclined, who prefer to remain advo 
 cates at the bar, will not go upon the bench, 
 whatever may be the tenure or salary that is, 
 whatever salary the Commonwealth will be likely 
 to establish. 
 
 Therefore, I come to the conclusion, on the 
 second point, that the standard of judicial charac 
 ter, will be as high under the proposed, as under 
 the existing system. 
 
 I come now to another point, and that is, 
 whether, in consequence of the limited tenure of 
 the office to seven or ten years, the character of 
 the judges will be affected ; that is, whether they 
 will be independent so far that they will render 
 just decisions and interpret the law correctly be 
 tween man and man in court. I proceed first on 
 the common and well-known principle that hon 
 esty is the best policy, and that if a man desires 
 a reappointment ever so much, he will see that 
 from mere motives of policy he should do the very 
 best that he can. In the first place, the appoint 
 ing power possess a degree of intelligence, I take 
 it, when it is confided to forty-one men, selected 
 from the Commonwealth, which will save it from 
 those influences which are merely popular in their 
 nature. And secondly, there will ever be in 
 Massachusetts, in the executive department, and 
 in the Senate, an amount of intelligence which 
 
 will enable these two departments of the govern 
 ment to discriminate between that opposition 
 which is popular, transitory, and unfounded, some 
 times existing against upright persons, and that 
 opposition which is really and substantially based 
 in the incompetency of the man. And if that is 
 not so, if it be true that these two departments of 
 the government will be unable to determine 
 whether the opposition which may exist against a 
 reappointment is a well or ill-founded opposition, 
 I take it that our government, for all purposes of 
 good, is substantially at an end. 
 
 Now, with this view, believing inthe first place 
 that the appointing power will be equally compe 
 tent; that secondly, the judicial standard will be 
 as high; and in the third place, that the judicial 
 character will be as pure, I come to the conclu 
 sion that the proposition submitted by the gentle 
 man from Worcester, is altogether safe. 
 
 Now, what are its advantages ? I have only 
 one thought to submit in reference to the advan 
 tages to be derived from a limited tenure. It has 
 happened in Massachusetts, it has happened in 
 every State in this Union, that men have been 
 appointed to seats on the bench who were unfit 
 for the places. Some of them were known, per 
 haps, by those who were intimate with them, to 
 be unfit when appointed, but all the facts were 
 not before the appointing power. It has also 
 happened that some men, very well fitted for ad 
 vocates at the bar, fail altogether upon the bench. 
 Now, it is a great public calamity that a man 
 should be appointed under a life tenure to a seat 
 on either bench in this Commonwealth, who 
 proves incompetent to the discharge of its duties. 
 And I think that if there were hardships, if there 
 were even evils growing out of the proposed 
 change, very many of them would be fully com 
 pensated by this consideration ; that under this 
 limited tenure, you have an opportunity to get 
 rid of a bad judge. A judge may be very bad I 
 do not know much about courts, but I know 
 something of human nature and a judge may be 
 very bad, and yet keep himself so far within the 
 line of duty that he is not subject to removal by 
 address or impeachment. I think that the limited 
 tenure will operate well. Our good judges will 
 be continued. There is a conservative feeling in 
 Massachusetts, and if a judge during seven years 
 shall sit impartially, shall hold the scales of justice 
 even between man and man, whatever may be 
 his political opinions, I say there never has been 
 an administration strong enough to resist that 
 popular voice which will demand his reappoint 
 ment. And on the other hand, if it shall happen, 
 as it has happened, and must happen, that occa 
 sionally you get a judge unfit for the duties he is 
 
216 
 
 THE JUDICIARY. 
 
 [62d day. 
 
 Wednesday,] 
 
 GRAY. 
 
 [July 20th. 
 
 called to perform, this is the best way, without 
 public action or general effort, to remove him. 
 Now, then, trusting to the people, the executive 
 and legislative departments as the representatives 
 of the people, and wishing to have a conservative 
 and just influence which will ever protect a man 
 in Massachusetts, in the faithful discharge of his 
 duties as a judge, I am ready, for one, to vote for 
 the proposition submitted by the gentleman from 
 Worcester. 
 
 Mr. GRAY, of Boston. As this question has 
 been so long and so ably discussed, and most of 
 the arguments which could be adduced upon it, 
 are exhausted, I trust that the Convention will 
 do me the justice not to expect that I can offer 
 much that is new or unknown, and I shall en 
 deavor not to offer much in quantity, but confine 
 myself simply to a few suggestions which have 
 occurred to my mind. I should not perhaps 
 have done this, was there not an important point 
 in this question, which has been ignored, and 
 overlooked in the discussion of this subject, and 
 especially by those gentlemen who have spoken 
 upon the opposite side. From their remarks, it 
 would seem as if we based this proposition to con 
 tinue the tenure of the judicial office as it is, on 
 English experience. Now, Sir, I throw aside all 
 the experience of England. When the Conven 
 tion of 1780 assembled, they had none but En 
 glish experience to enlighten them in their legis 
 lations upon this subject ; and the same argu 
 ments which have, during this debate been urged 
 against the existing tenure, would have been 
 exceedingly appropriate at that day. But I am 
 guided by the experience of America, by the 
 experience of more than three score years and 
 ten ; and what has it been ? Let gentlemen open 
 with me the volume of the history of Massachu 
 setts, and I submit to them and to you, Sir, if 
 there is a prouder page in it, than that which 
 records the history of its judiciary ? We have 
 had judges for the last seventy years ; they must 
 have been somewhat numerous in the course of 
 that time, and yet has there ever occurred a single 
 instance where a judge has been accused of hold 
 ing the scales of justice in an unequal and partial 
 manner, upon the bench he occupied ? We have 
 had at times, it is true, judges who have been 
 obnoxious to large portions of the community, on 
 account of their extra judicial conduct, so to 
 speak ; who have been held up as politicians by 
 one party, and of course zealously opposed by the 
 other ; subjected to the attacks of their adversaries 
 who, in Oie depth of their animosity, would 
 gladly have seized upon any charge of partiality 
 or injustice of the bench, had it been vulnerable 
 upon that point, as the strongest argument that 
 
 could be brought to bear against them. But, 
 notwithstanding these animosities, never, to my 
 knowledge, has a judge sat upon any bench in 
 our State, who has ever been, or ever could be, 
 accused in the slightest degree, of soiling his 
 ermine, or who has not been honored for the 
 uprightness, the ability, and impartiality with 
 which he has discharged the duties of his office. 
 I would ask, then, is it any ultra conservatism ; is 
 it any blind reverence for what is old ; is it, to use 
 a more popular than elegant expression, any old 
 fogyism, that makes gentlemen hesitate in depart 
 ing from a system which has been productive of 
 so many beneficial results, and brought forth so 
 many good fruits ? For one, I am not disposed 
 to change at all, certainly so long as the maxim 
 of old holds good : that by their fruits we shall 
 know them ; which has both reason and Scripture 
 for its foundation. 
 
 My friend for Berlin asks the question whether 
 we are in any danger of lowering the judicial 
 character ? and here is where, in my opinion, the 
 whole merits of the question rest ; and it is here 
 that I take issue with him. Everything else is 
 comparatively unimportant. Now, there is one 
 argument upon this point to which I think allu 
 sion has not been made or if so, it has been in 
 an indirect manner which is this : under our 
 present judicial system, when a judge is ap 
 pointed, he knows that he can occupy his situa 
 tion so long as he behaves himself with ability 
 and integrity; and that there are only two pro 
 cesses of removal, one of which is by impeach 
 ment, and the other by an address of the legisla 
 ture. He feels that he is not to be brought up as 
 a candidate for reelection every seven years, sub 
 ject to all the vicissitudes of change in party or 
 sentiment, but is to retain his office in peace and 
 quietness during his life ; in a word that he i s 
 provided for. And what is the consequence ? 
 He may be called by the people to occupy a 
 higher position in the arena of life, or some extra 
 ordinary event of the kind may occur ; or it may 
 please Divine Providence to remove him by death 
 at an early day ; but aside from these contingen 
 cies, he considers himself fixed, stationary for 
 life, and he gives his whole attenion, Ms heart to 
 the duties before him ! His soul is in his work ! 
 I utter these words with emphasis, because they 
 are significant, and in the present instance have 
 more than an ordinary meaning. With his fam 
 ily around him, and provided for, he feels no 
 solicitude in regard to what he shall do for them 
 seven years hence ; he feels that he will not be 
 compelled, at the expiration of his term of office, 
 to prepare himself once more, and enter the field 
 with younger competitors, when he has not had 
 
62d day.] 
 
 THE JUDICIARY. 
 
 217 
 
 Wednesday,] 
 
 OKAY. 
 
 [July 20th. 
 
 an opportunity to make himself capable of meet 
 ing them in that capacity. 
 
 Sir, the work of a judge, as gentlemen well 
 know, is very different from that of an advocate, 
 requiring great judgment and discretion, and the 
 highest order of talent, from the fact that he is 
 compelled to cope with the greatest genius of the 
 land. I do not mean that every judge must have 
 the intellectual capacity of a William Wirt, or a 
 Daniel Webster ; there could be few candidates 
 for such an office, if we exacted that ; but he is to 
 meet the shrewdest men in the land, sift their 
 arguments, guard against their sophistry, and 
 regard the case in question fairly and clearly, 
 when the ingenuity of the ablest men in the 
 community is engaged in throwing a false light 
 upon it ; he has to do justice between party and 
 party in the matter of property ; and not unfre- 
 quently has he to administer justice and mercy 
 to the poor criminal who stands before him plead 
 ing for life and liberty. In a word, we commit 
 to him the highest power ; I mean the power of 
 fixing the sentences of criminals brought before 
 him, for any period from one day in the House 
 of Correction, to imprisonment for life in the 
 State Prison. 
 
 But the question has been asked, does it not 
 make them too independent, to allow them to 
 retain their office for an unlimited time? I reply, 
 as I have before stated, that for any positive fault 
 or misdemeanor, they are liable to be removed by 
 either one of two processes : first, by impeach 
 ment ; and next, by an address of the legislature. 
 Will not this satisfy gentlemen ? Here is the 
 legislature, the most important of any of the 
 departments of government, the branch that make 
 our laws ; and that body can, with the concur 
 rence of the governor and by a simple majority 
 only, remove any person holding judicial author 
 ity, against whom the charge of misdemeanor can 
 be satisfactorily sustained. 
 
 There is another point to which I think allu 
 sion has not been made : In my own political 
 experience, which has been neither the longest 
 nor the shortest of many in this body, I have seen 
 governors of all parties, those who have been 
 opposed to what has been my constant political 
 creed, as well as those in favor of it, appoint 
 judges for life ; and in all cases of that kind, 
 without a single exception in my knowledge, they 
 have felt the weight and responsibility which 
 rested upon them in the discharge of that duty, 
 and acted accordingly. It may be that they have 
 appointed gentlemen of their own particular way 
 of thinking upon political subjects, but they have 
 ever been able, competent, and upright men; 
 who, while they have occupied the bench 
 
 15 3 
 
 whether like the present attorney- general of the 
 United States, for a few months ; or whether, like 
 the late lamented chief justice Pai ker, who occu 
 pied it for more than fifteen years have con 
 ducted themselves with discretion and ability. 
 If, however, it should be found that a judge was 
 not competent to discharge the duties of his office, 
 he would be glad enough to vacate the bench, to 
 save himself from the disgrace and mortification 
 which would be consequent, without being com 
 pelled to do so by a peremptory removal. But 
 my friend for Berlin says that the governor will 
 reappoint them. I wish there might be such a 
 state of things. I wish there might be such a 
 state of things as Thomas Jefferson prayed for, 
 but which has never come to pass, when the only 
 question to be asked in such cases, would be : 
 " Is he honest ? Is he capable ? Is he attached 
 to the Constitution?" But Thomas Jefferson, 
 when he asked that question, went contrary to 
 its doctrine : for he said the state of things did not 
 permit his following that rule. I have nothing 
 to do with his conduct in that case, and make no 
 comment, favorable or unfavorable, in regard to 
 it. But, Sir, will it not always be so ? How is 
 it in the United States government, and what is 
 the course of a new president when he comes 
 into office, especially Avhen a new and important 
 officer is to be appointed ? Does he not turn out 
 men acknowledged to be able and competent, 
 that he may fill their place with others ? All 
 new presidents pursue this course. And it is a 
 nmeh easier, a much less irksome and trying 
 process, to avoid reappointing men, than it is to 
 turn them out. 
 
 The question asked, is not merely upon the 
 capability of men, but also upon their political 
 principles. It is expected that the president will 
 reward his friends, not those who are dishonest, 
 but those who are qualified to discharge the 
 duties of their office; and others who perhaps are 
 just as capable, but belonging to the opposite 
 party, aie accordingly removed, to make way for 
 them. 
 
 I should be very glad to agree with my friend 
 for Berlin, who differs with me, could I do so 
 consistently with the views which I at present 
 entertain ; and I assure him that I would never 
 more willingly be found wrong than in the 
 present instance. I do admit that if we limit the 
 tenure of the judicial office to seven years, that 
 that there may be a \vay of keeping up the dig 
 nity and character of the judiciary ; but it is a 
 way which, if it be advisable, is certainly imprac 
 ticable. The judge who takes the office for seven 
 years only, will demand a great remuneration for 
 the sacrifice of the large income of his profession 
 
218 
 
 THE JUDICIARY. 
 
 [62d day. 
 
 Wednesday,] 
 
 GRAT. 
 
 [July 20th. 
 
 which would cesult from the total interruption of 
 his business, for such would be the case. He 
 would require a salary of perhaps five, six, or 
 seven thousand dollars a year; or you would 
 have to select some other person, perhaps, not 
 half so competent. The people, too, would be 
 opposed to raising the salaries to such an extent 
 as would necessarily be required. But how is it 
 that men are induced to accept the office under 
 the present circumstances ? My friend says that 
 there are but few declinations. I do not dispute 
 his word ; he has been in a situation to know 
 more upon than subject than myself; but I ven 
 ture to say that there have been more persons 
 who have declined to take the judicial office than 
 either that gentleman or myself may be aware of. 
 He alluded also to the great sacrifice made by 
 some gentlemen who were members of the legis 
 lature. I admit that there are some who do 
 make great personal and pecuniary sacrifices, for 
 the time being, in coming here ; but there are 
 others very differently situated. I have no doubt 
 that my friend from Salem, (Mr. Lord,) among 
 other gentlemen, experiences no little sacrifice of 
 time and money, by his absence from his sphere 
 of duty ; but how long does it last ? I have had 
 but little experience myself, but I should suppose 
 that it would be a pleasant relaxation from the 
 laborious duties of the legal profession, to come 
 up here and attend to the affairs of the State. 
 
 I come back to the point, however, to which I 
 alluded in the beginning of my remarks, because 
 it is the point which has the greatest weight in 
 my mind. I trust that we shall not make any 
 change in the tenure of the judicial office, as has 
 been proposed ; but I hope that the judges will 
 be allowed to occupy their position so long as 
 they do their duty, and satisfy the public ; and if 
 they continue in it for a longer time than that, it 
 will be for the legislature to take the necessary 
 steps for their removal. I have never heard, 
 however, of but one instance where a judge has 
 been removed by address, or where the people 
 desired to have him so removed. 
 
 If gentlemen desire to ascertain the character 
 of our judges, let them go to the juries, let them 
 inquire of members of the bar, let them ask the 
 people of the country, and they will obtain a 
 ready response. 
 
 As E have said before, there has never existed 
 a higher tribunal of justice than that of the su 
 preme court of the State of Massachusetts ; it is 
 known not only for its integrity, but for the abil 
 ity and legal acumen which are its chief .charac 
 teristics. Our reports are read where any are 
 read, and that too by a people not accustomed to 
 think too highly of their cousins on this side of 
 
 the water. We have the highest testimony of 
 England, in regard to the ability and justice dis 
 played in the reports and decisions of our judi 
 ciary. Under these circumstances, are we not 
 excusable, and justified in hesitating to make a 
 change in the tenure of office so important as 
 this? 
 
 Now, there is one time of life when I think it 
 would be a great inducement to accept an office 
 of this character, and continue in it permanently. 
 There is an age of life, that is, between forty 
 and fifty years, when the constant toil and ac 
 tive habits resulting from the frequent collision 
 of members of the bar, begins to wear upon 
 men ; when they find that they are becoming old 
 not superannuated by any means but less 
 calculated for the laborious duties of an advocate 
 than in the early part of life. Then is the season 
 when, if they are qualified, they are better adapted 
 for the quiet labors of a judge, for those duties 
 which befit the calm of their declining years. 
 Who would have wished that Marshall should 
 have left the bench at sixty years of age ? Who 
 would not have desired that Kent should have 
 remained beyond sixty, had not the hour struck 
 which, by the Constitution of the State of New 
 York, sent him from his seat. And yet sixty 
 years is full old for active legal practice. 
 
 But, on the contrary, go to a man who occupies 
 an active position as a practising lawyer, a man 
 of talent, one who possesses all the essential attri 
 butes of a good judge ; ask him to accept that 
 office, and how will he reason ? He will say, by 
 my practise I am now making several thousand 
 dollars a year, and I am unwilling to give that up 
 for the sake of a mere temporary office, with the 
 prospect, in a few years, that I shall be compelled 
 to vacate it and return to my practise, which will 
 then require more activity than will be suited to 
 my temperament ; but give me this place with 
 the privilege that if I demean myself in a proper 
 manner, I can hold it until I am seventy years 
 old or more, and I will accept it. This is the 
 manner in which he will consider the subject. 
 The office of judge is one that is, and has ever 
 been, held in high honor, I had almost said idol 
 atry, by the people of Massachusetts ; and they 
 desire to see it ably occupied. Let gentlemen go 
 into any town where a court is in session, and 
 see how the judge is looked up to with respect 
 and honor by every one present. 
 
 It is for these reasons, agreeing entirely that 
 my friend for Berlin has stated the issues fairly, 
 but believing that we shall tear down this stand 
 ard of judicial officers, and that we shall not have 
 the men of talent and worth that we have had 
 during the past ; believing, farther, that it has 
 
63d day.] 
 
 THE JUDICIARY, &c. 
 
 219 
 
 Thursday,] 
 
 RANTOUL WILSON TYLER EARLE BATES DANA. 
 
 [July 21st. 
 
 been overlooked in the consideration of this sub 
 ject, that the power of impeachment which still 
 exists will effectually check corruption, if there 
 be any ; believing farther that the power of removal 
 by address of the legislature, is a sufficient pro 
 vision against all incompetency, I feel compelled 
 to vote against this motion to shorten the tenure 
 of the judicial office. 
 
 Mr. SCHOULER, of Boston. Believing, Sir, 
 that we have heard enough upon this subject for 
 one day, and that we are so full we can take in 
 no more, I move that the Convention do now 
 adjourn. 
 
 The question being put, a division was called 
 for, and it was ascertained that there was no 
 quorum voting. The President pro tern, then, at 
 six o clock, declared the Convention adjourned. 
 
 THURSDAY, July 21, 1853. 
 
 The Convention assembled pursuant to ad 
 journment, and was called to order at nine o clock, 
 by W. S. Robinson, Esq., one of the Secretaries 
 to the Convention, the President being absent in 
 consequence of indisposition. 
 
 Prayer by the Chaplain. 
 
 Election of President pro tempore. 
 
 The Secretary read the eighteenth rule of the 
 Convention, which directs that he shall preside, 
 in case of the absence of the President at the 
 hour to which the Convention was adjourned, 
 until a President pro tempore, shall be appointed, 
 which shall be the first business before the Con 
 vention. 
 
 Mr. RANTOUL, of Beverly, moved that the 
 Convention proceed to the election of a President 
 pro tempore, by nomination. 
 
 The motion was agreed to. 
 
 Mr. RANTOUL nominated HENRY WILSON, of 
 Natick, and moved that he be President pro tem 
 pore, of the Convention. 
 
 The motion was unanimously agreed to. 
 
 The Secretary appointed Messrs. Briggs, of 
 Pittsfield, and Boutwell, for Berlin, to conduct 
 Mr. Wilson to the chair. 
 
 Mr. WILSON, upon taking the chair, said : 
 Gentlemen of the Convention : I thank you for 
 this expression of your confidence and kindness. 
 I shall endeavor to discharge the duties assigned 
 me, with fairness and impartiality. 
 
 Appendix to the Debates. 
 
 Mr. TYLER, of Pawtucket, submitted the 
 following order : 
 
 Ordered, That the Committee on Reporting and 
 Printing, be instructed to append to the published 
 Debates, Poole s Statistical View of the Members 
 of the Convention. 
 
 Mr. TYLER. I beg leave just to remark, that 
 the proceedings of the New York Constitutional 
 Convention in 1846, contain a similar table to 
 this, and I hope that this may be appended, and 
 that the meritorious author may obtain an hono 
 rary degree from some of our colleges. 
 
 Mr. EARLE, of Worcester, moved to amend 
 the order, by inserting after the word " Conven 
 tion," these words : "with the amount received 
 by each for travel and attendance." 
 
 Mr. BATES, of Plymouth. Before the vote 
 is taken, I hope the Convention will consider, for 
 a moment, what the proposition is. It is to ap 
 pend to the published Debates of this Convention, 
 a private document belonging to a gentleman 
 who has published it for his own private emolu 
 ment. Perhaps he will have something to say 
 about our taking it. 
 
 Mr. BOUTWELL objected to the considera 
 tion of the order at this time, and asked that it 
 lie over. 
 
 In obedience to the rule, the order lies over. 
 
 Permission to submit a printed Report. 
 
 Mr. BOUTWELL, for Berlin, asked and ob 
 tained permission, for the Committee on Revision 
 to make their Report in print. 
 
 The Judiciary. 
 
 Mr. DANA, for Manchester, desired to be in 
 formed by the Chair, in order to determine the 
 form of a motion which he desired to make, 
 whether the amendment submitted yesterday, by 
 the gentleman from Fall River, to the resolves on 
 the subject of the Judiciary, was an amendment 
 to an amendment, or whether it was itself sus 
 ceptible of being amended. 
 
 The PRESIDENT. It is an amendment to an 
 amendment. 
 
 Mr. DANA. That being the case, we are in 
 this situation : no amendment can be offered now, 
 because there is an amendment to an amendment 
 already pending. The question on the amend 
 ment to the amendment, cannot be taken until 
 eleven o clock, and 
 
 The PRESIDENT. The Chair must remark, 
 that the Orders of the Day are not under consid 
 eration. 
 
 Mr. DANA. No, Sir. And the motion 
 which I wish to make, would not be in order if 
 they were. 
 
220 
 
 THE JUDICIARY, &c. 
 
 [63d day. 
 
 Thursday,^ 
 
 BOUTAVELL SUMNER. 
 
 [July 21st. 
 
 Hour of Adjournment. 
 
 Mr. BOUT WELL, for Berlin, moved that two 
 o clock, instead of one, be fixed as the hour of 
 adjournment during the remainder of the session. 
 
 The motion was, upon a division agreed to 
 ayes, 99 ; noes, 56. 
 
 Orders of the Day. 
 
 On motion by Mr. BOUTWELL, the Con 
 vention proceeded to the consideration of the 
 Orders of the Day. 
 
 The first subject in order being the resolves on 
 the subject of 
 
 The Judiciary. 
 
 The pending question being on the amendment 
 moved by the gentleman from Fall Iliver, (Mr. 
 Hooper,) to the amendment of the gentleman 
 from Worcester, (Mr. Davis). 
 
 Mr. SUMNEll, for Otis. I trust that it will 
 not be supposed from the effort I made to obtain 
 the floor yesterday, that I am very anxious in re 
 lation to this great and important subject now 
 under consideration, because I have lived long 
 enough, and have had experience enough in the 
 judicial tribunals of this Commonwealth, to un 
 derstand this fact, that almost any judicial system 
 which might be adopted and put into operation 
 in this Commonwealth, would be made, perhaps, 
 to a fair extent, to work tolerably well. Whether 
 life tenure, limited tenure, appointment by the 
 executive, or election by the people whichever 
 system should be adopted, it would be, as I appre 
 hend, sustained by the people, and measurably it 
 would effect its great purpose, viz. : the adminis 
 tration of justice. But, Sir, of different modes, 
 I think there is a choice. We have hitherto ex 
 isted under a judicial system of judges appointed 
 by the executive, and appointed for life; and 
 there is a great portion of the people, undoubtedly, 
 who entertain towards that system although 
 they may not, perhaps, prefer it to all other sys 
 temsa great degree of respect. Unquestionably 
 a proposition materially changing the present 
 system will meet with opposition ; there is a 
 disposition, at least, to give to any proposition for 
 change, a very thorough and close examination ; 
 and this feeling is to be countenanced and favored. 
 Sir, in the discussion which has taken place here 
 in my hearing for I have not been able to be pre 
 sent in all the debates upon this subject I have 
 been very forcibly reminded of a series of dis 
 cussions which I had an opportunity to hear 
 some twenty years since, upon this same floor. 
 There is in this Commonwealth a semi-judicial 
 board of officers, namely, county commissioners. 
 As originally created, they held their offices by 
 
 executive appointment, and this continued for 
 several years. Finally, however, there was a feel 
 ing pervaded the Commonwealth, to a considera 
 ble extent, in favor of a change in the manner of 
 appointing these officers ; as is well known. The 
 people demanded, in somewhat loud terms, that 
 the appointment of these officers by the executive 
 should be changed, and that the people should be 
 permitted to elect them. They accordingly prefer 
 red their applications to the legislature, and these 
 applications for a long time met with precisely 
 the entertainment that the proposition meets with 
 here in regard to the change in our system as to 
 the appointments of the judges of the court of 
 common pleas, and of the supreme court. It 
 was said, in the first place, that it would be un 
 constitutional ; that if the legislature should pass 
 a law giving the election of this board of officers 
 to the people, the supreme court, upon a proper 
 process bringing the question before them, would 
 set the proceedings all aside, because, forsooth, 
 tin s was a judicial office, and under the Constitu 
 tion, the executive, and the executive alone, was 
 competent to appoint. That argument had its 
 weight, and its influence. But, the greatest diffi 
 culty anticipated, and which was put forth as an 
 argument by those who resisted the proposal to 
 make these officers elective, was that it would 
 create confusion, disorder and trouble ; that there 
 would be conflicting interests in different locali 
 ties ; that men of influence, having this or that 
 purpose to subserve, would enter into the arena in 
 regard to the selection and choosing of these offi 
 cers ; that there would be no such thing as inde 
 pendence on the part of the incumbent ; that they 
 would, in their conduct, favor their friends and 
 supporters ; that they would resort to improper 
 efforts for the purpose of securing their election, 
 and that the consequences would be disastrous" ; 
 and, beyond all this, it was believed, that it would 
 be a great entering wedge which applied to the 
 entire judicial system, would finally rive it asun 
 der, so that the whole system, so honored, and so 
 cherished, would fall to ruin, and beneath that 
 ruin our liberties would be buried. Well, Sir, 
 all those arguments produced an effect ; the legis 
 lature looked at the matter and considered it, and 
 finally, with great trembling, concluded to make 
 this mighty and fearful experiment, and they gave 
 the people the authority claimed. AVe have tried 
 the experiment, and we find ourselves yet alive 
 and above-board, like Belzoni s mummy, " re 
 visiting the glimpses of the moon," without being 
 destroyed. I have heard almost the same argu 
 ments in this Convention in relation to the change 
 now proposed in our judiciary system, which I 
 heard here in 1834, in respect to county commis- 
 
63d day.] 
 
 THE JUDICIARY. 
 
 221 
 
 Thursday,] 
 
 SUMNER. 
 
 [July 21st. 
 
 sioners, and I could almost believe, that there 
 were yet remaining, in some of the historical 
 archives of the city, some of the old papers of 
 that day, in which were set forth, not so eloquent 
 ly, perhaps, or so forcibly, as the arguments of 
 my friend from Boston, (Mr. Schouler,) or the 
 member for Manchester, (Mr. Dana) ; but yet, 
 some arguments, certainly, very much like them. 
 After all, I am satisfied that a plan for an elective 
 judiciary with a limited tenure, may be safely 
 adopted. 
 
 I wish, Mr. President, to enforce the idea 
 which I have already suggested, that there is 
 amongst the people of this Commonwealth an 
 ever- abiding sentiment of affection and respect 
 towards the judiciary of the State. We are all 
 interested in its preservation, in its upright 
 ness, in its faithfulness, in its high character 
 throughout ; and it is upon this great fact that I 
 think we may safely rely in giving the people 
 power in relation to the formation of the judici 
 ary, the choice of judges, and the preservation of 
 the system. If different feelings prevailed if 
 there was a feeling of contempt towards that 
 branch of the government if there was a senti 
 ment of disrespect, or anything bordering on dis 
 respect towards the judiciary, we might well 
 pause before we gave into the hands of the people 
 any power to touch it ; we might let the appoint 
 ments be made by some authority beyond the 
 control of the people, for the reason that the 
 people would not be safe depositories of trust, in 
 relation to it, because of popular aversion to its 
 power and authority, and not holding it in proper 
 regard. 
 
 Now, Sir, what is it that the people desire ? 
 They desire learned judges men who are capa 
 ble, honest, faithful, pure-minded, independent ; 
 such is the all-pervading sentiment throughout 
 the whole community. That is the wish, and the 
 sole wish of the people ; and such being the fact, 
 it is of great consequence to preserve this senti 
 ment. But, Sir, I think that any one who looks 
 at the present condition of tilings, concerning the 
 judiciary, and I certainly am not going to stand 
 up here to arraign or impeach its members, will 
 be satisfied that it not only is becoming, but per 
 haps has become a matter of necessity that there 
 should be some modification of the system, in 
 order that this respect may be preserved. Let us 
 suppose a state of affairs, in order to illustrate my 
 views. Suppose, notwithstanding a desire to 
 sustain the judges, it should happen, in the course 
 of things, that when the members of the legal pro 
 fession, with their clients, should visit the court 
 house, at term-time, and find upon the bench 
 Judge A., or Judge somebody else, and instead 
 
 of their going forward and trying their causes, 
 the counsel and clients should all consent to con 
 tinue their cases, preferring to take their chance 
 when some other judge, less obnoxious, should 
 hold the court. Suppose, too, in addition to this, 
 that it is impossible to touch any judge, except in 
 one way, and that one which is most obnoxious 
 and abhorrent to the feelings of the people, viz. : 
 by address to the executive for removal. Nobody 
 wants to resort to that. The legislature may 
 address the governor to remove a judge ; and he 
 has authority, with consent of council, to cause his 
 removal ; but that provision in the Constitution 
 is but a dead letter. Nobody wishes to go to the 
 legislature, nor do the legislature want, of their 
 own motion, to say to the executive : " We wish 
 to have removed from office a judge who has 
 been ill-advisedly placed upon the bench." 
 
 . Now, Sir, if such a state of things were to 
 exist, and perhaps it may exist, would it not 
 affect the kindly and desirable sentiments of the 
 people towards the judges ; and would it not of 
 itself form a good reason for some constitutional 
 modification or change as to the construction of 
 our judiciary, and the appointing of our judges ? 
 Without pursuing this subject any farther and 
 I repeat, without making myself any arraignment 
 of the present judges I have to submit, that I do 
 believe a majority of the people of Massachusetts 
 desire there should be some change in our judicial 
 system ; and I do not accord at all to that senti 
 ment which seems to find some favor in different 
 parts of this Convention, that it will not do to pre 
 sent this proposition to them because they are not 
 ready to adopt it. I am decidedly in favor of the 
 proposition for a limited tenure. I think that we 
 have favored this system of life tenure so long 
 that it is one of the worn out things in old Mas 
 sachusetts, and that young Massachusetts requires 
 some improvement in this behalf. When regard for 
 any institution becomes impaired, though slightly, 
 it is wise and prudent to see if some change cannot 
 be made, that will restore confidence and respect. 
 I shall vote, therefore, if I have an opportunity, 
 in favor of the proposition for a limited tenure ; 
 and if the judiciary be made elective, I would most 
 heartily concur in the proposal as to the length 
 of tenure suggested yesterday, by the learned gen 
 tleman from Boston, (Mr. Giles). I would prefer a 
 longer tenure than that which is embraced in the 
 resolution offered by the gentleman from Wor 
 cester ; but still, Sir, if it is the voice of the 
 Convention that that should be the tenure, I 
 have no fears whatever in regard to the trial of 
 that proposition. I would prefer a longer time, 
 if the judiciary be elective. I would propose 
 such a tenure as that it should be an object to 
 
222 
 
 THE JUDICIARY. 
 
 [63d day. 
 
 Thursday,] 
 
 SUMNEB BARTLETT BUTLEK. 
 
 [July 21st. 
 
 men of talent, honesty, and character, to take 
 judicial office; and for that purpose I would 
 rather favor a proposition for fourteen years than 
 for seven years. 
 
 And, Sir, I have no fears upon the subject of 
 the eligibility of the incumbents for reflection ; 
 for, in my belief, if there is anything fixed in the 
 minds of the people in relation to this subject, it 
 is that they are in favor of men for the bench 
 who are aloof, and will stand aloof from the polit 
 ical field. I do not think like many gentlemen 
 here, that the great criterion in relation to the 
 selection of judges, will be made at all, or to any 
 alarming extent, to depend upon the political 
 preferences of gentlemen who may be brought 
 forward for judicial offices. I believe, Mr. Presi 
 dent, that the people understand perfectly well, 
 that it is for their interest to have " good men and 
 true," for their judges ; and I have yet to learn, 
 that in an intelligent Commonwealth like this, 
 they will be likely to act in a manner adversely to 
 their interests. Is it not for the interest of every 
 man, woman and child, high and low, rich or 
 poor, in the State, that those who are invested 
 with authority to pass upon their rights in the 
 judicial tribunals, should be men of tried integ 
 rity, of sterling merit, of ability, and learned in 
 the law ? Is not all this for their interest, and 
 will not the people act according to what is for 
 their interest in the selection of their judges ? 
 Who doubts the fact ? 
 
 Mr. President : I do not wish to take up time 
 by scrutinizing, at this moment, with any great 
 particularity, the different propositions which are 
 before us, either as to the principal resolution, or 
 the amendments offered. I think, Sir, that con 
 siderable improvement may be made in relation 
 to them, and farther amendments will probably 
 be offered ; and I suspect we shall have no great 
 difficulty in completing in proper form the propo 
 sitions, so that they may be made acceptable. 
 
 And now, Sir, one word in regard to those 
 fears which are entertained in respect to ingraft 
 ing this proposition in the proposed Constitution 
 which is to be sent out to the people. I believe, 
 with the gentleman from Easthampton, who 
 briefly addressed us yesterday, that it is one of 
 the calls of the people, that the very changes 
 which we are now considering, should be sub 
 mitted to them ; and I agree with him, that one 
 of the most acceptable propositions, as I appre 
 hend, which can be presented to them, would be 
 that we should give into the hands of the people 
 the power of electing their judges, with limited 
 tenures. 
 
 Mr. BARTLETT, of Boston. In the present 
 attitude of the question before the House, though 
 
 in my view, I trust that no one of the proposi 
 tions at present offered, may prevail, and that the 
 original Report should stand, it seems to be de 
 sirable that all projects that may be offered should 
 have the best chance for being properly matured. 
 As the matter now stands, we have two amend 
 ments pending ; and with the vote of the Con 
 vention that the vote be taken at eleven o clock. 
 I do not see how farther amendments are to be 
 reached ; and therefore, with your leave, and that 
 of the Convention, I propose to offer a resolution 
 which was once adopted in relation to another 
 topic to amend the order fixing eleven o clock 
 for the taking of the question, so as to permit ten 
 minutes to the mover of each amendment for the 
 purpose of explanation, and ten minutes to any 
 person who may obtain the floor to reply, before 
 the main question be taken. For that purpose, I 
 therefore move that for the present, the Orders of 
 the Day be laid upon the table. 
 
 The motion to lay the Orders of the Day upon 
 the table, -was agreed to. 
 
 The resolution of the gentleman from Boston 
 was then read, as follows : 
 
 Amendments shall be admitted after debate on 
 the main question shall cease ; and the mover of 
 each amendment shall be allowed ten minutes to 
 explain his amendment, and the person who shall 
 next obtain the floor, shall be allowed ten minutes 
 for the purpose of replying. 
 
 Mr. BUTLER, of Lowell. I have long acted 
 upon the principle, which, perhaps, I can express 
 to the entire understanding of the gentleman 
 from Boston, by the Latin legend, " Timeo Da- 
 nceos et dona ferentes" I fear the Greeks, even 
 when they bring gifts ; and therefore, as I found 
 yesterday on the part of gentlemen with whom 
 he acted not on his part, I must do him the 
 justice to say a disposition to protract the time, 
 a disposition, upon the most frivolous pretexts, to 
 put off taking the question. After they got us to 
 postpone the question until eleven o clock this 
 morning, with the view of giving gentlemen an 
 opportunity of expressing their views still farther, 
 every- body held off, gentlemen went away, no 
 quorum was left, and the consequence was that 
 the Convention adjourned half an hour or three- 
 quarters eailier than the usual time. Now, if we 
 are to open the door to these amendments, in the 
 manner proposed by the gentleman from Boston, 
 their name will be legion, and the yeas and nays 
 will be called on each, and we shall lose much 
 more time. I am, therefore, afraid of this propo 
 sition. I am afraid that, after we get through 
 the debate, we may have amendments offered to 
 such an extent as will amount simply to a con 
 sumption of time; because, from the way in 
 
63d day.] 
 
 THE JUDICIARY. 
 
 223 
 
 Thursday,; 
 
 BUTLER SCHOULEK BARTLETT. 
 
 [July 21st. 
 
 which this thing was started, and the mode in 
 which it was attempted to be made by parlia 
 mentary tactics yesterday morning and yesterday 
 afternoon, by which the gentleman from Boston 
 moved the previous question, and another gentle 
 man moved the yeas and nays on the previous 
 question ; so the thing would have been carried 
 on, without end. I should, myself, have no ob 
 jection to the proposition to give each gentleman 
 ten minutes to explain his amendment, if I could 
 see that the thing was to be carried out in a 
 proper spirit ; but I fear that we should have the 
 same spirit manifested which was shown here 
 yesterday afternoon, and that it would entirely 
 frustrate the object of the mover of this resolu 
 tion. We should have all sorts of amendments, 
 and all kinds of terms, from seventy years down 
 wards, the longest term, of course, being taken 
 first, and perhaps the yeas and nays ordered upon 
 each. I only speak thus, because I fear such 
 would be the result. I do not, therefore, know 
 whether it is best to vote for this resolution or 
 not. Upon the whole, coming in that way, I 
 have always found it safe to doubt when a gen 
 tleman gets up and says, "I hope the resolution 
 will not pass, in any shape," and then proposes 
 to amend it. I say, I have always found it safe 
 to doubt in such cases. There is an old parlia 
 mentary maxim which says : " Never put your 
 child out for his enemies to nurse ;" and I trust, 
 therefore, that this motion will not prevail ; and 
 more especially for this reason, that unless the 
 gentleman will indicate some of the amendments 
 which he proposes to offer, or other gentlemen 
 their amendments, I hope the motion will be 
 rejected. 
 
 Another thing, Sir: I have seen matters in 
 other places if the gentleman from Boston de 
 sires me to explain, I can do so I have seen 
 heads together this morning, and I have my 
 doubts. I am safe where I am, and therefore I 
 think it is best to remain so. 
 
 Mr. SCHOULER. I think, Mr. President, if 
 the Convention would spend its time in some 
 other manner than in listening to harangues 
 from certain gentlemen here, who proceed, in all 
 their movements and arguments, as though one 
 class in the Convention alone had a right to make 
 a motion, it would spend its time much more 
 profitably than it has frequently done. Sir, no 
 motion can be made by any member of this body 
 not of the party of the gentleman from Lowell, 
 without that gentleman suspecting something evil 
 in it. Shakspeare says 
 
 "Suspicion haunts the guilty breast;" 
 and if there be any truth in that observation, one 
 
 might think that the gentleman from Lowell waa 
 haunted from morning till night ; for no motion 
 of any kind can be made on a certain side of the 
 House without his seeing trouble in it. 
 
 Now, Sir, I do not know what he has seen by 
 heads being put together this morning, but he 
 keeps his eye all around upon the House, and if 
 he sees a couple of gentlemen speaking together, 
 he imagines evil in the wind. I do not know 
 anything about this motion, but I have no doubt 
 at all that it was made in good faith, and I pre 
 sume it will be acted upon in good faith. There has 
 been no attempt at all, since the commencement 
 of the session and I appeal to the candid men of 
 this Convention if it is not true by the minority 
 to consume the time of the Convention. They 
 have called for the yeas and nays upon no ques 
 tion, as far as I know, and have offered no frivo 
 lous motions ; and yet we are daily dragooned 
 with this kind of stuff. I trust, as we have got 
 along so well thus far, with good feeling, and 
 good spirits, on all parts of the House, that we 
 will continue so to the end, and that we may con 
 sider each other as gentlemen, and not suspecting 
 that when any gentleman offers an amendment, 
 that he does so for the purpose of delay. I can 
 say for myself, that I concoct and make no mo 
 tion to delay the business of the Convention ; and 
 I do not believe there is any gentleman in the 
 Convention who desires to see its close more hear 
 tily than I do, for I have business to attend to 
 elsewhere. I would like to see the Convention 
 adjourn on Saturday night, and I do not believe 
 that any attempt whatever, on the part of any 
 one, will be made to delay the action of the Con 
 vention. 
 
 The gentleman from Lowell, (Mr. Butler,) re 
 ferred to the motion which I made last night. 
 Now, Sir, it was six o clock when I made that 
 motion, and at the time there was not a quorum 
 of members in the Convention. I trust I have 
 as good a right to make a motion as has the 
 gentleman from Lowell ; and it seems that my 
 motion was proper, because a large majority of 
 the members then present voted to adjourn. If 
 it were not that my colleague, (Mr. Bartlett,) 
 wishes to speak upon this question, I should 
 move the previous question, so as to stop this de 
 bate. 
 
 Mr. BARTLETT, of Boston. I have troubled 
 this Convention so little, and I am so little of a 
 stratagiet, that I do not very well like to be told 
 that I have made a motion for a factious purpose. 
 As it is not the habit of my life to adopt a course of 
 that sort, I put in a disclaimer. My purpose waa 
 a correct one, and with no other intent than I 
 then avowed ; and that was, that in a matter of 
 
224 
 
 THE JUDICIARY. 
 
 [63d day. 
 
 Thursday,; 
 
 EAKLE ABBOTT KEYES. 
 
 [July 21st. 
 
 the gravest importance to the interests of the Com 
 monwealth, if my own wishes should not pre 
 vail, and the proposition of the gentleman from 
 Worcester, (Mr. Knowlton,) should not be reject 
 edas I hope heartily it may I still desire, as I 
 always do, to mature even the most objectionable 
 project which is to be placed ultimately before the 
 Convention, and then before the people. 
 
 It is useless to discuss farther this matter. If 
 the gentleman from Lowell, (Mr. Butler,) had 
 remembered that yesterday, when I proposed to 
 ask the gentleman from Worcester, (Mr. Kiiowl- 
 ton,) for some explanation of the practical work 
 ings of his plan, he objected I will not say from 
 discourtesy on his part, for probably he acted 
 from a sense of public duty he would have seen 
 that I had in view, this morning, an amendment 
 to that proposition, if it was ultimately to be 
 passed. 
 
 Mr. EARLE, of Worcester. I do not know 
 but that I can say what I wish to say, under the 
 present motion. I simply wish to say that I hope 
 the discussion of this kind may not go on. We 
 had enough of it yesterday. I am as anxious as 
 any other gentleman to bring the session of the 
 Convention to a close, and, I believe the best way 
 in which we can accomplish that end, is for each 
 member to do what he can towards carrying along 
 the business in the regular course, and to treat 
 every other member present, as if he were a gen 
 tleman, and as if he meant to conduct as one. If 
 the majority for I may allude to majorities and 
 minorities in such a case if the majority adopt 
 that principle and act upon it ; if they concede to 
 the minority every right which the minority 
 could reasonably ask or expect, then, if they are 
 factious, and do riot conduct themselves in the 
 spirit with which the majority act towards them, 
 theirs is the fault. I would rather permit them 
 in error, if error there is to be, than to be in 
 error ourselves, in pressing them too severely. I 
 have no objection to sustaining the previous 
 question at this time, but I had hoped that in 
 stead of wasting the time as we have done, in dis 
 cussing the mode of shortening the session, that 
 we would take hold of the work, and by accom 
 plishing it, shorten the session in that way the 
 only effectual way, in my opinion, of doing it. 
 
 Mr. ABBOTT, of Lowell. I trust that the 
 motion of the gentleman from Boston, (Mr. Bart- 
 lett,) will not be adopted. As I understood the 
 matter last night, and I think it was so understood 
 in all parts of the House, it was agreed all around, 
 that for the purpose of preventing anybody from 
 saying they had not time to make amendments, 
 and to discuss everything to be discussed, that all 
 talk upon the matter should not cease until, and 
 
 should cease, at eleven o clock, to-day. I went 
 in good faith for that arrangement, and I supposed 
 I was satisfying every- body upon the other side of 
 the House. Now that the arrangement has been 
 made, I, for one, shall stick to the arrangement 
 and agreement as it was made. I do not mean to 
 charge anything upon anybody in this Conven 
 tion, but I mean to say that we who are here in 
 the majority of this Convention, are responsible 
 for the length of the session, and will be held to 
 that responsibility, and not the gentleman from 
 Boston, (Mr. Bartlett,) and those with whom he 
 is associated. I ask, if the gentleman himself 
 will not, when we get through, and our labors 
 are submitted to the people, will not charge that 
 this Convention have set here too long ? I do 
 not mean to charge that they intend to keep us 
 here too long, but I do mean to say that we have 
 been here quite long enough. We are responsi 
 ble, and unless we do bring this debate to an end 
 somehow or other, and stick to the arrangement 
 and agreement we made yesterday, I apprehend 
 that the vote you passed a little while ago, that 
 your session ought to be brought to an end on 
 Saturday next, means nothing. 
 
 Mr. KEYES, for Abington. I am almost sorry 
 that I got up, but I supposed somebody else 
 would, if I did not. [Laughter.] I got up upon 
 the same principle, that, sometimes when I have 
 been in a small room where half a dozen gentle 
 men have been smoking cigars, I have been com 
 pelled to take one, too, to enable me to endure 
 the atmosphere. On this occasion I have become 
 so nervous in hearing the discussion of yesterday 
 afternoon, repeated this morning, that I cannot 
 sit still, but must participate in the discussion, or 
 grow crazy, and I prefer the former. This is 
 pretty much all the reason and all the argument 
 I have to use here. [Laughter.] Since I find 
 that the object of the delay granted yesterday 
 afternoon, has not been accomplished, and is not 
 meant to be accomplished by anybody, I suppose 
 it was not meant to be carried out. It was pro 
 posed to delay taking the vote yesterday, for the 
 purpose of having some discussion upon the 
 questions before the Convention ; but nobody 
 seemed to take the floor, except the gentleman 
 representing Otis, (Mr. Sumner,) and I con 
 fess that owing to the noise and my disturbed 
 state of mind, I did not find out upon which side 
 of the question he was, whether upon my side, or 
 against it. I dare say, however, he made a very 
 able argument in favor of the election of judges 
 by the people. 
 
 Now, as to the proposition of the gentleman 
 
 from Boston, (Mr. Bartlett,) let us look at it and 
 
 . see what reason there is for supporting it. I un- 
 
63d day.] 
 
 THE JUDICIARY. 
 
 225 
 
 Thursday,! 
 
 BIRD GRAY DANA BRIGGS BARTLETT. 
 
 [July 21st. 
 
 derstand that he means to be understood as not 
 favoring this till or anything like it. What, 
 then, does he want an amendment for ? I do not 
 think he cares enough about the bantlings of this 
 Convention, to take care of them ; and the worse 
 shape in which they come out, the more agreeable 
 to him. If there was any gentleman who really 
 had an amendment which he felt sincerely desi 
 rous to offer, as a modification of this proposi 
 tion, that would be an argument in favor of it, 
 and I do not know that we should exclude it. 
 If an amendment is presented to us, let us vote 
 it, or vote it down, as we like it. I do not, after 
 all, see any great deal of difficulty. Nobody 
 seems inclined to enlighten the Convention upon 
 the question for which action was delayed yester 
 day. There is an opportunity now before eleven 
 o clock, to make at least twenty better speeches 
 than are usually made here, for the longer they 
 are, the worse they are. 
 
 Mr. BIRD, of Walpole. A proposition was 
 made yesterday afternoon, to delay taking the 
 question until eleven o clock this morning, as 
 gentlemen were anxious to hear farther discus 
 sion. They wanted light, and it would not do to 
 press the previous question. Finally, as a matter 
 of compromise, we put off taking the question 
 until eleven o clock this morning. What was 
 the result ? The very moment the vote was taken 
 to postpone the taking of the vote, almost every 
 one of the gentlemen who were anxious for it, 
 went out of this House as though they were shot. 
 In fifteen minutes after that vote was taken, not 
 one-half as many members were in their seats as 
 there were when the vote was taken. They wanted 
 light, did they ? One most distinguished gentle 
 man took the floor, and, failing to get a hearing, 
 took his seat, because members would not listen 
 to him. They wanted light, did they ? Another 
 distinguished gentleman, upon the other side, the 
 gentleman for Berlin, (Mr. Boutwell,) took the 
 floor I will not say that he did not get a hearing 
 but certainly he was talking to empty benches, 
 and, absolutely, about an hour after that vote was 
 taken, we adjourned without a quorum. We 
 adjourned at six o clock without a quorum. And 
 gentlemen wanted more light ! Now they want 
 to put off the question four or five hours, for 
 more discussion. I say, that with the exception 
 of the gentleman who just moved this motion, 
 (Mr. Bartlett,) I believe he remained until the 
 close there was hardly a single gentleman upon 
 that side I believe not one in favor of that con 
 tinued debate who did not go out of the House 
 in twenty minutes after the vote was taken. I 
 belong to the majority, but I am not to be fright 
 ened by the divisions of parties. I hope that the 
 
 majority of this Convention, who are responsible 
 for the length of this session, will delay action no 
 longer. And I consider the course pursued yes 
 terday by the minority as a sheer pretence, and 
 for a hypocritical purpose. 
 
 [Cries of " Order," " Order," Order."] 
 
 Mr. GRAY, of Boston. Mr. President : it is 
 really hard, after having detained the Convention, 
 or those who were here to listen to me yesterday 
 afternoon, for nearly half an hour, and then have 
 it said not that I made a very poor speech, which 
 perhaps could often be said with truth but to 
 have it said that I was not even here. I do as 
 sure the gentleman from Walpole, (Mr. Bird,) 
 that I claim no more power than any other mem 
 ber of this Convention, and not so much as some, 
 and, least of all, do I claim the power of being in 
 two places at once. I submit it to the candid 
 gentlemen of the Convention, upon all sides, that 
 there is too much of these repeated attacks upon 
 the minority for delaying the business of the Con 
 vention. Have the gentlemen in the majority 
 been silent ? Have they failed to do justice to 
 their side of the question ? The fault was in the 
 ground of their argument, and the side of the 
 question they were upon, and not in their ability 
 or their disposition to do the best they could. I do 
 hope and I say it seriously that in this Con 
 vention, which, up to this moment, has been dis 
 tinguished by courtesy and comity upon all sides, 
 that courtesy and good feeling will continue until 
 the end, and that we shall not lose our character 
 in that respect, however our character for wisdom 
 may stand before the people. 
 
 Mr. DANA, for Manchester. Feeling an in 
 terest in the character and credit of the majority, 
 of which I am one, and fearing that one or two 
 of them are in danger of losing their temper, and 
 that we are wasting time, I move the previous 
 question. 
 
 The previous question was ordered. 
 
 Mr. BRIGGS, of Pittefield. I wish to inquire 
 of the Chair, when the hour of eleven o clock 
 shall arrive, and the pending amendment shall 
 have been voted upon, whether other amendments 
 will be in order ? 
 
 The PRESIDENT. The Chair thinks they 
 will be in order. 
 
 Mr. BARTLETT, of Boston. The object of 
 the motion is not simply that amendments may 
 be offered, for they fall dull upon the ear unac 
 companied with explanation. If the Convention 
 are in such hot haste that ten minutes cannot be 
 afforded for explanation, the sooner we rise and 
 go home the better. 
 
 The question was then taken upon the motion of 
 the gentleman from Boston, (Mr. Bartlett,) and 
 
226 
 
 THE JUDICIARY. 
 
 [63d day. 
 
 Thursday,] 
 
 KNOWLTON BARTI?ETT. 
 
 [July 21st. 
 
 there were, upon a division ayes, 140 ; noes, 
 144. 
 So the motion was not agreed to. 
 
 Orders of the Day. 
 
 On motion of Mr. KNOWLTON, of Worces 
 ter, the Convention proceeded to the considera 
 tion of the Orders of the Day, the first business 
 in order being the consideration of the resolves 
 upon the subject of 
 
 The Judiciary) 
 
 To which an amendment offered by the gentle 
 man from "Worcester, (Mr. Knowlton,) and an 
 amendment to the amendment offered by the 
 gentleman from Fall River, (Mr. Hooper,) were 
 pending. 
 
 Mr. KNOWLTON, of Worcester, by unani 
 mous consent, modified his amendment by in 
 serting in the fifth line, after the word " years," 
 the following : " and, for the purpose of such 
 confirmation, the governor shall have power to 
 convene the Senate from time to time, at his 
 discretion," so that the amendment as modified, 
 would then read : 
 
 That it is expedient so to amend the Constitu 
 tion, that all Judicial Officers, except those con 
 cerning whom a different provision shall be made 
 in the Constitution, shall be nominated and 
 appointed by the governor, by and with the con 
 sent of the Senate, for the term of seven years ; 
 and, for the purpose of such confirmation, the 
 governor shall have power to convene the Senate 
 from time to time, at his discretion; that they 
 may be reappointed at the expiration of such 
 term, and that all such nominations shall be made 
 at least seven days before such appointment. 
 
 Mr. BARTLETT, of Boston. I regret, Mr. 
 President, that the stage of the debate is such, 
 that every ear is weary of the discussion. I feel 
 that all argument, all illustration that can fitly be 
 applied to the subject, has doubtless been ex 
 hausted. But, having been necessarily absent 
 while this most important topic has been under 
 consideration, I am unwilling that the vote should 
 be taken, without expressing, in some brief man 
 ner, the views which, with some experience of 
 the working of our present judicial system, I 
 confidently entertain. 
 
 And, now, Mr. President, allow me, summa 
 rily, to state what, in my judgment, is the precise 
 attitude of the question. I shall not advert to 
 the project of the member from Fall River, be 
 cause I think there is a foregone conclusion with 
 regard to that project ; but I think that those who 
 favor the project of the gentleman from Worces 
 ter, should fairly and justly be held to establish 
 three things. 
 
 In the first place, I think they are bound to 
 show that the present judicial institutions of the 
 Commonwealth are, in some respects, defective. 
 I think that gentlemen who come here to carry 
 out speculative opinions on this subject, are 
 bound, at the outset, to establish that the existing 
 state of things is one which fails to meet the en 
 tire approbation of the community. They should 
 be rigorously held to this, as forming the basis 
 of their argument. 
 
 In the second place, if they succeed in their 
 first step, I think they are bound to show that a 
 learned and able judiciary can be secured under 
 the tenure of office proposed by the gentleman 
 from Worcester. 
 
 If those two points can be established, I think 
 they are bound, in the last place, to make it rea 
 sonably certain that that learning and ability 
 thus secured, will be placed in such a position 
 of independence, that every man who has rights, 
 or property, dependent on judicial decision, may 
 feel, whatever may be the result, unshaken con 
 fidence in the purity and impartiality of our tri 
 bunals. These three questions, I think, are 
 questions which should be deliberately consid 
 ered and fairly settled. 
 
 Now, Sir, in relation to the first question, 
 although I have not been able to be present 
 during this discussion, yet, from inquiry, I am 
 not able to find that anywhere during that de 
 bate, the suggestion has been made, that the 
 judicial system of Massachusetts, from its earliest 
 to its latest history, has not accomplished, or that 
 it does not now accomplish, fuDy and satisfactori 
 ly, the great purposes for which it was instituted. 
 What man has told you that human liberty, the 
 rights of property, and all that is confided to 
 judicial keeping, has not been well and wisely 
 confided there, during the whole time that our 
 judiciary has been established upon its present 
 basis ? I have heard of no such complaint, 
 abroad or at home. But, on the contrary, if 
 there be any portion of the institutions of Mas 
 sachusetts which has, more than anything else, 
 redounded to her credit next to her common 
 schools, it is the marked ability, fairness and 
 learning to be found in her judicial decisions. 
 Wherever, in this country, the common law is 
 administered; wherever the application of the 
 great principles of commercial law is studied or 
 investigated ; wherever schools of jurisprudence 
 are established, there will be found the reports of 
 your adjudicated cases. 
 
 In the extensive collection of books forming 
 the law library of congress, I am told, that 
 among the best thumbed volumes are the Reports 
 of your Pickering ; a fact, if it be true, which 
 
63d day.] 
 
 THE JUDICIARY. 
 
 227 
 
 Thursday,] 
 
 BARTLETT. 
 
 [July 21st. 
 
 constitutes a proud tribute to the institution 
 which the pending resolution seeks to alter if 
 not impair. 
 
 I submit, then, Mr. President, that the first 
 important position which those who support the 
 pending resolution are bound to establish, has 
 nothing to rest upon. That your existing judi 
 cial system is, and should be, a source of just 
 pride and congratulation ; and that it is due to 
 common prudence to leave untouched a branch 
 of your government that commands and obtains 
 unusual approbation and respect. 
 
 But if this were doubtful as it is not and if 
 the conclusion should be adopted that our pres 
 ent system requires to be modified, or radically 
 changed ; the next important question occurs : 
 will the proposed substitute secure the requisite 
 learning and ability ? 
 
 In determining this question, the advantage of 
 professional success, compared with a judicial 
 position, are to be carefully balanced. You must 
 assume that the selection of judges is to be made 
 from among those who have reached the foremost 
 rank of the profession, that a humiliating con 
 trast between the capacity of the bar and the 
 bench may be avoided. To attain such degree 
 of professional standing, years of severe study 
 and practise, reaching, on the average, to the 
 meridian of life, will commonly be requisite. 
 The present standard of judicial compensation 
 or, indeed, any probable measure of compensa 
 tion which will ever obtain in this Common 
 wealthwill compare most unfavorably with the 
 results of professional success. In this condition 
 of things, is it probable, nay, is it even possible, 
 that, for any lengthened period, the judicial office, 
 with a tenure of ten years, can be an object of 
 professional aspiration ? What is to be the fate 
 of an incumbent at the end of his term ? Reap- 
 pointment can never be counted on with certainty. 
 Failing that, he is left without resource. The 
 instances in which a return to practise at the bar 
 has been successful aside from the irksomeness 
 of such change of position are very rare. The 
 usual resort, under such circumstances to the 
 habit of giving advice and opinions at chambers, 
 has been found to be unenduring, and from ob 
 vious causes, unsatisfactory ; and your judge is left 
 substantially stranded and helpless, on the shore 
 of the great current with which he has heretofore 
 mingled, and, to some extent, aided to guide. 
 
 It may be, Mr. President, that where judicial 
 positions have ceased to be the aim of those 
 whose experience and learning furnish the requi 
 site qualifications, talent and industry may oc 
 casionally be found, and trained by the experi 
 ence of years, to come up to the standard of 
 
 judicial excellence which it has hitherto been 
 our pride to require. But this must be the acci 
 dent and not the rule ; and I am unwilling to 
 believe that this Convention will be content to 
 subject to chance the sound and successful ad 
 ministration of justice in this Commonwealth. 
 
 Mr. President : There are many gentlemen in 
 this Convention, who upon this subject are, from 
 their independent position and large experience, 
 qualified to testify rather than to argue the ques 
 tion. The journal shows that they have been 
 heard, and I desire only to add my own convic 
 tions, that the proposed scheme of limiting the 
 judicial tenure to a period of ten years, will fail 
 to secure the talent and learning which have 
 hitherto been deemed so essential to a safe and 
 impartial administration of the law. 
 
 Mr. President: Assuming that a change in 
 our system is required, or, whether required or 
 not, is to be made, and assuming, farther, that 
 the scheme proposed by the member from Wor 
 cester will command the requisite learning and 
 ability in the judicial office, the question still 
 remains, will that learning and ability be placed 
 in a position that will secure its independence 
 and purity ? 
 
 The argument founded on the alleged average 
 number of years, during which office has been held 
 by the judges of this Commonwealth, if, under 
 any circumstances entitled to consideration, can 
 have no weight in determining this question. The 
 practical inquiry is, whether contrasted with a 
 tenure during good behavior a term of ten 
 years will probably preserve the sense of just 
 independence, without which, all agree, the judi 
 cial office may be a scourge or a nuisance. 
 
 This must be tested by assuming that your 
 judges are dependent on their compensation for 
 their support. It may not always be true, but 
 the exceptions are too rare to be relied on in 
 forming a system. In this condition of things 
 having deserted a profession to which he cannot 
 successfully return how can a judge, as his term 
 approaches its end, free his mind from solicitude 
 as to the future ? and pressed by that solicitude 
 with no hopeful issue save a reappointment he 
 must be more than human, if his conduct be not, 
 insensibly, perhaps, to himself, influenced by his 
 position ; and how important that influence may 
 be, to what extent it may interfere with the fair 
 and just administration of his office, must depend 
 on the strength of his mind and character. But 
 a system that places its magistrates in a position 
 of possible peril from such causes, has no founda 
 tion in true wisdom. 
 
 It has been suggested that no good and compe 
 tent judge need ever subject himself to unworthy 
 
228 
 
 THE JUDICIARY. 
 
 [63d day. 
 
 Thursday,] 
 
 BARTLETT DANA KEYES. 
 
 [July 21st. 
 
 appliances, to secure a reappointment that policy 
 as well as duty, point to the uncompromising dis 
 charge of the functions of his office, as the true 
 method of securing his continuance in it. I 
 agree that acknowledged judicial eminence in 
 creases the embarrassment of displacing its pos 
 sessor ; but the certainty of such ultimate emi 
 nence at the outset, where one is to shape his 
 destiny for life, can never be felt to be secure ; and 
 a fear or a doubt of its existence, when the period 
 of reappointment arrives, may disturb the coolest 
 judgment. 
 
 Mr. President : Judicial appointments will be 
 made in the future as they have for the most part 
 been in past times from the ranks of the domi 
 nant party, whenever it is supposed to contain 
 persons of fit or equal qualifications. To that 
 condition of things every incumbent must have 
 more or less regard ; and in my judgment it is 
 vain to hope, that under the short and limited 
 tenure proposed, the great judicial offices of this 
 Commonwealth can be worthily filled, or their 
 purity and independence as successfully main 
 tained as under the existing, long-tried tenure ; 
 and I hope, as I stated at the outset, that the 
 proposed scheme will be rejected altogether. 
 
 Mr. DANA, for Manchester. I have already 
 had the attention of the Convention several times 
 upon this subject, and if there is any other gen 
 tleman who desires to speak, I will yield the floor 
 with great pleasure. I do not desire to speak 
 upon the general subject, but upon a collateral 
 point which I cannot speak to when it regularly 
 comes before the Convention, by reason of the 
 rule you have adopted, closing debate. I have 
 an amendment, bona fide, which I mean to offer ; 
 and as I shall not have the opportunity under the 
 order to explain it when it shall come up, I desire 
 to speak to it now. 
 
 The gentleman from "Worcester, (Mr. Knowl- 
 ton,) proposes in his amendment that the judges 
 shall be confirmed by the Senate. But, he has 
 seen this morning, that his proposition would 
 operate rather badly in one respect. That is to 
 say, by the provision you have adopted in rela 
 tion to the length of the sessions of the legisla 
 ture, the Senate ought not to be in session more 
 than one hundred days in any one year, leaving 
 two hundred and sixty-five days in each year, in 
 which you would have no confirming body in 
 session. But, this morning, the gentleman from 
 Worcester has modified his plan so as to allow 
 the governor to call the Senate together, when 
 ever a vacancy in any of your courts occurs 
 during the recess. Of course, the chances are 
 that three- fourths of the vacancies will occur 
 during the recesses, and the governor must call 
 
 together a body of forty men and keep them in 
 session for seven days to confirm a single judge, 
 perhaps of the court of common pleas. Yet, all 
 that time, the Council, elected for the purpose of 
 being a confirming body, are in session in their 
 chamber. 
 
 Now, let us put this question to the Conven 
 tion. You have a Council of nine, elected for 
 the purpose of confirming the appointments of 
 the governor, with nobody to confirm but coro 
 ners and notaries. They are in session a great 
 part of the whole year. Is it, then, worth while 
 to provide that whenever a vacancy occurs in 
 your supreme court, or your court of common 
 pleas, you must wait for nine months without a 
 judge, with your courts over- crowded as they are 
 with business, or call together a body of forty 
 men, from the different portions of the Common 
 wealth, and keep them in session in the other end 
 of this capitol for seven days, at an expense of 
 some $1,200 or $1,400? 
 
 That objection, I think, ought to be fatal. I 
 shall propose to amend by striking out the word 
 " Senate," and inserting the word " Council ;" be 
 cause it is my wish, that whatever passes here, may 
 pass in the best form possible ; for I expect to be 
 obliged to go before the people and defend the Con 
 stitution, when the time comes, and I desire to 
 make it as good as I can. I do not wish to be 
 obliged to go down to Manchester, and tell the 
 people of that town that we must have a session of 
 the Senate seven days forty men here sucking 
 their thumbs, wandering about Boston with no 
 thing to do, at three dollars a day, and all to confirm 
 a judge of the court of common pleas. The peo 
 ple of Massachusetts will not sustain such a prop 
 osition as that. It may be that the Council is 
 unnecessary. Then do away with it. The Con 
 vention have voted to retain the Council ; and 
 influential men here, ex -councillors and ex-gov 
 ernors, are in favor of it on account of the pardon 
 ing power. If we have that Council, let us give 
 them something to do. The most dignified part 
 of their business is taken away from them. Of 
 course, I am opposed to the whole proposition of 
 appointing judges for the period of seven years, 
 for I do believe that it will place the judiciary 
 under the control of the governor too much, and 
 will lead to cabals, and influences, and suspicions, 
 and conditions of dependence, which I do not wish 
 to see. But this subject has already been dis 
 cussed at great length, and I do not wish to 
 detain the Convention any farther. 
 
 Mr. KEYES, for Abington. I hope the 
 amendment offered by the gentleman for Man 
 chester, (Mr. Dana,) will prevail. I was sur 
 prised, I confess, to find the proposition now 
 
63d day.] 
 
 THE JUDICIARY. 
 
 229 
 
 Thursday,] 
 
 KEYES HOOPER. 
 
 [July 21st. 
 
 under consideration, coming from the sensible 
 gentleman from Worcester, (Mr. Knowlton). I 
 supposed it was settled, that is was bad policy to 
 combine two branches of the government, the 
 executive and the legislative. If we vote to 
 have judges appointed by the governor, that will 
 amount to an additional necessity for a Council, 
 and that body is a thousand times more adapted 
 to the duties of a confirming body, than the 
 Senate. 
 
 The Senate, as a confirming body, would be 
 liable to all the objections which are urged against 
 popular elections of the people ; because it is a 
 political body, and their actions upon such ques 
 tions would be determined politically. The Coun 
 cil, as a body, may be political in its character ; 
 but it is not so likely to be guided by political 
 considerations in its action. That is the difference 
 between the two bodies. The Council can find 
 out what the Senate never can find out ; and, of 
 course, as a confirming body, it is far better and 
 more convenient. By maintaining the present 
 system, we do not trample upon the great princi 
 ple we have adopted : that no two departments of 
 the government shall, jointly, exercise political 
 power. I hope that the amendment of the gen 
 tleman from Fall River, (Mr. Hooper,) may be 
 adopted, and I trust we shall vote to elect judges 
 by the people. I wish to offer one suggestion 
 here, in regard to what has been the tenor of the 
 argument upon the other side. It has been held 
 for a positive fact by all the lawyers who have 
 spoken on that side who may be supposed to 
 know their own kin in the profession better than 
 I do that they are the most corrupt and selfish 
 men in the community ; men who cannot be trust 
 ed for a day, unless you give them offices for life. 
 I do not mean any impertinence or any disrespect 
 by suggesting that it seems to be taken for granted 
 that they would be always ready to " kiss the hand 
 that feeds them." The gentleman from Boston, 
 (Mr. Hillard,) has informed us that if the term of 
 the office of judge should be limited, and the elec 
 tion given to the people, the latter would be like 
 ly to select for judges a pack of mean and abject 
 wretches, who would, in order to gain a reelection, 
 fail to discharge their duties faithfully, and vio 
 late their oaths. I desire to know if that was not 
 the whole tenor of the gentleman s argument, 
 from the beginning to the end, and if he did not 
 proceed upon the assumption, all through, that a 
 man who does not hold office for life, would, 
 necessarily, become corrupt? I do not believe 
 any such thing. I know how men will stoop, and 
 how their judgments are apt to be warped in view 
 of four-pence-half-pennies ; but men placed in 
 responsible public positions, lose a great portion of 
 
 that weakness. It may be illustrated by the case 
 of a man, who, hearing of some great crime com 
 mitted, says, at once, and in the first excitement : 
 " He ought to be hung, and if I was on the jury, 
 I would hang him ;" but put the responsibility 
 of that office upon him, and he changes his tone 
 immediately. I believe that this would be the 
 effect in the case of judges. The gentleman for 
 Otis, (Mr. Sumner,) was in favor of limiting the 
 tenure of office, but he wanted it so long that a 
 man, in many cases, would die before he would 
 ever reach it. He might have as well put it at 
 fifty as fifteen years. Such a tenure is good for 
 nothing. Some gentlemen advocate the plan of 
 electing judges by the people, if you will give 
 them a life tenure ; but what difference does it 
 make whether they are elected, or appointed, if 
 that is to be the tenure ? The governor of Massa 
 chusetts can appoint, or the people can elect, 
 good judges ; but the whole argument against the 
 people electing judges is entirely opposed to the 
 form of government which we have adopted. 
 The Convention have settled that the governor is 
 not to be intrusted to appoint the least respon 
 sible and important officers ; but here it is pro 
 posed that he is fit to be intrusted with the 
 appointment of the judges, an office affecting the 
 interests and honor of the people more than that 
 of any other in the State. I do not understand 
 such doctrine to be democratic doctrine. Thomas 
 Jefferson was in favor of electing judges by the 
 people ; but men who are supposed to wear his 
 mantle, preach a very different doctrine. But 
 they do not quote or imitate him much nowa 
 days. What would Thomas Jefferson s bones do 
 if they could hear all this talk about compromise ? 
 [Laughter.] But of that I have not time to speak. 
 The party to which I belong do not care anything 
 about names ; but it is the thing at which they 
 look. When we support a compromise, you may 
 be sure it will be one that has no villainy in it 
 like that indorsed by the Baltimore Conventions. 
 
 [Here the hammer fell.] 
 
 The hour of eleven o clock, fixed by special as 
 signment for taking the vote, having arrived, 
 
 Mr. HOOPER, of Fall River, moved to mod 
 ify his amendment, so that the second resolve 
 would read as follows : 
 
 Resolved, That it is expedient so to revise the 
 Constitution as to require that provision shall be 
 made, by law, for the election of all the judges 
 and justices of inferior courts for a term at years. 
 
 The yeas and nays having been ordered on Mr. 
 Hooper s amendment yesterday, the question was 
 then taken, and there were yeas, 150 ; nays, 
 236 as follows : 
 
230 
 
 THE JUDICIARY. 
 
 [63d day. 
 
 Thursday,] 
 
 YEAS NAYS. 
 
 [July 21st. 
 
 YEAS. Underwood, Orison 
 
 Wilbur, Joseph 
 
 Aldrich, P. Emory 
 
 Hoyt, Henry K. 
 
 Upham, Charles W. 
 Walker, Amasa 
 
 Williams, Henry 
 Williams, J. B. 
 
 Allen, James B. 
 
 Hunt, Charles E. 
 
 Ward, Andrew H. 
 
 Wilson, Willard 
 
 Alii s, Josiah 
 
 Huntington, Charles P. 
 
 Weston, Gershom B. 
 
 Winslow, Levi M. 
 
 Alvord, D. W. 
 Austin, George 
 
 Hyde, Benjamin D. 
 Ide, Abijah M., Jr. 
 
 White, George 
 Whitney, Daniel S. 
 
 Wood, Charles C. 
 Wood, Otis 
 
 Baker, Ilfflel 
 Bancroft, Alpheus 
 Barrett, Marcus 
 
 Jacobs, John 
 Keyes, Edward L. 
 Kingman, Joseph 
 
 Whitney, James S. 
 Wilbur, Daniel 
 
 Wood, William H. 
 Wright, Ezekiel 
 
 Bates, Moses, Jr. 
 
 Knowlton, J. S. C. 
 
 
 Bigelow, Edward B. 
 
 Knowlton, William H. 
 
 NAYS. 
 
 Bird, Francis W. 
 
 Kiiox, Albert 
 
 Abbott, Josiah G. 
 
 Cummings, Joseph 
 
 Bout well, Sewell 
 
 Langdon, Wilber C. 
 
 Adams, Benjamin P. 
 
 Cutler, Simeon N. 
 
 Breed, Hiram N. 
 
 Lawrence, Luther 
 
 Adams, Shubael P. 
 
 Dana, Richard H., Jr. 
 
 Bronson, Asa 
 
 Lawton, Job G., Jr. 
 
 Allen, Charles 
 
 Davis, Charles G. 
 
 Brown, Adolphus F. 
 
 Leland, Alden 
 
 Allen, Joel C. 
 
 Davis, Ebenezer 
 
 Brown, Hammond 
 
 Lincoln, Abishai 
 
 Alley, John B. 
 
 Davis, John 
 
 Brownell, Frederick 
 
 Little, Otis 
 
 Andrews, Robert 
 
 Davis, Solomon 
 
 Brownell, Joseph 
 
 Loomis, E. Justin 
 
 Aspinwall, William 
 
 Dehon, William 
 
 Bryant, Patrick 
 
 Mason, Charles 
 
 Atwood, David C. 
 
 Deming, Elijah S. 
 
 Buck, Asahel 
 
 Merritt, Simeon 
 
 Ayres, Samuel 
 
 Deiiison, Hiram S. 
 
 Burlingame, Alison 
 
 Monroe, James L. 
 
 Ball, George S. 
 
 Doane, James C. 
 
 Butler, Benjamin F. 
 
 Moore, James M. 
 
 Barrows, Joseph 
 
 Dorman, Moses 
 
 Case, Isaac 
 
 Morss, Joseph B. 
 
 Bartlett, Sidney 
 
 Eames, Philip 
 
 Childs, Josiah 
 
 Morton, William S. 
 
 Bates, Eliakim A. 
 
 Easland, Peter 
 
 Clark, Henry 
 
 Nash, Hiram 
 
 Beach, Erasmus D. 
 
 Easton, James, 2d 
 
 Clarke, Alpheus B. 
 
 Nayson, Jonathan 
 
 Beal, John 
 
 Eaton, Lilley 
 
 Cleverly, William 
 
 Newman, Charles 
 
 Beebe, James M. 
 
 Edwards, Samuel 
 
 Cole, Sumner 
 
 Nute, Andrew T. 
 
 Bell, Luther V. 
 
 Ely, Homer 
 
 Crane, George B. 
 
 Orne, Benjamin S. 
 
 Bennett, William, Jr. 
 
 Eustis, William T. 
 
 Cressy, Oliver S. 
 
 Osgood, Charles 
 
 Bennett, Zephaniah 
 
 Farwell, A. G. 
 
 Cushman, Henry W. 
 
 Packer, E. Wing 
 
 Bigelow, Jacob 
 
 Fay, Sullivan 
 
 Cushman, Thomas 
 
 Paine, Benjamin 
 
 Bishop, Henry W. 
 
 Fellows, James K. 
 
 Davis, Isaac 
 
 Parris, Jonathan 
 
 Blagden, George W. 
 
 Foster, Abram 
 
 Davis, Robert T. 
 
 Partridge, John 
 
 Bliss, Gad O. 
 
 Fowle, Samuel 
 
 Dawes, Henry L. 
 
 Perkins, Daniel A. 
 
 Booth, William S. 
 
 Fowler, Samuel P. 
 
 Day, Oilman 
 
 Perkins, Noah C. 
 
 Boutwell, Geo. S. 
 
 French, Charles H. 
 
 Dean, Silas 
 
 Phelps, Charles 
 
 Braman, Milton P. 
 
 Gale, Luther 
 
 Denton, Augustus 
 
 Pierce, Henry 
 
 Brewster, Osmyii 
 
 Gardner, Henry J. 
 
 Duncan, Samuel 
 
 Pool, James M. 
 
 Brinley, Francis 
 
 Gardner, Johnson 
 
 Dunham, Bradish 
 
 Powers, Peter 
 
 Briggs, George N. 
 
 Gates, Elbridge 
 
 Durgin, John M. 
 
 Rawson, Silas 
 
 Brown, Alpheus R. 
 
 Gilbert, Wanton C. 
 
 Earle, John M. 
 
 Richardson, Daniel 
 
 Brown, Artemas 
 
 Gilbert, Washington 
 
 Eaton, Calvin D. 
 
 Richardson, Nathan 
 
 Brown, Hiram C. 
 
 Giles, Charles G. 
 
 Edwards, Elisha 
 
 Ring, Elkanah, Jr. 
 
 Bullock, Rufus 
 
 Giles, Joel 
 
 Ely, Joseph M. 
 
 Rogers, John 
 
 Bumpus, Cephas C. 
 
 Gooch, Daniel W. 
 
 Fisk, Lyman 
 
 Ross, David, S. 
 
 Cady, Henry 
 
 Gould, Robert 
 
 Fiske, Emery 
 
 Royce, James C. 
 
 Carter, Timothy W. 
 
 Goulding, Dalton 
 
 Fitch, E/ekiel W. 
 
 Sanderson, Amasa 
 
 Caruthers, William 
 
 Goulding, Jason 
 
 Foster, Abram 
 
 Sanderson, Chester 
 
 Chandler, Amariah 
 
 Graves John W. 
 
 Freeman, James M. 
 
 Sheldon, Luther 
 
 Chapin, Henry 
 
 Gray, John C. 
 
 French, Charles A. 
 
 Simmons, Perez 
 
 Choate, Rufus 
 
 Green, Jabez 
 
 French, Rodney 
 
 Simonds, John W. 
 
 Churchill, J. McKean 
 
 Greenleaf, Simon 
 
 French, Samuel 
 
 Sprague, Melzar 
 
 Clark, Ransom 
 
 Hadley, Samuel P. 
 
 Frothingham, Rich d, Jr 
 
 Spooner, Samuel W. 
 
 Clarke, Stillman 
 
 Hale, Artemas 
 
 Gooding, Leonard 
 
 Stacy, Eben H. 
 
 Coggin, Jacob 
 
 Hale, Nathan 
 
 Greene, William B. 
 
 Stevens, Granville 
 
 Cogswell, Nathaniel 
 
 Hallett, B. F. 
 
 Griswold, Josiah W. 
 
 Stevens, Joseph L., Jr. 
 
 Conkey, Ithamar 
 
 Hammond, A. B. 
 
 Griswold, Whiting 
 
 Strong, Alfred L. 
 
 Cook, Charles E. 
 
 Hapgood, Seth 
 
 Hapgood, Lyman W. 
 
 Sumner, Charles 
 
 Cooledge, Henry F. 
 
 Haskins, William 
 
 Hawkes, Stephen E. 
 Haze well, Charles C. 
 
 Sumner, Increase 
 Taft, Arnold 
 
 Copeland, Benjamin F. 
 Crittenden, Simeon 
 
 Hathaway, Elnathan P. 
 Hayden, Isaac 
 
 Heath, Ezra 2d, 
 Hewes, William H. 
 
 Thayer, Willard, 2d 
 Thomas, John W. 
 
 Crockett, George W. 
 Crosby, Leander 
 
 Hayward, George 
 Heard, Charles 
 
 Holder, Nathaniel 
 
 Tilton, Abraham 
 
 Cross, Joseph W. 
 
 Henry, Samuel 
 
 Hood, George 
 
 Turner, David P. 
 
 Crowell, Seth 
 
 Hersey, Henry 
 
 Hooper Foster 
 
 Tyler, William 
 
 Crowninshield, F. B. 
 
 Hewes, James 
 
63d day.] 
 
 THE JUDICIARY. 
 
 231 
 
 Thursday,] 
 
 NAYS ABSENT DAVIS ALVORD HUNTINGTON. 
 
 [July 21st. 
 
 Heywood, Levi Peabody, George 
 
 Hillard, George S. Peabody, Nathaniel 
 
 Hindsdale, William Pease, Jeremiah, Jr. 
 
 Hobart, Aaron Penniman, John 
 
 Hobart, Henry Perkins, Jesse 
 
 Hobbs, Edwin Phinney, Silvanus B. 
 
 Hopkinson, Thomas Plunkett, William C. 
 
 Houghton, Samuel Pomroy, Jeremiah 
 
 Howard, Martin Preston, Jonathan 
 
 Howland, Abraham H. Putnam, George 
 
 Hubbard, William J. Rantoul, Robert 
 
 Hunt, William Read, James 
 
 Huntington, Asahel Reed, Sampson 
 
 Hurlburt, Samuel A. Rice, David 
 
 Hurlbut, Moses C. Richards, Luther 
 
 Jackson, Samuel Richardson, Samuel II. 
 
 James, William Rockwell, Julius 
 
 Jenkins, John Rockwood, Joseph M. 
 
 Jenks, Samuel H. Sampson, George R. 
 
 Johnson, John Sargent, John 
 
 Kellogg, Giles C. Schouler, William 
 
 Kendall, Isaac Sherril, John 
 
 Kimball, Joseph Sikes, Chester 
 
 Kinsman, Henry W. Sleeper, John S. 
 
 Knight, Hiram Smith, Matthew 
 
 Knight, Jefferson Souther, John 
 
 Knight, Joseph Stetson, Caleb 
 
 Knowlton, Charles L. Stevens, Charles G. 
 
 Kuhn, George, H. Stevens, William 
 
 Ladd, Gardner P. Stevenson, J. Thomas 
 
 Ladd, John S. Stiles, Gideon 
 Lincoln, Frederic W., Jr.Storrow, Charles S. 
 
 Littlefield, Tristram Taber, Isaac C. 
 
 Livermore, Isaac Talbot, Thomas 
 
 Lothrop, Samuel K. Taylor, Ralph 
 
 Loud, Samuel P. Thayer, Joseph 
 
 Lowell, John A. Thompson, Charles 
 
 Marble, William P. Tileston, Edmund P. 
 
 Marcy, Laban Tilton, Horatio W. 
 
 Marvin, Abijah P. Train, Charles R. 
 
 Marvin, Theophilus R. Turner, David 
 
 Meader, Reuben Tyler, John S. 
 
 Miller, Seth, Jr. Upton, George B. 
 
 Mixter, Samuel Viles, Joel 
 
 Morey, George Vinton, George A. 
 
 Morton, Elbridge G. Walcott, Samuel B. 
 
 Morton, Marcus Wales, Bradford L. 
 
 Morton, Marcus, Jr. Wallis, Freeland 
 
 Nichols, William Walker, Samuel 
 
 Norton, Alfred Warner, Marshal 
 
 Noyes, Darnel Warner, Samuel, Jr. 
 
 Ober, Joseph E. Waters, Asa H. 
 
 Oliver, Henry K. Weeks, Cyrus 
 
 Orcutt, Nathan Wetmore, Thomas 
 
 Paige, James W. Wheeler, William F. 
 
 Paine, Henry White, Benjamin 
 
 Park, John G. Wilder, Joel 
 
 Parker, Adolphus G. Wilkins, John H. 
 
 Parker, Joel Wilson, Henry 
 
 Parker, Samuel D. Wilson, Milo 
 
 Parsons, Samuel C. Winn, Jonathan B. 
 
 Parsons, Thomas A. Wood, Nathaniel 
 
 ABSENT. 
 
 Abbott, Alfred A. 
 Allen, Parsons 
 Appleton, William 
 
 Ballard, Alvah 
 Banks, Nathaniel P., Jr. 
 Bartlett, Russel 
 
 Kellogg, Martin R. 
 Lord, Otis P. 
 Payson, Thomas E. 
 Perkins, Jonathan C. 
 Prince, F. O. 
 Putnam, John A. 
 Sherman, Charles 
 Stutson, William 
 Swain, Alanson 
 Tower, Ephraim 
 Wallace, Frederick T. 
 Wilkinson, Ezra 
 Woods, Josiah B. 
 
 Bliss, Willam C. 
 Bradbury, Ebenezer 
 Bradford, William J. A. 
 Bullen, Amos H. 
 Chapin, Chester W. 
 Chapin, Daniel E. 
 Clark, Salah 
 Cole, Lansing J. 
 Curtis, Wilber 
 DeWitt, Alexander 
 Hall, Charles B. 
 Harmon, Phineas 
 Haskell, George 
 Huntington, George H. 
 
 Absent and not voting, 33. 
 
 So the amendment was not adopted. 
 
 Mr. DAVIS, of Plymouth, moved to amend 
 by striking out the word " Senate," in the fifth 
 line of Mr. Knowlton s amendment, and insert 
 in lieu thereof the word " Council ;" and also by 
 striking out the words "for the purpose of such 
 confirmation, the governor shall have the power 
 to convene the Senate, from time to time, at his 
 discretion;" so that it would read as follows: 
 
 Resolved, That it is expedient so to amend the 
 Constitution that all judicial officers, except those 
 concerning whom a different provision shall be 
 made in the Constitution, shall be nominated and 
 appointed by the governor, by and with the con 
 sent of the Council, for the term of seven years ; 
 that they may be reappointed at the expiration of 
 such term, and that all such nominations shall be 
 made and publicly announced, at least seven days 
 before such appointment. 
 
 Mr. CROWNINSHIELD asked for a division 
 of the question. 
 
 The PRESIDENT. The question will first be 
 taken upon striking out the word " Senate," and 
 inserting the word " Council." 
 
 The question was taken, and the motion was 
 agreed to ayes, 213 ; noes, 78. 
 
 The PRESIDENT. The question now recurs 
 upon the motion of the gentleman from Plymouth, 
 (Mr. Davis,) to strike out the following words : 
 "and for the purpose of such confirmation, the 
 governor shall have the power to convene the 
 Senate, from time to time, at his discretion." 
 
 The question was taken upon the amendment, 
 and it was agreed to. 
 
 Mr. ALVORD, for Montague, moved to amend 
 the amendment, by adding the following words : 
 "and the judges now in office shall hold their 
 offices according to their commission." 
 
 The question was taken on the amendment, 
 and it was agreed to. 
 
 Mr. HUNTINGTON, of Northampton, moved 
 to strike out the word " seven," in the fifth line, 
 and insert, in lieu thereof, the word "ten." 
 
232 THE JUDICIARY. 
 
 [63d day. 
 
 Thursday,] HALLETT MORTON STEVENSON BUTLER YEAS. [July 21st. 
 
 The question was taken upon the amendment, Alvord, D. W. 
 
 Greene, William B. 
 
 and it was rejected ayes, 163 ; noes, 180. 
 Mr. HALLETT, for Wilbraham, moved to 
 amend by inserting in the first line, after the 
 
 Austin, George 
 Baker, Hillel 
 Ball, George S. 
 Bancroft, Alpheus 
 
 Griswold, Josiah W. 
 Griswold, Whiting 
 Hadley, Samuel P. 
 Hallett, B. F. 
 
 word " that," the following words : " from and 
 
 Barrett, Marcus 
 
 Hapgood, Lyman W. 
 
 after seven years from the adoption of this 
 
 Bates, Eliakim A. 
 
 Hapgood, Seth 
 
 amendment." 
 
 Bates, Moses, Jr., 
 
 Haskins, William 
 
 Mr. MORTON, of Andover. I move to amend 
 the amendment of the gentleman from Worcester, 
 
 Bennett, William, Jr. 
 Bigelow, Edward B. 
 Bird, Francis W. 
 
 Hawkes, Stephen E. 
 Hay den, Isaac 
 Hazewell, Charles C. 
 
 by striking out the word "seven," and inserting 
 
 Bishop, Henry W. 
 
 Heath, Ezra, 2d 
 
 the word "ten." 
 
 Booth, William S. 
 
 Hewes, William II. 
 
 Mr. BREED, of Lynn. I ask for the yeas and 
 
 Bout well, Sewell 
 
 Hobart, Henry 
 
 nays on that question. 
 
 Bradford, William J. A. 
 
 Holder, Nathaniel 
 
 The yeas and nays were not ordered. 
 Mr. BUTLER, of Lowell. After the motion 
 
 Breed, Hirm N. 
 Bronson, Asa 
 Brown, Adolphus F. 
 
 Hood, George 
 Hooper, Foster 
 Howard, Martin 
 
 to strike out "seven" has been disposed of, can 
 
 Brown, Alpheus 11. 
 
 Hoyt, Henry K. 
 
 the motion be renewed by simply adding a word 
 
 Brown, Artemas 
 
 Hunt, Charles E. 
 
 to be inserted ? 
 
 Brown, Hammond 
 
 Hurlbut, Moses C. 
 
 The PRESIDENT. The Chair is of opinion 
 that such motion is in order. 
 The question was taken, and, on a division, 
 
 Brownell, Frederick 
 Brownell, Joseph 
 Bryant, Patrick 
 Buck, Asahel 
 
 Hyde, Benjamin D. 
 Ide, Abijah M., Jr. 
 Jacobs, John 
 Keyes, Edward L. 
 
 there were ayes, 186 ; noes, 173. 
 
 Burlingame, Alison 
 
 Kimball, Joseph 
 
 So the amendment was adopted. 
 
 Butler, Benjamin F. 
 
 Kingman, Joseph 
 
 Mr. STEVENSON, of Boston, moved to amend 
 
 Case, Isaac 
 
 Knight, Hiram 
 
 the amendment, by inserting, in the third line, 
 after the word "Constitution," the words, "and 
 
 Childs, Josiah 
 Clark, Henry 
 Clark, Ransom 
 
 Knight, Jefferson 
 Knowlton, J. S. C. 
 Knowlton, William H. 
 
 the justices of the supreme judicial court." 
 
 Clarke, Alpheus B. 
 
 Knox, Albert 
 
 Mr. HALLETT. I suppose the gentleman 
 
 Clarke, Still man 
 
 Ladd, Gardner P. 
 
 understands, and intends that we shall under 
 
 Cleverly, William 
 
 Langdon, Wilber C. 
 
 stand, that an invidious distinction is to be cre 
 
 Cole, Sumner 
 
 Lawrence, Luther 
 
 ated between different classes of justices. 
 
 Crane, George B. 
 Cressy, Oliver S. 
 
 Leland, Alden 
 Little, Otis 
 
 The question was taken on the amendment, 
 
 Cross, Joseph W. 
 
 Loomis, E. Justin 
 
 and it was rejected. 
 
 Cushman, Henry W. 
 
 Mason, Charles 
 
 The question then recurred on the adoption of 
 
 Cushman, Thomas 
 
 Merritt, Simeon 
 
 the amendment of the gentleman from Worcester, 
 as amended, which is as follows : 
 
 Davis, Ebenezer 
 Davis, Isaac 
 Davis, Robert T. 
 
 Monroe, James L. 
 Moore, James M. 
 Morton, Elbridge G. 
 
 Resolved, That it is expedient so to amend the 
 
 Day, Gilman 
 
 Morton, William S. 
 
 Constitution that all judicial officers, except those 
 
 Dean, Silas 
 
 Nayson, Jonathan 
 
 concerning whom a different provision shall be 
 
 Denton, Augustus 
 
 Newman, Charles 
 
 made in the Constitution, shall be nominated and 
 
 Duncan, Samuel 
 
 Nichols, William 
 
 appointed by the Governor, by and with the con 
 
 Dunham, Bradish 
 
 Nute, Andrew T. 
 
 sent of the Council, for the term of ten years ; 
 
 Earle, John M. 
 
 Osgood, Charles 
 
 that they may be reappointed at the expiration of 
 
 Easland, Peter 
 
 Packer, E. Wing 
 
 such term, and that all such nominations shall be 
 
 Eaton, Calvin D. 
 
 Paine, Benjamin 
 
 made at least seven days before such appoint 
 
 Edwards, Elisha 
 
 Parris, Jonathan 
 
 ment ; and the judges now in office shall hold 
 
 Ely, Joseph M. 
 
 Partridge, John 
 
 their offices according to their commissions. 
 
 Fellows, James K. 
 
 Peabody, Nathaniel 
 
 
 Fisk, Lyman 
 
 Penniman, John 
 
 Mr. BUTLER, of Lowell. I move that the 
 
 Fitch, Ezekiel W. 
 
 Perkins, Daniel A. 
 
 vote by which the word " seven " was struck 
 
 Foster, Abram 
 
 Perkins, Noah C. 
 
 out and the word " ten " inserted, be reconsidered, 
 and on that question I ask the yeas and nays. 
 The yeas and nays were ordered, and being 
 
 Freeman, James M. 
 French, Charles A. 
 French, Rodney 
 French, Samuel 
 
 Phelps, Charles 
 Phinney, Sylvanus B. 
 Pierce, Henry 
 Pool, James ivl. 
 
 taken, there were yeas, 188 ; nays, 195 as fol 
 
 Frothirgham, R d, Jr. 
 
 Powers, Peter 
 
 lows : 
 
 Gardner, Johnson 
 
 Putnam, John A. 
 
 
 Giles, Charles G. 
 
 Rawson, Silas 
 
 YEAS. 
 
 Gooch, Daniel W. 
 
 Richardson, Daniel 
 
 Abbott, Josiah G. Allen, James B. 
 
 Gooding, Leonard 
 
 Richardson, Nathan 
 
 Adams, Shubael P. Allen, Parsons 
 
 Graves, John W. 
 
 Richardson, Samuel H. 
 
 Allen, Charles Allis, Josiah 
 
 Green, Jabez 
 
 Rogers, John 
 
63d day.] 
 
 THE JUDICIARY. 
 
 233 
 
 Thursday,] 
 
 NATES ABSENT. 
 
 [July 21st. 
 
 Ross, David S. 
 
 Turner, David P. 
 
 Hay ward, George 
 
 Park, John G. 
 
 Royce, James C. 
 
 Underwood, Orison 
 
 Heard, Charles 
 
 Parker, Adolphus G. 
 
 Sanderson, Amasa 
 
 Viles, Joel 
 
 Henry, Samuel 
 
 Parker, Joel 
 
 Sanderson, Chester 
 
 Vinton, George A. 
 
 Hersey, Henry 
 
 Parker, Samuel D. 
 
 Sheldon, Luther 
 
 Wallis, Freeland 
 
 Ilewes, James 
 
 Parsons, Samuel C. 
 
 Sherril, John 
 
 Walker, Araasa 
 
 Heywood, Levi 
 
 Parsons, Thomas A. 
 
 Simmons, Perez 
 
 Ward, Andrew II. 
 
 Hillard, George S. 
 
 Peabcdy, George 
 
 Simonds, John W. 
 
 Warner, Marshal 
 
 Hinsdale, William 
 
 Pease, Jeremiah, Jr. 
 
 Smith, Matthew 
 
 Warner, Samuel, Jr. 
 
 Hob art, Aaron 
 
 Perkins, Jesse 
 
 Sprague, Melzar 
 
 Weston, Gershom B. 
 
 Hobbs, Edwin 
 
 Plunkett, William C. 
 
 Spooner, Samuel W. 
 
 White, George 
 
 Hopkinson, Thomas 
 
 Pomroy, Jeremian 
 
 Stevens, Granville 
 
 Whitney, Daniel S. 
 
 Houghton, Samuel 
 
 Preston, Jonathan 
 
 Stevens, Joseph L., Jr. 
 
 Whitney, James S. 
 
 Howland, Abraham H. 
 
 Putnam, George 
 
 Stevens, William 
 
 Wilbur, Daniel 
 
 Hubbard, William J. 
 
 Runtoul, Robert 
 
 Stiles, Gideon 
 
 Wilbur, Joseph 
 
 Hunt, William 
 
 Read, James 
 
 Strong, Alfred L. 
 
 Williams, J. B. 
 
 Huntington, Asahel 
 
 Reed, Sampson 
 
 Sumner, Charles 
 
 Wilson, Willard 
 
 Huntington, Charles P. 
 
 Rice, David 
 
 Taft, Arnold 
 
 Winslow, Levi M. 
 
 Hurlburt, Samuel A. 
 
 Richards, Luther 
 
 Thayer, Joseph 
 
 Wood, Charles C. 
 
 Jackson, Samuel 
 
 Ring, Elkaiiah, Jr. 
 
 Thaver, Willard, 2d 
 
 Wood, Nathaniel 
 
 James, William 
 
 Rockwell, Julius 
 
 Thomas, John W. 
 
 Wood, Otis 
 
 Jenkins, John 
 
 RockAvood, Joseph M. 
 
 Thompson, Charles 
 
 Wood, William H. 
 
 Jenks, Samuel II. 
 
 Sampson, George R. 
 
 Tilton, Abraham 
 
 Wright, Ezekiel 
 
 Johnson, John 
 
 Sargent, John 
 
 
 
 Kellogg, Giles C. 
 
 Schouler, William 
 
 NAYS. 
 
 Kendall, Isaac 
 
 Sikes, Chester 
 
 Adams, Benjamin P. 
 Aldrich, P. Emory 
 
 Crockett, George W. 
 Crosbv, Leander 
 
 Kinsman, Henry W. 
 Knight, Joseph 
 Kno wlton, Charles L. 
 
 Sleeper, John S. 
 Souther, John 
 Stetson, Caleb 
 
 Allen, Joel C. 
 Alley, John B. 
 
 Cro we ll, Seth 
 Crowninshield, F. B. 
 
 Kuhn, George H. 
 Ladd, John S. 
 
 Stevens, Charles G. 
 Stevenson, J. Thomas 
 
 Andrews, Robert 
 
 Cummings, Joseph 
 
 Lawton, Job G., Jr. 
 
 Storrow, Charles S. 
 
 Aspinwall, William 
 Atwood, David C. 
 
 Cutler, Simeon N. 
 Dana, Richard H., Jr. 
 
 Lincoln, Abishai 
 Lincoln, Fred. W., Jr. 
 
 Sumner, Increase 
 Taber, Isaac C. 
 
 Ayres, Samuel 
 
 Davis, Charles G. 
 
 Littlefield, Tristram 
 
 Talbot, Thomas 
 
 Barrows, Joseph 
 Bartlett, Sidney 
 Beach, Erasmus D. 
 Beal, John 
 Beebe, James M. 
 Bell, Luther V. 
 Bennett, Zephaniah 
 Bigelow, Jacob 
 Blagden, George W. 
 Bliss, Gad O. 
 Boutwell, George S. 
 Braman, Milton P. 
 Brewster, Osmvn 
 Brinley, Francis 
 Briggs, George N. 
 Brown, Hiram C. 
 Bullock, Rufus 
 Bumpus, Cephas C. 
 Cady, Henry 
 Carter, Timothy W. 
 Chandler, Amariah 
 Chapin, Chester W. 
 Chapin, Daniel E. 
 
 Davis, John 
 Davis, Solomon 
 Dawes, Henry L. 
 Dehon, William 
 Deming, Elijah S. 
 Dennison, Hiram S. 
 Dorman, Moses 
 Eames, Philip 
 Easton, James, 2d 
 Edwards, Samuel 
 Ely, Homer 
 Eustis, William T. 
 Farwell, A. G. 
 Fay, Sullivan 
 Fiske, Emery 
 Foster, Aaron 
 Fowle, Samuel 
 Fowler, Samuel P. 
 French, Charles H. 
 Gale, Luther 
 Gardner, Henry J. 
 Gates, Elbridge 
 Gilbert, Wanton C. 
 
 Livermore, Isaac 
 Lord, Otis P. 
 Lothrop, Samuel K. 
 Loud, Samuel P. 
 Lowell, John A. 
 Marcy, Laban 
 Marvin, Abijah P. 
 Marvin, Theophilus R. 
 Meader, Reuben 
 Miller, Seth, Jr. 
 Mixter, Samuel 
 Morey, George 
 Morss, Joseph B. 
 Morton, Marcus 
 Morton, Marcus, Jr. 
 Norton, All red 
 Noyes, Daniel 
 Ober, Joseph E. 
 Oliver, Henry K. 
 Orcutt, Nathan 
 Orne, Benjamin S. 
 Paige, James W. 
 
 Taylor, Ralph 
 Tileston, Edmund P. 
 Tilton, Horatio W. 
 Train, Charles R,. 
 Turner, David 
 Tyler, John S. 
 Upham, Charles W. 
 Upton, George B. 
 W r aleott, Sanrael B. 
 Wales, Bradford L. 
 Wallace,. Frederick T. 
 W alker, Samuel 
 Weeks, Cyrus 
 Wetmore, Thomas 
 Wheeler, William F, 
 White, Bemamin 
 Wilder, Joel 
 "Wilkins, John H. 
 Williams, Henry 
 Wilson, Milo 
 Winn, Jonathan B. 
 
 Chapin, Henry 
 
 Gilbert, Washington 
 
 
 
 Choate, Rufus 
 
 Giles, Joel 
 
 ABSiiiNT. 
 
 Churchill, J. McKean 
 
 Gould, Robert 
 
 Abbott, Alfred A. 
 
 Clark, Salah 
 
 Coggin, Jacob 
 
 Goulding, Dalton 
 
 Appleton, William 
 
 Curtis, Wilbur 
 
 Cogswell, Nathaniel 
 
 Goulding, Jason 
 
 Ballard, Alvah 
 
 DeWitt, Alexander 
 
 Cole, Lansing J. 
 
 Gray, John C. 
 
 Banks, Nathaniel P., Jr. 
 
 Doane, James C. 
 
 Conkey, Ithamar 
 
 Greeiileaf, Simon 
 
 Bartlett, Russel 
 
 Durgin, John M. 
 
 Cook, Charles E. 
 
 Hale, Artemas 
 
 Bliss, William C. 
 
 Eaton, Lilley 
 
 Cooledge, Henry F. 
 
 Hale, Nathan 
 
 Bradbury, Ebenezer 
 
 Hall, Charles B. 
 
 Copeland, Benjamin F. 
 
 Hammond, A. B. 
 
 Bullen, Amos H. 
 
 Harmon, Phineas 
 
 Crittenden, Simeon 
 
 Hathaway, Elnathan P. 
 
 Caruthers, William 
 
 Haskell, George 
 
 
 16 
 
 
234 
 
 THE JUDICIARY. 
 
 [63d day. 
 
 Thursday,] 
 
 HOOPER ALLEN WHITNEY HALLETT THOMAS KEYES. [July 21st. 
 
 Huntington, George H. Stacy, Eben H. 
 
 Kellogg, Martin R. Stutson, William 
 
 Marble, William P. Swain, Alanson 
 
 Nash, Hiram Tower, Ephraim 
 
 Paine, Henry Tyler, William 
 
 Payson, Thomas E. Waters, Asa H. 
 
 Perkins, Jonathan C. Wilkinson, Ezra 
 
 Prince, F. O. Wilson, Henry 
 
 Sherman, Charles Woods, Josiah B. 
 
 Absent and not voting, 36. 
 
 So the motion to reconsider was rejected. 
 
 Mr. HOOPER, of Fall River. I move to 
 amend the amendment by adding at the end, the 
 following : 
 
 Provided, That no judge shall continue to hold 
 office after he shall have arrived at the age of 
 seventy years. 
 
 Mr. ALLEN, of Worcester. I wish to make 
 the inquiry whether that will apply to the judges 
 now in office, so as to remove the present chief 
 justice from the bench ? 
 
 Mr. WHITNEY, of Conway. I move to 
 amend the amendment by inserting after the 
 word " judge," the words " hereafter to be ap 
 pointed." 
 
 Mr. HOOPER. I accept that modification. 
 
 The question was taken on the amendment, 
 and on a division, there were ayes, 158 ; noes, 
 ISA. 
 
 So the amendment was agreed to. 
 
 MX. HALLETT, for Wilbraham. I move to 
 amend by adding, after the words " all such nom 
 inations shall be made," the words " and officially 
 publicly .announced." 
 
 The amendment was agreed to. 
 
 Mr. ALLEN. As the vote was small, compara 
 tively, by which the amendment of the gentleman 
 from Fall J?uver was adopted, to test the sense of 
 the Convention upon the question of changing 
 the tenure of the judicial office from seventy to 
 seventy -five years, I move a reconsideration of 
 that vote. 
 
 The question w^s taken, and on a division, 
 there were ayes, 168 ; noes, 162. 
 
 So the caotion to reconsider was agreed to. 
 
 Mr. THOMAS., of Weymouth. I move to 
 amend by "inserting -eighty instead of seventy. 
 
 The PRESIDENT. The motion is not in 
 order. 
 
 Mr. ALLEN. I cannot give the reasons for 
 wishing to substitute seventy-Eye, but I ask the 
 gentleman from Fall Rivej if he will not accept 
 that modification. 
 
 Mr. HOOPER. I suppose the question has 
 been decided by the last vote ; but I will accept 
 of that modification with the striking out of the 
 words "hereafter appointed." 
 
 Mr. KEYES, for Abington. I know not how 
 the gentleman from Fall River presumes that the 
 question has been decided as he says, in one way 
 more than in another. The Convention may 
 turn two or three more somersets. 
 
 The question recurred on the adoption of the 
 amendment offered by Mr. Hooper, of Fall River, 
 and on a division, there were ayes, 160 ; noes, 
 168. 
 
 So the amendment was rejected. 
 
 Mr. ALLEN. I now move to amend the 
 same amendment, substituting " seventy- five " 
 in the place of the word " seventy " as the limit 
 of the tenure of the judges. 
 
 Mr. THOMAS, of Weymouth. Is the amend 
 ment which I proposed, in order. 
 
 The PRESIDENT. It is not. 
 
 Mr. BUTLER. I rise to a question of order. 
 In filling up amendments with numbers, is it not 
 necessary to have the highest number which is 
 proposed, put first r When a gentleman moves 
 seventy- five, is it not in order for another gentle 
 man to move to insert eighty, or for me to move 
 one hundred ? And must not the question be 
 taken on the longest time first ? 
 
 The PRESIDENT. The Chair is of opinion 
 that it is not in order, and that the motion of the 
 gentleman from Worcester is in order. 
 
 Mr. HALLETT. I would like to make the 
 inquiry, whether it is not out of order to propose 
 to have a judge hold his office beyond the years 
 allotted to man in the Scripture ? [Laugh 
 ter.] 
 
 Mr. KEYES, for Abington. Inasmuch as no 
 amendment can now be offered, I propose, if this 
 amendment is adopted, to offer an amendment 
 inserting the words " one hundred and fifty." 
 [Laughter.] It is known that Dr. Parr lived to, 
 that age or more, and perhaps some of our judges 
 may. 
 
 The question was taken on the amendment of 
 the gentleman from Worcester, and it was not 
 agreed to. 
 
 Mr. THOMAS, of Weymouth. I now move 
 to strike out seventy-five and insert the word 
 " eighty." 
 
 The question was taken, and the amendment 
 was rejected. 
 
 Mr. STETSON, of Braintree, moved to amend 
 the resolution so that no judge should continue to 
 hold office after he shall have arrived at the age of 
 seventy- two years. 
 
 The motion was not agreed to. 
 
 Mr. DANA moved to amend the resolution by 
 adding the following words : 
 
 Provided that no judge shall continue to hold 
 
63d day.] THE JUDICIARY. 
 
 235 
 
 Thursday,] KINSMAN GOOCH YEAS. 
 
 [July 21st. 
 
 office after he shall have arrived at the age of 
 
 YEAS. 
 
 seventy-five years. 
 
 Allen, Charles 
 
 Fowle, Samuel 
 
 Mr. BUTLER inquired whether that amend 
 
 Allen, James B. 
 
 Freeman, James M. 
 
 ment applied to the present judges, or those which 
 should be hereafter appointed. 
 Mr. DANA said that it was intended to cover 
 
 Allen, Parsons 
 Alley, John B. 
 Allis, Josiah 
 Austin, George 
 
 French, Rodney 
 French, Samuel 
 Frothmgham, R., Jr. 
 Gale, Luther 
 
 both classes of judges. 
 
 Ball, George S. 
 
 Gardner, Johnson 
 
 Mr. KINSMAN, of Newburyport. I would 
 
 Barrett, Marcus 
 
 Giles, Charles G. 
 
 inquire of the Chair, whether the Convention 
 
 Bates, Eliakim A. 
 
 Giles, Joel 
 
 have not already passed upon this subject, by 
 a previous vote that judges shall continue in office 
 
 Bates, Moses, Jr. 
 Beal, John 
 Bennett, William, Jr. 
 
 Gooch, Daniel W. 
 Gooding, Leonard 
 Graves, John W. 
 
 according to their present commissions ? If that 
 
 Bennett, Zephaniah 
 
 Green, Jabez 
 
 is the case, it seems to me that the gentleman for 
 
 Bigelow, Edward B. 
 
 Greene, William B. 
 
 Manchester cannot attain his object unless he 
 
 Booth, William S. 
 
 Griswold, Josiah W. 
 
 moves a reconsideration of that vote. 
 The PRESIDENT. The Chair will state the 
 
 Boutwell, George S. 
 B outwell, Sewell 
 Bradford, William J. A 
 
 Griswold, Whiting 
 Hadlev, Samuel P. 
 HaUett, B. F. 
 
 question. The resolution closes with the follow 
 
 Bronson, Asa 
 
 Hapgood, Lyman W. 
 
 ing words : " they may be reappointed at the 
 
 Brown, Adolphus F. 
 
 Hapgood, Seth 
 
 expiration of such term, and that all such nomi 
 
 Brown, Artcmas 
 
 Haskins, William 
 
 nations shall be made and publicly announced at 
 least seven days before such appointment; and 
 the judges now in office shall hold their offices 
 
 Brown, Hammond 
 Brownell, Frederick 
 Brownell, Joseph 
 Bryant, Patrick 
 
 Hathaway, Elnathar: P. 
 Hay den, Isaac 
 Hazewell, Charles C. 
 Heath, Ezra, 2d 
 
 according to their commissions : provided, that no 
 
 Buck, Asahel 
 
 Hewes, James 
 
 judge shall continue to hold office after he shall 
 
 Cady, Henry 
 
 Hewes, William H. 
 
 have arrived at the age of seventy-five years." 
 
 Case, Isaac 
 
 Hobart, Aaron 
 
 The Chair is of the opinion that the motion made 
 by the delegate for Manchester is in order. 
 Mr. CHAPIN, of Worcester. I would like to 
 
 Chapin, Daniel E. 
 Childs, Josiah 
 Clark, Henry 
 Clark, Ransom 
 
 Hobart, Henry 
 Hobbs, Edwin 
 Hooper, Foster 
 Howard, Martin 
 
 ask, if our best judge now upon the bench has 
 
 Clarke, Stillman 
 
 Howland, Abraham H. 
 
 not already attained that age ? 
 
 Cleverly, William 
 
 Hunt, Charles E. 
 
 Mr. DANA. He is only seventy-two. 
 The question being then taken on the amend 
 ment of Mr. Dana, on a division there were 
 
 Cooledge, Henry F. 
 Crane, George B. 
 Cressy, Oliver S. 
 Crittenden, Simeon 
 
 Huntington, Charles P, 
 Hurlbut, Moses C. 
 Hyde, Benjamin D. 
 Ide, Abijah M., Jr. 
 
 ayes, 102 ; noes, 193 so it was not agreed to. 
 
 Cross, Joseph W. 
 
 Jacobs, John 
 
 Mr. GOOCH, of Melrose, moved to amend the 
 
 Cushman, Henry W. 
 
 Johnson, John 
 
 resolution by striking out the words " according 
 to their commissions," and inserting in lieu thereof 
 the words " for ten years from the adoption of 
 
 Cushman, Thomas 
 Cutler, Simeon N. 
 Davis, Charles G. 
 Davis, Isaac 
 
 Keyes, Edward L. 
 Kimball, Joseph 
 Kingman, Joseph 
 Knight, Hiram 
 
 this amendment." 
 
 Davis, Robert T. 
 
 Knight, Jefferson 
 
 The PRESIDENT ruled the amendment out 
 
 Day, Gilman 
 
 Knowlton, Charles L. 
 
 of order. 
 
 Dean, Silas 
 
 Knowlton, J. S. C. 
 
 Mr. GOOCH. If my amendment is not in 
 
 Deming, Elijah S. 
 
 Knowlton, William H. 
 
 order in its present shape, I move to reconsider 
 
 Deiiton, Augustus 
 Duncan, Samuel 
 
 Knox, Albert 
 Ladd, Gardner P. 
 
 the vote by which the amendment of the gentle 
 
 Dunham, Bradish 
 
 Lawrence, Luther 
 
 man from Montague was adopted by. the Conven 
 
 Eames, Philip 
 
 Lawton, Job G., Jr, 
 
 tion, in order that I may move this amendment. 
 
 Earle, John M. 
 
 Leland, Alden 
 
 The question being then taken on reconsider 
 
 Easland, Peter 
 
 Lincoln, Abishai 
 
 ing the vote by which the following words were 
 adopted, viz. : " and the judges now in office shall 
 hold their offices according to their commissions," 
 
 Easton, James, 2d 
 Eaton, Calvin D. 
 Edwards, Elisha 
 Edwards, Samuel 
 
 Little, Otis 
 Littlefield, Tristraia 
 Loomis, E. Justin 
 Marble, William P. 
 
 it was not agreed to. 
 
 Ely, Joseph M. 
 
 Marvin, Abijah P, 
 
 The question then recurred on striking out the 
 
 Fay, Sullivan 
 
 Mason, Charles 
 
 whole of the fourth resolution, and substituting 
 therefor the amendment of Mr. Knowlton, as 
 
 Fellows, James K. 
 Fisk, Lyman 
 Fiske Emery 
 
 Meader, Reuben 
 Merritt, Simeon 
 Monroe, James L. 
 
 amended by the Convention ; and the question. 
 
 Fitch, Ezekiel W. 
 
 Moore, James M. 
 
 being then taken by yeas and nays, resulted 
 
 Foster, Aaron 
 
 Morton, Elbridge G. 
 
 yeas, 200 ; nays, 164 as follows : 
 
 Foster, Abram 
 
 Morton, Marcus, Jr. 
 
236 
 
 THE JUDICIARY. 
 
 [63d day. 
 
 Thursday,] 
 
 YEAS NAYS ABSENTEES. 
 
 [July 21st. 
 
 Morton, William S. 
 
 Spooner, Samuel W. Goulding, Dalton 
 
 Parker, Samuel D. 
 
 Nash, Hiram 
 
 Stacy, Ebon H. 
 
 Goulding, Jason 
 
 Parsons, Thomas A. 
 
 Newman, Charles 
 
 Stetson, Caleb 
 
 Gray, John C. 
 
 Peabody, George 
 
 Nichols, William 
 
 Stevens, Granville 
 
 Greenleaf, Simon 
 
 Pease, Jeremiah, Jr. 
 
 Orne, Benjamin S. 
 
 Stiles, Gideon 
 
 Hale, Artemas 
 
 Perkins, Jesse 
 
 Osgood, Charles 
 
 Sumner, Charles 
 
 Hale, Nathan 
 
 Plunkett, William C, 
 
 Packer, E. Wing 
 
 Sumner, Increase 
 
 Hammond, A. B. 
 
 Pomroy, Jeremiah 
 
 Paine, Benjamin 
 
 Taft, Arnold 
 
 Hawkes, Stephen E. 
 
 Preston, Jonathan 
 
 Parris, Jonathan 
 
 Thavcr, Joseph 
 
 Havward, George 
 
 Putnam, George 
 
 Parsons, Samuel C. 
 
 Thayer, Willard, 2d 
 
 Heard, Charles 
 
 Rantoul, Robert 
 
 Partridge, John 
 
 Thomas, John W. 
 
 Henry, Samuel 
 
 Read, James 
 
 Pcahody, Nathaniel 
 Penniman, John 
 
 Thompson, Charles 
 Tilton, Abraham 
 
 Hersey, Henry 
 Hillard, George S. 
 
 Reed, Sampson 
 Richards, Luther 
 
 Perkins, Daniel A. 
 
 Tilton, Horatio W. 
 
 Hinsdale, William 
 
 Rockwell, Julius 
 
 Perkins, Noah C. 
 
 Turner, David P. 
 
 Holder, Nathaniel 
 
 Royce, James C. 
 
 Phelps, Charles 
 
 Underwood, Orison 
 
 Hood, George 
 
 Sampson, George R. 
 
 Phinney, Silvanus B. 
 
 Viles, Joel 
 
 Hopkinson, Thomas 
 
 Sargent, John 
 
 Pierce, Henry 
 
 Vinton, George A. 
 
 Hough ton, Samuel 
 
 Schouler, William 
 
 Pool, James M. 
 
 Wallace, Frederick T. 
 
 Hovt, Henry K. 
 
 Sherril, John 
 
 Powers, Peter 
 
 Wallis, Freeland 
 
 Hubbard, William J. 
 
 Sikes, Chester 
 
 Putnam, John A. 
 
 Walker, Amasa 
 
 Hunt, William 
 
 Simmons, Perez 
 
 Puce, David 
 
 Ward, Andrew II. 
 
 Huntington, Asahel 
 
 Sleeper, John S. 
 
 Richardson, Daniel 
 
 Warner, Samuel, Jr. 
 
 Hurlburt, Samuel A. 
 
 Souther, John 
 
 Richardson, Nathan 
 
 Waters, Asa H. 
 
 Jackson, Samuel 
 
 Stevens, Charles G. 
 
 Richardson, Samuel II. 
 
 Weston, Gershom, B. 
 
 James, William 
 
 Stevenson, J. Thomas 
 
 Ring, Elkanah, Jr. 
 
 Whitney, Daniel S. 
 
 Jenkins, John 
 
 Storrow, Charles S. 
 
 Rockwood, Joseph 
 
 Wilbur, Daniel 
 
 Jenks, Samuel H. 
 
 Taber, Isaac C. 
 
 Rogers, John 
 
 Wilbur, Joseph 
 
 Kellogg, Giles C. 
 
 Talbot, Thomas 
 
 Ross, David S. 
 
 Williams, J. B. 
 
 Kinsman, Henry W. 
 
 Taylor, Ralph 
 
 Sanderson, Amasa 
 
 Wilson, Henry 
 
 Knight, Joseph 
 
 Tileston, Edmund P. 
 
 Sheldon, Luther 
 
 Wilson, Willard 
 
 Ladcl, John S. 
 
 Train, Charles R. 
 
 Simonds, John W. 
 
 Winn, Jonathan B. 
 
 Lincoln, F. W., Jr. 
 
 Turner, David 
 
 Smith, Matthew 
 
 Winslow, Levi M. 
 
 Livermore, Isaac 
 
 Tyler, John S. 
 
 Sprague, Melzar 
 
 Wood, Nathaniel 
 
 Lord, Otis P. 
 
 Tyler, William 
 
 
 
 Lothrop, Samuel K. 
 
 TJpham, Charles W. 
 
 NAYS. 
 
 Loud, Samuel P. 
 
 Upton, George B. 
 
 Abbott, Josiah G. 
 Adams, Benjamin P. 
 Adams, Shubacl P. 
 Aldrich, P. Emory 
 Allen, Joel C. 
 Alvord, D. W. 
 Andrews, Robert 
 Aspinwall, William 
 Atwood, David C. 
 Ayres, Samuel 
 Barrows, Joseph 
 Bartlett, Sidney 
 Beebe, James M. 
 Bell, Luther V. 
 Bigelow, Jacob 
 
 Chandler, Amariah 
 Chapin, Henry 
 Choate, Rufus 
 Churchill, J. McKean 
 Coggin, Jacob 
 Cogswell, Nathaniel 
 Conkey, Ithamar 
 Cook, Charles E. 
 Copeland, Benjamin F. 
 Crockett, George W. 
 Crosby, Leander 
 Crowell, Seth 
 CroAviihishield, F. B. 
 Cummings, Joseph 
 Dana, Richard II., Jr. 
 
 Lowell, John A. 
 Marvin, Theophilus R. 
 Miller, Seth, Jr. 
 Mixter, Samuel 
 Morey, George 
 Morss, Joseph B. 
 Morton, Marcus 
 Noyes, Daniel 
 Nute, Andrew T. 
 Oliver, Hcnrv K. 
 Orcutt, Nathan 
 Paige, James W. 
 Park, John G. 
 Parker, Adolphus G. 
 Parker, Joel 
 
 Walcott, Samuel B. 
 Wales, Bradford L. 
 Walker, Samuel 
 Weeks, Cyrus 
 Wetmore, Thomas 
 Wheeler, William F. 
 White, Benjamin 
 White, George 
 Wilder, Joel 
 Wilkins, John II. 
 Williams, Henry 
 Wilson, Milo 
 Wood, Charles C. 
 Wood, Otis 
 Wright, Ezekiel 
 
 Bird, Francis W. 
 
 Davis, Ebciiezer 
 
 
 
 Blagden, George W. 
 
 Davis, John 
 
 ABSENT. 
 
 Bliss, Gad O. 
 Braman, Milton P. 
 Breed, Hiram N. 
 
 Davis, Solomon 
 Dawes, Henry L. 
 Dehon, William 
 
 Abbott, Alfred A. 
 Appleton, William 
 Baker, Hillel 
 
 Clarke, Alpheus B. 
 Cole, Lansing J. 
 Cole, Sunnier 
 
 Brewster, Osmyn 
 
 Denison, Hiram S. 
 
 Ballard, Alvah 
 
 Curtis, Wilber 
 
 Brmley, Francis 
 
 Doane, James C. 
 
 Bancroft, Alpheus 
 
 DeWitt, Alexander 
 
 Briggs, George N. 
 
 Dorman, Moses 
 
 Banks, Nath l P., Jr. 
 
 Durgin, John M. 
 
 Brown, Alpheus R. 
 
 Ely, Homer 
 
 Bartlett, Russel 
 
 Eaton, Lilley 
 
 Brown, Hiram C. 
 
 Farwell, A. G. 
 
 Beach, Erasmus D. 
 
 Eustis, William T. 
 
 Bullock, Rufus 
 Bumpus Cephas C. 
 
 Fowler, Samuel P. 
 French, Charles H. 
 
 Bishop, Henry W. 
 Bliss, William C. 
 
 French, Charles A. 
 Gilbert, Washington 
 
 Burlingame, Anson 
 Butler, Benjamin F. 
 
 Gardner, Henry J. 
 Gates, Elbridge 
 
 Bradbury, Ebenezer 
 Bullen, Amos II. 
 
 Hall, Charles B. 
 Harmon, Phineas 
 
 Carter, Timothy W. 
 Carruthers, William 
 
 Gilbert, Wanton C. 
 Gould, Robert 
 
 Chapin, Chester W. 
 Clark, Salah 
 
 Haskell, George 
 Heywood, Levi 
 
63d day.] 
 
 THE JUDICIARY. 
 
 237 
 
 Thursday,] 
 
 HOOPER LORD SHELDOX WHEELER. 
 
 [July 21st. 
 
 Sanderson, Chester 
 Sherman, Charles 
 Stevens, Joseph L., Jr. 
 Stevens, William 
 Strong, Alfred L. 
 Stutson, William 
 Swain, Alanson 
 Tower, Ephraim 
 Warner, Marshal 
 Whitney, James S. 
 Wilkinson, Ezra 
 Wood, William H. 
 Woods, Josiah B. 
 
 Huntington, George H. 
 Kellogg, Martin 11. 
 Kendall, Isaac 
 Kuhn, George H. 
 Langdon, Wilber C. 
 Marcy, Laban 
 Nayson, Jonathan 
 Norton, Alfred 
 Ober, Joseph E. 
 Paine, Henry 
 Payson, Thomas E. 
 Perkins, Jonathan C. 
 Prince, F. O. 
 Rawson, Silas 
 
 Absent and not voting, 66. 
 
 So the amendment was agreed to. 
 
 The question then recurred on the final passage 
 of the resolutions as amended. 
 
 Mr. LORD, of Salem, asked that the question 
 on the resolutions be taken separately. 
 
 Mr. HOOPER, of Fall River, moved to amend 
 the first resolution, by adding at the close the 
 following words : " and that each branch of the 
 legislature shall have authority to require the 
 opinion of the justices of the supreme judicial 
 court on questions of constitutional construction." 
 
 Pending this question, Mr. PHINNEY, for 
 Chatham, moved to adjourn ; which was not 
 agreed to. 
 
 The question being then taken on the amend 
 ment offered by Mr. Hooper, it was not agreed to. 
 
 The first three resolutions were then severally 
 read and finally passed ; and the question was 
 stated on the fourth as amended. 
 
 Mr. LORD, of Salem. I desire to know 
 whether, in the ruling of the Presiding Officer, a 
 resolution which is substituted for one that it is 
 inexpedient to act upon a certain matter, has its 
 several readings after it is substituted ; or whether, 
 this having been adopted, the question will now 
 be on its final passage ? 
 
 The PRESIDENT. The Chair rules that this 
 is the final passage of the resolution ; and the 
 question before the Convention is now on its 
 final passage. 
 
 Mr. LORD. As there has never been any 
 vote taken upon this resolution in its present 
 shape, I ask that the question may be taken by 
 yeas and nays. 
 
 Mr. WARD, of Newton. I rise to ask if the 
 yeas and nays have not already been taken upon 
 this question ? 
 
 The PRESIDENT. The yeas and nays have 
 been taken upon it as an amendment to strike 
 out the original resolution, and to substitute this, 
 but not upon its final passage. 
 
 The question being put on ordering the yeas 
 and nays, on a division, there were ayes, 59 ; 
 
 nays, 159 so the yeas and nays were ordered, 
 more than one-fifth of the members voting having 
 voted therefor. 
 
 Mr. DENTON, of Chelsea, moved that the 
 Convention adjourn. 
 
 Mr. KEYES, for Abington, called for the yeas 
 and nays on the question of adjournment, and 
 they were ordered. 
 
 Mr. SCHOULER. I rise to make an inquiry 
 of the Chair. The Convention has voted to ad 
 journ at two o clock ; and as it is not possible to 
 take the yeas and nays between this time and 
 two o clock, I wish to know whether the Con 
 vention will be adjourned as soon as that hour 
 arrives ? 
 
 The PRESIDENT. By the construction of 
 the Chair, heretofore, it will be imperative upon 
 the Chair, at the hour of two, to adjourn the Con 
 vention. 
 
 Mr. SHELDON, of Easton, moved a recon 
 sideration of the vote by which the yeas and nays 
 were ordered on the motion to adjourn, which 
 was agreed to. 
 
 The question then recurred on the motion of 
 Mr. Keyes for the yeas and nays on the question 
 of adjournment ; and they were not ordered. 
 
 The question then recurred on the motion of 
 Mr. Denton, which was agreed to ; and accord 
 ingly, at quarter before two o clock, the Con 
 vention adjourned until three o clock, P. M. 
 
 AFTERNOON SESSION. 
 The Convention reassembled, and was called 
 to order at three o clock, the President pro tern. 
 in the chair. 
 
 The Judiciary. 
 
 On motion by Mr. SCHOULER, the Conven 
 tion proceeded to the consideration of the Orders 
 of the Day, the question pending being on the 
 final passage of the fourth resolution on the sub 
 ject of the Judiciary, as amended, on which the 
 yeas and nays had been ordered. 
 
 Mr. WHEELER, of Lincoln. I would in 
 quire whether it is in order to move a reconsid 
 eration of the vote by which the yeas and nays 
 have been ordered ? 
 
 The PRESIDENT. In the opinion of the 
 Chair, it will be in order. 
 
 Mr. WHEELER. I will, then, submit that 
 motion. 
 
 Mr. LORD, of Salem. Mr. President : I rise 
 to a question of order, and that is, whether or 
 not the matter of ordering the yeas and nays is a 
 motion at all ; whether it is not a demand which 
 certain gentlemen, to wit, one- fifth of the Con- 
 
238 THE JUDICIARY. 
 
 [63d day. 
 
 Thursday,] WHEELER ELY YEAS. 
 
 [July 21st. 
 
 vention voting, have a right to make, and which 
 none others can control after it has been ordered ? 
 The language of the rule is : " On all questions 
 
 Earle, John M. 
 Easland, Peter 
 Eaton, Calvin D. 
 Edwards, Elisha 
 
 Mason, Charles 
 Meader, Rueben 
 Merritt, Simeon 
 Monroe, James L. 
 
 and motions whatsoever, the President shall take 
 
 Edwards, Samuel 
 
 Moore, James M. 
 
 the sense of the Convention by yeas and nays, 
 
 Ely, Joseph M. 
 
 Morton, Elbridge G. 
 
 provided one- fifth of the members present shall 
 so require." That is not a motion. 
 The PRESIDENT. The Chair is of opinion 
 that it is competent for every member of the 
 
 Fay, Sullivan 
 Fellows, James K. 
 Fiske, Emery 
 Fisk, Lyman 
 Fitch, Ezekiel W. 
 
 Morton, Marcus, Jr. 
 Morton, William S. 
 Nash, Hiram 
 Nayson, Jonathan 
 Newman, Charles 
 
 Convention to move a reconsideration of the vote 
 
 Foster, Aaron 
 
 Nichols, William 
 
 by which the yeas and nays were ordered, and 
 
 Foster, Abram 
 
 Ober, Joseph E. 
 
 that it is competent for a majority of the Con 
 vention to reconsider that vote. The question 
 will then recur on the motion for the yeas and 
 
 Fowle, Samuel 
 Freeman, James M. 
 French, Charles A. 
 French, Samuel 
 
 Orne, Benjamin S. 
 Osgood, Charles 
 Packer, E. Wing 
 Paine, Benjamin 
 
 nays, and one- fifth can carry that vote. 
 
 Frothingham, R., Jr. 
 
 Parris, Jonathan 
 
 Mr. WHEELER. Since it is likely that the 
 
 Gale, Luther 
 
 Parsons, Samuel C. 
 
 motion which I made will give rise to discussion, 
 
 Gilbert, Washington 
 
 Partridge, John 
 
 I withdraw it. 
 
 Giles, Charles G. 
 
 Peabody, Nathaniel 
 
 Mr. ELY, of Westfield. I wish to inquire, 
 Mr. President, if a vote on the subject-matter of 
 
 Giles, Joel 
 Gooding, Leonard 
 Graves, John W. 
 
 Penniman, John 
 Perkins, Noah C. 
 Phelps, Charles 
 
 the resolution now under consideration has not 
 
 Green, Jabez 
 
 Phinney, Silvanus B. 
 
 been taken by yeas and nays already ? 
 
 Griswold, Josiah W. 
 
 Pierce, Henry 
 
 The PRESIDENT. A motion was made to 
 
 Griswold, Whiting 
 
 Pool, James M. 
 
 strike out the fourth resolution, and to substitute 
 the resolution now pending, which was carried 
 
 Hadley, Samuel P. 
 Hallett, B. F. 
 Hapgood, Lyman W. 
 
 Powers, Peter 
 Putnam, John A. 
 Rawson, Silas 
 
 by yeas and nays. That is a different question 
 
 Hapgood, Seth 
 
 Richardson, Daniel 
 
 from the present ; that was a motion to amend ; 
 
 Haskins, William 
 
 Richardson, Nathan 
 
 this is a motion to order the resolution to its final 
 
 Hathaway, Elnathan P. 
 
 Richardson, Samuel H. 
 
 nn,ssa e 
 
 Hay den, Isaac 
 
 Ring, Elkanah, Jr. 
 
 J/OBBOgd 
 
 The question being taken by yeas and nays, 
 
 Hazewell, C. C. 
 Heath, Ezra, 2d 
 
 Rockwood, Joseph M. 
 Rogers, John 
 
 the result was yeas, 204 ; nays, 143 as follows : 
 
 Hewes, James 
 
 Ross, David S. 
 
 
 Hewes, William H. 
 
 Sanderson, Amasa 
 
 TEAS. 
 
 Heywood, Levi 
 
 Sanderson, Chester 
 
 Allen, Charles Buck, Asahel 
 
 Hobart, Henry 
 
 Sheldon, Luther 
 
 Allen, James B. Cady, Henry 
 
 Hobbs, Edwin 
 
 Smith, Matthew 
 
 Allen, Parsons Case, Isaac 
 
 Hood, George 
 
 Sprague, Melzar 
 
 Alley, John B. Chapin, Daniel E. 
 
 Hooper, Foster 
 
 Spooner, Samuel W. 
 
 Allis, Josiah Childs, Josiah 
 
 Howard, Martin 
 
 Stetson, Caleb 
 
 Andrews, Robert Churchill, J. McKean 
 
 Howland, Abraham H. 
 
 Stevens, Granville 
 
 Austin, George Clark, Henry 
 
 Hunt, Charles E. 
 
 Stevens, Joseph L., Jr. 
 
 Baker, Hillel Clarke, Alpheus B. 
 
 Hurlbut, Moses C. 
 
 Stevens, William 
 
 Ball, George S. Clarke, Stillman 
 
 Hyde, Benjamin D. 
 
 Stiles, Gideon 
 
 Bancroft, Alpheus Cleverly, William 
 
 Ide, Abijah M., Jr. 
 
 Sumner, Charles 
 
 Barrett, Marcus Cole, Sumner 
 
 Jacobs, John 
 
 Sunnier, Increase 
 
 Bates, Eliakim A. Cooledge, Henry F. 
 
 Keyes, Edward L. 
 
 Taft, Arnold 
 
 Bates, Moses, Jr. Crane, George B. 
 
 Kimball, Joseph 
 
 Thayer, Joseph 
 
 Beach, Erasmus D. Cressy, Oliver S. 
 
 Kingman, Joseph 
 
 Thomas, John W. 
 
 Beal, John Crittenden, Simeon 
 
 Knight, Hiram 
 
 Thompson, Charles 
 
 Bennett, William, Jr. Cross, Joseph W. 
 
 Knight, Jefferson 
 
 Tilton, Horatio W. 
 
 Bennett, Zephaniah Cushman, Henry W. 
 
 Kiiowlton, Charles L. 
 
 Turner, David P. 
 
 Bigelow, Edward B. Cushman, Thomas 
 
 Knowlton, J. S. C. 
 
 Underwood, Orison 
 
 Bird, Francis W. Cutler, Simeon N. 
 
 Knowlton, William H. 
 
 Viles, Joel 
 
 Bishop, Henry W. Davis, Charles G. 
 
 Knox, Albert 
 
 Vinton, George A. 
 
 Booth, William S. Davis, Ebenezer 
 
 Ladd, Gardner P. 
 
 Wallace, Frederick, T. 
 
 Bout well, Sewell Davis, Isaac 
 
 Lawrence, Luther 
 
 Wallis, Freeland 
 
 Boutwell, George S. Davis, Robert T. 
 
 Lawton, Job G., Jr. 
 
 Walker, Amasa 
 
 Bronson, Asa Day, Gilman 
 
 Leland, Alden 
 
 Ward, Andrew H. 
 
 Brown, Adolphus F. Dean, Silas 
 
 Lincoln, Abishai 
 
 Warner, Marshal 
 
 Brown, Hammond Deming, Elijah S. 
 
 Littlefield, Tristram 
 
 Warner, Samuel, Jr. 
 
 Brownell, Frederick Denton, Augustus 
 
 Loomis, E. Justin 
 
 Waters, Asa H. 
 
 Brownell, Joseph Dunham, Bradish 
 
 Marble, William P. 
 
 Weston, Gershom B. 
 
 Bryant, Patrick Eames, Philip Marvin, Abijah P. 
 
 Whitney, Daniel S. 
 
63d day.] 
 
 THE JUDICIARY. 239 
 
 Thursday,] 
 
 NAYS ABSENTEES FROTHINGHAM. [ Ju ly 21st 
 
 Wilbur, Daniel 
 
 Winn, Jonathan B. Stevens, Charles G. Upton, George B. 
 
 Wilbur, Joseph 
 
 Winslow, Levi M. 
 
 Stevenson, J. Thomas Walcott, Samuel B. 
 
 Williams, J. B. 
 
 Wood, Charles C. 
 
 Storrow, Charles S. Wales, Bradford L. 
 
 Wilson, Henry 
 
 Wood, Nathaniel 
 
 Taber, Isaac C. Walker, Samuel 
 
 Wilson, Willard 
 
 Wood, Otis 
 
 Talbot, Thomas Weeks, Cyrus 
 
 
 
 Taylor, Ralph Wheeler, William F. 
 
 V 
 
 
 Tileston, Edmund P. White, Benjamin 
 
 
 L !& 
 
 Train, C. R. White, George 
 
 Adams, Benjamin P. 
 
 Heard, Charles 
 
 Turner, David Wilder, Joel 
 
 Adams, Shubael P. 
 
 Hersey, Henry 
 
 Tyler, John S. Wilson, Milo 
 
 Allen, Joel C. 
 
 Hillard, George S. 
 
 Tyler, William Wright, Ezekiel 
 
 Aspinwall, William 
 Atwood, David C. 
 
 Holder, Nathaniel 
 Houghton, Samuel 
 
 Upham, Charles W. 
 
 Ayres, Samuel 
 
 Hoyt, Henry K. 
 
 
 Barrows, Joseph 
 
 Hubbard, William J. 
 
 ABSENT. 
 
 Bartlett, Sidney 
 
 Hunt, William 
 
 Abbott, Alfred A. Hinsdale, William 
 
 Beebe, James M. 
 
 Huntington, Asahel 
 
 Abbott, Josiah G. Hobart, Aaron 
 
 Blagden, George W. 
 
 Hurlburt, Samuel A. 
 
 Aldrich, P. Emory Hopkinson, Thomas 
 
 Bliss, Gad O. 
 
 Jackson, Samuel 
 
 Alvord, D. W. Huntington, Charles P. 
 
 Braman, Milton P. 
 
 James, William 
 
 Appleton, William Huntington, George H. 
 
 Breed, Hiram N. 
 
 Jenkins, John 
 
 Ballard, Alvah Johnson, John 
 
 Brewster, Osymn 
 
 Jenks, Samuel H. 
 
 Banks, Nathaniel P., Jr. Kellogg, Martin R. 
 
 Brinley, Francis 
 
 Kellogg, Giles C. 
 
 Bartlett, Russel Ladd, John S. 
 
 Briggs, George N. 
 
 Kendall, Isaac 
 
 Bell, Luther V. Langdon, Wilber C. 
 
 Brown, Alpheus R. 
 
 Kinsman, Henry W. 
 
 Bigelow, Jacob Little, Otis 
 
 Brown, Hiram C. 
 
 Knight, Joseph 
 
 Bliss, William C. Marcy, Laban 
 
 Bullock, Rufus 
 
 Kuhn, George H. 
 
 Bradbury, Ebenezer Marvin, Theophilus R. 
 
 Bumpus, Cephas C. 
 
 Lincoln, Frederic W., Jr. 
 
 Bradford, William, J.A. Norton, Alfred 
 
 Burlingame, Anson 
 
 Livermore, Isaac 
 
 Brown, Artemas Paine, Henry 
 
 Carter, Timothy W. 
 
 Lord, Otis P. 
 
 Bullen, Amos H. Payson, Thomas E. 
 
 Caruthers, William 
 
 Lothrop, Samuel K. 
 
 Butler, Benjamin F. Perkins, Daniel A. 
 
 Chandler, Amariah 
 
 Loud, Samuel P. 
 
 Clark, Ransom Perkins, Jonathan C. 
 
 Chapin, Chester W. 
 
 Lowell, John A. 
 
 Clark, Salah Prince, F. O. 
 
 Chapin, Henry 
 
 Miller, Seth, Jr. 
 
 Cole, Lansing J. Rice, David 
 
 Choate, Rufus 
 
 Mixter, Samuel 
 
 Copeland, Benjamin F. Sampson, George R. 
 
 Coggin, Jacob 
 
 Morey, George 
 
 Curtis, Wilber Sherman, Charles 
 
 Cogswell, Nathaniel 
 
 Morss, Joseph B. 
 
 DeWitt, Alexander Souther, John 
 
 Conkev, Ithamar 
 
 Morton, Marcus 
 
 Doane, James C. Stacy, Eben H. 
 
 Cook, Charles E. 
 
 Noyes, Daniel 
 
 Duncan, Samuel Strong, Alfred L. 
 
 Crockett, George W. 
 
 Nute, Andrew T. 
 
 Durgin, John M. Stutson, William 
 
 Crosby, Leander 
 
 Oliver, Henry K. 
 
 Easton, James, 2d Swain, Alanson 
 
 Crowell, Seth 
 
 Orcutt, Nathan 
 
 Eaton, Lilley Thayer, Willard, 2d 
 
 Crowninshield, F. B. 
 
 Paige, James W. 
 
 French, Rodney Tilton, Abraham 
 
 Cummings, Joseph 
 Dana, Richard H., Jr. 
 
 Park, John G. 
 Parker, Adolphus G. 
 
 Gardner, Johnson Tower, Ephraim 
 Gooch, Daniel W. Wetmore, Thomas 
 
 Davis, John 
 
 Parker, Joel 
 
 Gray, John C. Whitney, James S. 
 
 Davis, Solomon 
 
 Parker, Samuel D. 
 
 Greene, William B. Wilkins, John H. 
 
 Dawes, Henry L. 
 
 Parsons, Thomas A. 
 
 Hall, Charles B. Wilkinson, Ezra 
 
 Dehon, William 
 
 Peabody, George 
 
 Harmon, Phineas Williams, Henry 
 
 Denison, Hiram S. 
 
 Pease, Jeremiah, Jr. 
 
 Haskell, George Wood, William H. 
 
 Dorman, Moses 
 
 Perkins, Jesse 
 
 Henry, Samuel Woods, Josiah B. 
 
 Ely, Homer 
 
 Plunkett, William C. 
 
 
 Eustis, William T. 
 
 Pomroy, Jeremiah 
 
 Absent and not voting, 72. 
 
 Farwell, A. G. 
 
 Preston, Jonathan 
 
 
 Fowler, Samuel P. 
 
 Putnam, George 
 
 So the resolution was passed. 
 
 French, Charles H. 
 
 Rantoul, Robert 
 
 Mr. FROTHINGHAM, of Charlestown. I 
 
 Gardner, Henry J. 
 
 Read, James 
 
 move to lay the Orders of the Day upon the 
 
 Gates, Eibridge 
 Gilbert, Wanton C. 
 Gould, Robert 
 
 Reed, Sampson 
 Richards, Luther 
 Rockwell, Julius 
 
 table for the purpose of taking up Convention 
 Document No. 54, being the Report of the Com 
 
 Goulding, Daltoii 
 
 Royce, James C. 
 
 mittee on Elections, in reference to the memorial 
 
 Goulding, Jason 
 
 Sargent, John 
 
 of John Sanborn, from Charlestown, claiming a 
 
 Greenleaf, Simon 
 
 Schouler, William 
 
 seat in the Convention. 
 
 Hale, Artemas 
 
 Sherril, John 
 
 The motion was rejected, on a division ayes, 
 
 Hale, Nathan 
 
 Sikes, Chester 
 
 
 Hammond, A. B. 
 Hawkes, Stephen E. 
 
 Simmons, Perez 
 Simonds, John W. 
 
 72 ; noes, 112. 
 So the Orders of the Day were not laid upon 
 
 Hayward, George 
 
 Sleeper, John S. 
 
 the table. 
 
240 
 
 NEW TOWNS, &c. 
 
 [63d day. 
 
 Thursday,] 
 
 MORTON FROTHIXGHAM HOOPER BATES KEYES. 
 
 [July 21st. 
 
 Mr. MORTON, of Taunton. There is a sub 
 ject of considerable interest, which I had the 
 honor to bring before the Convention, some time 
 ago ; and with the understanding that it should 
 be taken up at an early day, I withdrew it as an 
 amendment to a proposition then pending, and 
 presented it as an independent proposition ; and 
 it was referred to the Committee of the Whole. 
 I therefore move that the Convention resolve 
 itself into Committee of the Whole, on Docu 
 ment 59. I wished to make this explanation, 
 and then will move to lay the Orders of the Day 
 upon the table, that the Convention may go into 
 Committee of the Whole, and consider the alter 
 native proposition in relation to the amendments 
 of the Constitution. I move that the Orders of 
 the Day be laid upon the table. 
 
 Mr. HOOPER, of Fall River. I hope that 
 that motion will not prevail. It is only a few 
 moments since the Convention refused to adopt 
 the very same motion. 
 
 Mr. BIRD, of Walpole. I want to know if it 
 is in order to make the same motion twice in 
 succession, without the intervention of other 
 business ? 
 
 The PRESIDENT. The Chair is of opinion 
 that the motion of the gentleman from Taunton 
 is in order. 
 
 Mr. FROTHINGHAM, of Charlestown. I 
 ask the leave of the Convention, at this time, to 
 make a statement. I will not occupy more than 
 one or two minutes. 
 
 Leave was granted. 
 
 Mr. FROTHINGHAM. I moved, a few 
 moments ago, to lay the Orders of the Day 
 upon the table for the purpose of going into Com 
 mittee of the Whole on the Report on the sub 
 ject of Banks and Banking. I did so because I 
 had refrained for some time past from making 
 that motion, and with a view to accommodate 
 gentlemen who felt a strong interest in relation 
 to other questions, which have been before the 
 Convention. On the suggestion of some of the 
 members of the Convention, I made the motion 
 to lay the Orders of the Day upon the table, 
 for the express purpose of taking up that ques 
 tion. 
 
 The PRESIDENT. The Chair, upon reflec 
 tion, is of opinion that the motion made by the 
 gentleman from Taunton, (Mr. Morton,) is not 
 in order, no business having been transacted since 
 the same question was previously decided. The 
 next matter in the Orders of the Day, is the mo 
 tion of the gentleman from Fall River, (Mr. 
 Hooper,) to reconsider the vote by which the 
 resolve on the incorporation of new towns was 
 indefinitely postponed. 
 
 Incorporation of New Towns. 
 
 Mr. HOOPER. I moved a reconsideration 
 of this resolution, with the view of offering an 
 amendment. It will be recollected, that one of 
 the resolutions fixing the basis of representation, 
 pi ovides that 110 town shall be incorporated, with 
 the right to send a representative to the legisla 
 ture, having less than fifteen hundred inhabitants. 
 I suppose the meaning of that is, that no to\vn 
 hereafter created shall be represented in the legis 
 lature unless it have fifteen hundred inhabitants. 
 But this resolution guards the matter only on 
 one side. It does not prevent the creation of new 
 towns having fifteen hundred inhabitants, and 
 leaving the old town, perhaps, with less than one 
 thousand inhabitants. For the purpose of pre 
 venting this, I moved a reconsideration, so as to 
 guard the matter in such a way that no town 
 should be left with less than fifteen hundred in 
 habitants, by the creation of any new town. 
 That is my object ; and if the Convention decide 
 to reconsider, I will offer such an amendment. 
 
 Mr. BATES, of Plymouth. I would simply say 
 to the gentleman from Fall River, that when this 
 whole subject was under discussion, an amend 
 ment precisely similar to this was moved and re 
 jected, and that, consequently, such an amend 
 ment cannot be in order at this time. 
 
 Mr. HOOPER. I think the gentleman is 
 mistaken. The amendment which was rejected 
 was very different from this. That amendment 
 was, that no town should be incorporated with less 
 than fifteen hundred inhabitants, thereby imply 
 ing that new towns having that number of inhab 
 itants might be incorporated, and be entitled to 
 representation. The object I have in view, is 
 quite different. It is to prevent the formation of 
 new towns, leaving the old ones with a less num 
 ber of inhabitants than fifteen hundred. I think 
 if gentlemen will reflect for a moment, they 
 cannot object to having the matter guarded in 
 this way. 
 
 Mr. KEYES, for Abington. It seems to me, 
 that the gentleman from Fall River, is a little 
 mistaken ; that these towns do not stand on the 
 same basis ; and whereas, it might be unjust in 
 one sense, it would not be in the other. I take 
 it, that the Convention decided for good reasons, 
 that no new town should be created for the pur 
 poses of representation with less than fifteen 
 hundred inhabitants ; and the ground was this : 
 before these new towns petition for a town organ 
 ization they understand precisely what they have 
 to meet with. They may have a representation, 
 or they may not, as the legislature may determine. 
 If they choose to be incorporated for town pur 
 poses without the representation privilege, no 
 
63d day.] 
 
 NEW TOWNS. 
 
 241 
 
 Thursday,] 
 
 SCHOULER HALLETT HOOPER. 
 
 [July 21st. 
 
 injustice will be done. On the other hand, if 
 they permit a new town to go off from the old 
 one, and thereby take away the right of the old 
 town to send a representative, a double injustice 
 will be done. Suppose that a new village starts 
 up in a town, with its railroad, and manufactur 
 ing, and other establishments, gathering around 
 them a large population, and they say to them 
 selves, - let us go off from the old town and leave 
 it in its loneliness, and take with us the right of 
 representation," this would not be right. I take 
 it, therefore, that in such case, the old town ought 
 not to suffer in consequence of the new town 
 going off, because, if they do go off, they go with 
 their eyes open. 
 
 Mr. SCHOULER. I hope the motion to re 
 consider will not prevail. It seems to me, that 
 we ought to leave something for the legislature to 
 do hereafter. The usual practice has been, that 
 where a town was set off it should vote for rep 
 resentatives with the town from which it came 
 out until the next decennial census. New towns 
 can be incorporated for all purposes which ap 
 pertain to town business, and nobody will be 
 affected, but themselves ; but they cannot vote 
 for representatives otherwise than in conjunction 
 with the town from which they were set off. 
 
 Mr. HALLETT. It seems to me, that this 
 motion ought to be reconsidered, and for a very 
 plain reason. You have got to provide against 
 the indefinite increase of representation by the 
 multiplication of new towns, and if that is not 
 done, your system of town representation is not 
 safe. You cannot well leave the matter unguarded 
 in this way, so that a town having twenty-five 
 hundred inhabitants, may set off fifteen hundred 
 of them, to be incorporated and entitled to a new 
 representation, and still retain its own represen 
 tation with a population of one thousand. The 
 legislature may guard against it, but if they do 
 not and we leave the matter in this shape, then, as 
 I showed the other day, a town having four thou 
 sand inhabitants, and sending two representa 
 tives, may be divided into three towns, sending 
 three representatives ; and there is no knowing 
 where the effect of such a thing is to stop, if the 
 legislature connive at it. It seems to me, that we 
 should not leave a loop-hole of this sort in the 
 principle of representation. If this thing is to 
 remain so, you had better declare at once, that 
 your basis of representation shall be fifteen hun 
 dred for a representative in every town. If you 
 say, in this implied manner, that there shall be as 
 many towns sending representatives as your old 
 towns will make, by dividing their population by 
 fifteen hundred, you may have the House of Rep 
 resentatives enlarged to an impracticable extent. 
 
 What would be the result ? What would be the 
 danger ? Why, that in case of any extraordinary 
 political pressure, your legislature would create so 
 many new towns in order to accommodate the 
 condition of political parties. E very-body knows 
 this. Every-body can see it at a glance ; and the 
 question would at once be : what will be the polit 
 ical character of the representative who will come 
 from such and such a new town, if it is created ? 
 
 Now, if this motion is reconsidered, you can 
 then adopt a principle such as is suggested by the 
 gentleman from Fall River ; or you can say upon 
 a general principle that no incorporation of any 
 new town shall thereby increase the representa 
 tion within the limits of the old and new town 
 together ; and then you leave the matter so that 
 if a town chooses to divide, it may do so ; but it 
 shall not divide at the expense of the whole rep 
 resentation of the State. I think that that is a 
 sound reason ; a good ground why this motion to 
 reconsider should prevail ; so that this salutary 
 precaution may be adopted. 
 
 The question being taken on the motion to 
 reconsider, it was decided, on a division, in the 
 affirmative ayes, 130; noes, 114. 
 
 The PRESIDENT. The question now is on 
 ordering to a second reading the following re 
 solve : 
 
 Resolved, That the Constitution be so amended 
 that hereafter no town shall be incorporated with 
 less than fifteen hundred inhabitants. 
 
 A MEMBER. Is not the first question on the 
 motion to postpone the farther consideration of 
 the resolution indefinitely ? 
 
 The PRESIDENT. That is the first question. 
 
 Mr. HOOPER, of Fall River. I wish to 
 amend the resolution as follows : strike out all 
 after the word " town," in the second line, and 
 insert the following : 
 
 The number of whose inhabitants shall be 
 reduced below fifteen hundred by the incorpora 
 tion of another town from a part of its territory, 
 shall retain the right of sending a representative 
 annually to the general court. 
 
 The resolution, if thus amended, will then read 
 as follows : 
 
 Resolved, That the Constitution be so amended 
 that hereafter no town, the number of whose in 
 habitants shall be reduced below fifteen hundred 
 by the incorporation of another town from a part 
 of its territory, shall retain the right of sending a 
 representative annually to the general court. 
 
 Mr. HALLETT. For the purpose of enabling 
 the Convention to judge of the two modes of 
 
242 
 
 NEW TOWNS. 
 
 [63d day. 
 
 Thursday,] 
 
 BIRD HOOPER HALLETT SPOONER. 
 
 [July 2 1st. 
 
 reaching this object, I would amend the resolu 
 tion by adding the following words : 
 
 But the incorporation of any town shall not 
 thereby increase the whole number of representa 
 tives in the Commonwealth. 
 
 The resolution, if thus amended, would then 
 read : 
 
 Resolved, That the Constitution be so amended 
 that, hereafter, no town shall be incorporated 
 with less than fifteen hundred inhabitants : pro 
 vided, that the incorporation of any town shall 
 not thereby increase the whole number of repre 
 sentatives in the Commonwealth. 
 
 Mr. BIRD, of Walpole. I rise to a question 
 of order. The point of order that I make is, that 
 the same amendment was offered by the gentle 
 man from Fall River the other day, in the same 
 stage of the resolution, and was rejected. The 
 phraseology of the amendment may be somewhat 
 different, but the object to be attained is substan 
 tially the same. 
 
 Mr. HOOPER. I deny that it is the same 
 amendment. If the gentleman will look at it, he 
 will see that it is different. He will see that it 
 restricts the old town, thus left, from sending a 
 representative annually to the general court. 
 
 Mr. ASPINWALL, of Brookline. I rise to a 
 question of order. It is, that the subject of the 
 amendment is entirely distinct and different from 
 the subject of the resolution. 
 
 Mr. HOOPER. The gentleman from Brook- 
 line is surely laboring under some great mistake. 
 If he will examine the amendment in connection 
 with the resolution, he cannot fail to perceive its 
 pertinency. 
 
 The PRESIDENT. Two questions of order 
 have been raised, one by the gentleman from 
 Walpole, that the subject of the amendment has 
 been already acted upon, and rejected, in the 
 same stage of the resolution. This amendment, 
 the Chair is inclined to think, was acted upon in 
 Committee of the Whole, and the point of order 
 is therefore overruled. 
 
 The gentleman from Brookline raises another 
 point of order, which is, that the amendment has 
 no connection with the resolution noAv pending. 
 The Chair is of opinion that the amendment is 
 not in order, not being germain to the resolution. 
 
 Mr. HOOPER. I am sorry that I shall be 
 under the necessity of taking an appeal from the 
 decision of the Chair. Sir, this amendment simply 
 qualifies the subject-matter of the resolution in 
 relation to the incorporation of towns. It is 
 merely fixing a condition in relation to these 
 incorporations. It is certainly pertinent to the 
 
 subject of the resolution, if any one thing can be 
 pertinent to another. It certainly seems to me 
 that it must be in order. 
 
 The PRESIDENT, after reading the resolution 
 and amendment again, decided that the amend 
 ment was not germain to the resolution. 
 
 Mr. CROSBY, of Orleans. I would inquire of 
 the Chair whether the immediate question before 
 the Convention is not on the motion for indefinite 
 postponement ? 
 
 The PRESIDENT. That is the first question. 
 
 Mr. SPOONER, of Warwick. I move the 
 previous question. 
 
 Mr. HALLETT. I understood the position of 
 the question before the Convention was, that the 
 gentleman from Fall River moved an amendment 
 to the present resolution, with the view of 
 
 Mr. LORD, of Salem. I rise to a question of 
 order. [Laughter.] 
 
 The PRESIDENT. The gentleman from Sa 
 lem will state his point of order. 
 
 Mr. LORD. I understood the gentleman from 
 Fall River to appeal from the decision of the 
 Chair. I understand the rule of the House to 
 
 Mr. HALLETT. I call the gentleman from 
 Salem to order. [Much laughter.] The question 
 is that he is about to anticipate the very question 
 I was about to state to the Chair. [Roars of 
 laughter.] The Chair ruled that the amendment 
 of the gentleman from Fall River, to which I 
 moved an amendment, was out of order. The 
 gentleman from Fall River took an appeal from 
 the decision of the Chair ; and it was not until 
 after the appeal was made, that the motion for 
 indefinite postponement was offered. 
 
 The PRESIDENT. The question before the 
 Convention is on the motion for the indefinite 
 postponement of the resolution. The gentleman 
 from Fall River moves an amendment to the reso 
 lution, which the Chair decides to be out of order. 
 The Chair did not understand the gentleman from 
 Fall River as having appealed from that decision. 
 The Chair understood the gentleman to say that he 
 would be under the necessity of doing so ; but not 
 that he actually did appeal. If he appeals, that 
 will be the first question to be taken. 
 
 Mr. HOOPER. I did take an appeal, and I 
 supposed that the Chair so understood me. 
 
 Now. Mr. President 
 
 Mr. SPOONER. I rise to a question of order, 
 [laughter,] which is, whether a motion to post 
 pone a resolution indefinitely, permits an amend 
 ment to the resolution to be offered pending the 
 motion to postpone ? 
 
 The PRESIDENT. It is competent for any 
 gentleman to move an amendment to an amend- 
 
63d day.] 
 
 NEW TOWNS. 
 
 243 
 
 Thursday,] 
 
 HOOD HOOPER LORD KEYES HALLETT STETSON. 
 
 [July 21st. 
 
 ment pending the question on the indefinite post 
 ponement. The gentlemen from Fall River will 
 proceed. 
 
 Mr. HOOD, of Lynn. I rise to a point of 
 order. [Great laughter.] The gentleman from 
 Fall River took an appeal from the decision of 
 the Chair ; then the gentleman from Warwick 
 moved the previous question. Is the appeal in 
 order under the motion for the previous question ? 
 [Continued laughter.] 
 
 The PRESIDENT. The first question will be 
 on the appeal. 
 
 Mr. HOOPER. I certainly, Mr. President, 
 am sorry to be under the necessity of taking an 
 appeal ; but it seems to be so clear a case that 
 there can be no doubt about it. The resolve is in 
 relation to the incorporation of new towns. That 
 is the object. 
 
 Mr. LORD, of Salem. I rise to a question of 
 order. I believe, Sir, that there is but one gen 
 tleman in the House who does not believe that 
 the ruling of the President is right, and that gen 
 tleman is the gentleman from Fall River himself. 
 I submit, that under the second rule, the gentle 
 man must find somebody to second his appeal. 
 The second rule requires that the President shall 
 decide all questions of order subject to an appeal, 
 on a motion regularly seconded. Somebody must 
 second the appeal before it is before the Conven 
 tion. 
 
 Mr. CHURCHILL, of Milton. I do not know 
 anything about the question of order, and whether 
 it is well taken or not ; but, out of courtesy to the 
 gentleman from Fall River, I second his motion. 
 
 Mr. HOOPER. I was not aware that I was 
 out of order, and I am told by gentlemen around 
 me, who understand these matters better than I 
 do, that I was clearly right. The resolution is in 
 relation to the incorporation of new towns, and 
 the amendment simply fixes a condition connected 
 with such incorporations. It provides that by 
 such incorporation no town shall retain its right 
 of sending representatives annually, if it is re 
 duced below a certain number. It leaves the 
 subject of incorporation open hereafter, without 
 restricting it, but only attaches the condition that 
 if the town assent, as it may readily do, to part 
 with a major part of its inhabitants, it shall not 
 thereafter retain its right of sending annual rep 
 resentatives. The old town may consent to such 
 division for the purpose of increasing the number 
 of representatives, and this is simply a condition 
 to prevent such incorporations for the purpose of 
 multiplying representation. It strikes me that it 
 simply fixes a condition to the main proposition, 
 and therefore must be in order, 
 
 Mr. KEYES, for Abington. It seems to me 
 
 that the original resolution is better than the 
 amendments, and none at all would be better than 
 both ; therefore, I move that the subject lie upon 
 the table, and remain there forever. 
 
 The PRESIDENT. The question before the 
 Convention is vpon the appeal of the gentleman 
 from Fall River from the decision of the Chair. 
 
 Mr. KEYES. My motion was to lay the whole 
 subject, appeal and all, upon the table. 
 
 The PRESIDENT. The Chair is of opinion 
 that such a motion is not in order. 
 
 Mr. HOOPER. I withdraw my appeal, having 
 stated my views. 
 
 Mr. KEYES. I now move to lay the whole 
 subject upon the table. 
 
 The question was taken, and there were ayes, 
 99 ; noes, 120. 
 
 So the Convention refused to lay the subject 
 upon the table. 
 
 Mr. HALLETT, for Wilbraham. I now move 
 to amend the proposition as it stands, by adding 
 the words which I submitted at a former stage, 
 to wit : " but the incorporation of any town shall 
 not thereby increase the whole number of repre 
 sentatives in the Commonwealth." 
 
 Mr. JAMES, of South Scituate. Suppose a 
 town of four thousand inhabitants, wants to be 
 divided, and is divided, which of them will be 
 entitled to the representative ? 
 
 Mr. HALLETT. If I may be allowed to 
 answer that question, the legislature will take 
 care of that matter, and determine which shall 
 have the representation. The only effect of the 
 amendment is to prevent the whole number from 
 being increased. 
 
 Mr. STETSON, of Braintree. Having intro 
 duced this resolution at first, and having been 
 asked the other day, when the question came up 
 for discussion, the reasons for it, I wish briefly to 
 state the reasons which induced me to offer the 
 proposition for the consideration of the Conven 
 tion. The resolve itself, is one which affects the 
 prospective size of the representative body. The 
 question then for the consideration of the Con 
 vention is, whether it is expedient to check the 
 growing tendency which exists in relation to the 
 formation of new towns. That is a question up 
 on which every member of this Convention is 
 able to judge for himself. My own opinion is, 
 that some check is necessary, and that some con 
 stitutional provision should be provided to check 
 the growing tendency to cut up towns into two 
 or more small corporations. My opinion is, that 
 some check should be made, in order to save 
 harmless those little republics, of which so much 
 has been said, and in reference to which, I think 
 those who wish a check upon the size of the 
 
244 
 
 NEW TOWNS. 
 
 [63d day. 
 
 Thursday,] 
 
 HOOD STETSON THOMPSON SCHOULER. 
 
 [July 21st. 
 
 representative body, should have a little care for. 
 I believe, Sir, that the largest number of the new 
 towns, which have been incorporated for the last 
 few years, have contained less than one thousand 
 inhabitants ; and Sir, they come in here, and claim 
 a basis of representation upon equal grounds 
 with towns created two hundred years ago. 
 Now, if this work is to continue to go on, why 
 Sir, what will be the result ? 
 
 Mr. HOOD, of Lynn. I rise to a point of 
 order. It is, that the amendment of the gentle 
 man for Wilbraham is not in order under the 
 thirty-fourth rule, that the amendment relates to 
 a different matter from the subject of the resolve. 
 
 The PRESIDENT. The Chair is of opinion 
 that the amendment is not strictly in order. 
 
 Mr. DAY, of Templeton. I move the previ 
 ous question. 
 
 Mr. STETSON. I would like to raise a ques 
 tion of order myself. Having proceeded with 
 the consent of the Convention, to argue the 
 proposition before it, and having been called to 
 order by my friend from Lynn, (Mr. Hood,) 
 whether, by yielding the floor for a decision of 
 the point of order, I thereby lose it, and a gentle 
 man can take it away from me and move the pre 
 vious question. 
 
 The PRESIDENT. The Chair understood 
 the gentleman from Braintree as yielding the 
 floor, the decision of the question of order hav 
 ing cut off the amendment. If, however, the 
 gentleman claims the floor, the Chair will con 
 sider the previous question as not having been 
 made, and the gentleman may proceed upon the 
 question before the Convention, which is upon 
 the indefinite postponement of the resolution. 
 
 Mr. STETSON. I trust the Convention will 
 not postpone it. I say, Mr. President, it fre 
 quently happens, that in consequence of the 
 location of railroads, or the establishment of 
 manufactories in a portion of a town ; in conse 
 quence of centralization, of which so much has 
 been said, that some portion of the towns 
 
 Mr. THOMPSON, (interrupting). I rise to a 
 point of order. I wish to inquire what the sub 
 ject-matter under consideration is ? If I under 
 stand it, it is the previous question. 
 
 The PRESIDENT. The question under dis 
 cussion is the motion to indefinitely postpone the 
 resolution. 
 
 Mr. STETSON. I was saying that in con 
 sequence of centralization, in consequence of the 
 location of railroads, and the establishment of 
 manufactories, a new part of a town may be 
 come predominant, and outgrow the old town, 
 and they can come before the legislature and 
 ask for a separate town incorporation, and if 
 
 they happen to be upon the right side of politics 
 they get what they ask for. The proposition 
 which this Convention has determined to submit 
 to the people, holds out strong inducements to the 
 division of towns. Take the class of towns 
 varying from one thousand to four thousand in 
 habitants being the largest fraction under this 
 rule which the Convention has passed and they 
 are the greatest sufferers. Now this involves the 
 rights of the people, and the question is : does 
 any exigency require its submission to the people, 
 in order to save ourselves from the evils which 
 go to undermine town representation ? I am sat 
 isfied if this Convention vote to lay this upon the 
 table, or dispose of it as they have heretofore 
 done ; but I want them to understand the princi 
 ple involved, and the fact that the rights of the 
 middle-sized towns of about four thousand inhab 
 itants will be the greatest sufferers under it. 
 Sir, I trust that this Convention will adopt some 
 principle whereby they may save themselves from 
 the undermining and underworkings of the sys 
 tem which involves in itself the rights of the 
 people, under the representative system, which is 
 to exist hereafter, if the constitutional provision 
 which is proposed by the Convention shall be 
 adopted by the people. The consequence, under 
 this system, will be that the rural part of a town 
 will be shorn of its strength, and left to shift for 
 itself, and probably will be barely able to exist as 
 a town corporation. The course adopted in 
 regard to the basis of town representation, makes 
 the question one of great importance. But if 
 this Convention are willing to let the matter 
 rest where it is, I am content. 
 
 Mr. SCHOULER, of Boston. I hope the 
 motion for indefinite postponement will prevail. 
 My friend near me says I am on the wrong side 
 for once, but I think I am right. I think this is 
 a matter which can be better left to the legisla 
 ture than to this Convention. Now, what is this 
 great evil which the gentleman speaks about? 
 During the last thirty-three years, only thirty-two 
 towns have been incorporated ; less than one every 
 year, and I appeal to gentlemen representing those 
 towns, whether they have experienced any evils 
 from that. 
 
 Here are the towns which have been incorpo 
 rated in the several counties within thirty- three 
 years. 
 
 Suffolk. North Chelsea and Winthrop. 
 
 Essex. Georgetown, Groveland, Lawrence, 
 Rockport, Nahant and Swampscot. 
 
 Middlesex. Ashland, Lowell, Melrose, North 
 Reading, Somerville and Winchester. 
 
 Worcester. Blackstone, Clinton, Webster and 
 West Brookfield. 
 
63d day.] 
 
 NEW TOWNS. 
 
 245 
 
 Thursday,; 
 
 HALLETT SCHOULER. 
 
 [July 21st. 
 
 Hampshire. Prescott. 
 
 Hampden. Chicopee and Holyoke. 
 
 Franklin, Erving and Monroe. 
 
 Berkshire, Monterey. 
 
 Norfolk. West Roxbury. 
 
 Plymouth. East Bridgewater, North Bridge- 
 water, South Scituatc, West Bridgewater, Lake- 
 ville and Marion. 
 
 Bristol. Pawtucket. 
 
 Is not that a very moderate number ? The 
 exigencies of the case sometimes require that 
 new towns should be made. We had a case 
 before the legislature last year, for the incorpo 
 ration, in Hampshire County, of a new town at 
 Cheshire. Cheshire village was composed of 
 parts of four towns, which all happened to center 
 there. A large village had been built upon this 
 junction of those towns, and a part of the vil 
 lage was in each of them. They could, in con 
 sequence, have no efficient police, and a person 
 had only to cross over from one town line to 
 another, to be out of the reach of the police. 
 That case went through the House without any 
 difficulty, although it is generally with the great 
 est difficulty that you can get an act for the incor 
 poration of a new town, through the legislature. 
 The case must be a strong one, before the legis 
 lature will do it. I think the whole matter 
 should be left to the legislature to decide, when 
 circumstances require the erection of new towns, 
 as they have heretofore done. 
 
 Mr. HALLETT. I think this subject should 
 not be indefinitely postponed, because it is, in my 
 judgment, a very important question. It is one 
 upon which may depend the continuance of town 
 representation after the year 1860 ; because, if the 
 legislature goes on to incorporate towns as fast 
 as they will be applied for, your representative 
 system cannot exist for ten years, without over 
 whelming the House with the number of mem 
 bers coming from these new towns. 
 
 Now the provision which has been adopted 
 with regard to representatives a provision which 
 gives no new town the right of representation, 
 unless it has at least 1,500 inhabitants makes no 
 express restriction to prevent both the old and new 
 town from being represented, and the number of 
 representatives from being increased, provided the 
 new town has 1,500 inhabitants, and the old one 
 1,000. If gentlemen desire to have it understood, 
 that within the given limits of a large town, you 
 may multiply the number of representatives as 
 many times as you can divide the number of in 
 habitants by 1,500, and leave 1,000 in the old 
 town ; if they mean to do that, then why not take 
 the ratio of 1,500 alone, and stand by it? I should 
 
 prefer that to adopting 4,000 as the increasing 
 number, and then leaving a loop-hole whereby 
 the legislature can divide any town having more 
 than 1,500 inhabitants, and give to each town a 
 representative. I do not believe the Convention 
 mean to do any such thing ; and yet the legisla 
 ture may put that construction on the making of 
 new towns. Now, Sir, I desire that some such 
 amendment as that proposed by the gentleman 
 from Fall Elver, (Mr. Hooper,) shall be adopted. 
 I hope some provision will be made, in this stage 
 or another, if not now in order, by which, when 
 a new town is incorporated, with a sufficient 
 number of inhabitants to give it a representative, 
 the number of representatives for the two towns 
 shall not be increased, if our Constitution pro 
 vides that no new town shall be incorporated with 
 the privilege of representation containing a less 
 number of inhabitants than 1,500, but makes no 
 provision against increasing the number of rep 
 resentatives where the number of inhabitants 
 equal 1,500. The effect, therefore, may be, to 
 increase the number of members in the House of 
 Representatives, in a few years, to an inconve 
 niently great extent. I hope the subject will not 
 be postponed ; and, if it is not, I have an amend 
 ment which I am sure will be in order, and 
 which will obviate the difficulty. 
 
 Mr. SCHOULER, of Boston. Will the gen 
 tleman allow me to ask him a question ? Within 
 the last twenty years the town of Lowell has 
 been set off from the town of Chelmsford ; now 
 I want to ask him which is entitled to be repre 
 sented, Chelmsford or Lowell ? Of course Low 
 ell will be represented, and yet Chelmsford will 
 be left with only population sufficient to entitle 
 her to one representative, or a half of one. Now, 
 I do not think it is justice to the old town, to 
 deprive her of her representative by cutting out a 
 new one within her limits. 
 
 The same is true with regard to Lawrence. I 
 want to know if there is to be no representative 
 in the town from which Lawrence was taken, for 
 all time to come ? I want to know, when we 
 come to have the new town or city of Holyoke, 
 if the town from which it is taken is to be de 
 prived of its representation ? 
 
 Mr. HALLETT. The gentleman asks the 
 question, suppose Lowell, with a population of 
 10,000, is taken from Chelmsford, leaving Chelms 
 ford with a population of only 1,000, whether 
 we are to deprive Chelmsford of her representa 
 tive ? Certainly not. I would give Chelmsford 
 with its 1,000 population, a representative ; but I 
 would provide that the whole population of 
 11,000, which was originally within the limits of 
 one town, should be entitled to no greater number 
 
246 
 
 NEW TOWNS. 
 
 [63d day. 
 
 Thursday,; 
 
 UPTON SARGENT. 
 
 [July 21st. 
 
 of representatives when in two separate towns, 
 than it was when in one and the same town. 
 That is my proposition. The object is to give 
 a reasonable limit to the increase of new towns, 
 so as to prevent their being divided for the pur 
 pose of giving additional representatives. If the 
 legislature go on incorporating new towns, at the 
 rate it has done, for the last five or six years, and 
 representatives are given to each of these new 
 towns, you will soon have a House so large that 
 you will be compelled to abandon town represent 
 ation entirely, and adopt a district system. I 
 hope this subject will not be postponed, but that 
 we shall adopt some amendment to remedy the 
 difficulty, and then incorporate the resolve into 
 the Constitution. 
 
 Mr. UPTON, of Boston. I hope the motion, 
 indefinitely to postpone, will not prevail. I 
 think an amendment may be framed which will 
 be in order, and which will have the effect of 
 remedying the evil. It is a subject of consid 
 erable importance, and one which I hope we 
 shall make provision for. By the provisions you 
 have adopted, you apportion your representa 
 tives under the census of 1850, and that appor 
 tionment holds until a new census is taken. 
 Now, the question before the Convention, as I 
 understand it, is this : Do you mean to have 
 this matter open, so that towns can be divided 
 and entitled to an increased number of repre 
 sentatives without increasing their population? 
 I say you ought not thus to have it, and I 
 hope you will not. I agree substantially, with 
 the position taken by the gentleman for Wilbra- 
 ham, (Mr. Hallett). I had drawn up an amend 
 ment, which I think will meet the case, and 
 which, at a proper time, I propose to offer. It is 
 the following : 
 
 That the Constitution be so amended, that 
 hereafter no town shall be incorporated by which 
 the representation on the present, or any future 
 basis, shall be increased in consequence of the 
 division of any of the existing towns. 
 
 That is the principle which I wish to adopt. I 
 hold that to be a sound principle, and a principle 
 which gentlemen from the rural towns in this 
 Commonwealth ought to follow. 
 
 Mr. SARGENT, of Cambridge. I think, Mr. 
 President, that the debates which we have had 
 upon this question, furnish a most beautiful 
 commentary upon the system of representation 
 we have adopted. The injustice and inequalities 
 of that system, seem to haunt the minds of gen 
 tlemen at every step they take. 
 
 The gentleman for Wilbrahara, (Mr. Hallett,) 
 fears that in consequence of the incorporation of 
 new towns, the House will become so large as to 
 
 render the system obnoxious, and in a few years 
 to overthrow it. To obviate this difficulty, he 
 proposes to ingraft into the Constitution a provis 
 ion, that the number of representatives shall 
 not be increased by incorporating new towns. 
 Well, Sir, let us look at it for a moment, and see 
 how it will stand, if we adopt the amendment 
 which he proposes. We have provided first, that 
 every town in the Commonwealth now incorpo 
 rated having 1,000 inhabitants, shall be entitled to 
 one representative. We have provided farther, 
 that no town shall be hereafter incorporated, with 
 the right of annual representation, containing a 
 population of less than 1,500 inhabitants. That 
 is, if they have 1,500 inhabitants, they shall have 
 an annual representative. Well, Sir, you make 
 the census of 1850, your basis to start with. But, 
 when you come to 1860, what are you to do ? 
 You take your towns, whether they already are 
 incorporated, or whether they shall be incorporated 
 between now and 1860, and apportion their rep 
 resentatives according to the plan you have already 
 adopted. Well, Sir, there is no difficulty in this ; 
 it is all very plain and easily understood. But, 
 Sir, what does the the gentleman for Wilbraham, 
 (Mr. Hallett,) propose to do ? Here is your plan 
 which you have already adopted, providing that 
 at every decennial period you shall so apportion 
 your representatives that each town now incor 
 porated having 1,000 inhabitants shall have one 
 representative annually, and that each town here 
 after incorporated having not less than 1,500 in 
 habitants, shall have an annual representative 
 also ; and yet, with these provisions standing in 
 your Constitution, the gentleman for Wilbraham 
 proposes to adopt another proposition directly in 
 conflict with this, providing that the number of 
 representatives shall not be increased by the in 
 corporation of new towns. Now, Sir, let us look 
 at the practical result of this system thus com 
 plicated. Suppose you have a town with 2,600 
 inhabitants, which should be so divided, that the 
 original town shall contain 1,050 inhabitants, 
 and the new town 1,550. When the next decen 
 nial period arrives, how are you to apportion 
 your representatives. You have one constitutional 
 provision, which declares, that each of these towns 
 are entitled to an annual representative ; and yet 
 you will have another provision declaring that 
 those two towns shall have but one between 
 them. 
 
 Now, Sir, which of these two provisions 
 shall rule, and how shall that question be decided ? 
 This is the position in which we shall be placed 
 if we adopt the amendment proposed by the gen 
 tleman for Wilbraham, (Mr. Hallett). And, Sir, 
 this shows the difficulty into which we are led, 
 
63d day.] 
 
 HARVARD COLLEGE, &c. 
 
 247 
 
 Thursday,] 
 
 ELY HALLETT WILSON BOUTWELL. 
 
 [July 21st. 
 
 step by step, when we attempt to remedy one 
 evil, or one wrong principle by establishing 
 another wrong principle. Sir, I think we had 
 better pause, an^. not plunge ourselves into greater 
 difficulties by attempting to convert two wrongs 
 into one right. Sir, every step we take in that 
 direction plunges us into greater difficulties. I 
 hope, therefore, that the subject will be indefi 
 nitely postponed. 
 
 Mr. ELY, of Westfield. I move the previous 
 question. 
 
 Mr. HALLETT. If the gentleman will allow 
 me to make just a single explanation in reply to 
 the gentleman from Cambridge, (Mr. Sargent,) 
 I will then renew his motion. 
 
 Mr. ELY. With that understanding, I will 
 withdraw the motion. 
 
 Mr. HALLETT. The gentleman from Cam 
 bridge, goes on as if each town had an absolute 
 right of division with the privilege of representa 
 tion, without reference to any other power. 
 Now, Sir, this matter must all go before the leg 
 islature. If a town with 2,000 inhabitants, asks 
 to be divided, and the legislature make the divi 
 sion, they will make it with certain restrictions 
 which shall guard the right of representation. 
 The legislature will take care of that ; and, after 
 all, there will be no very great difficulties to en 
 counter. All they have to do is, that when a new 
 town is to be incorporated under these circum 
 stances, to provide, as a condition upon which it 
 shall be incorporated, that the representation of 
 the two towns shall not be increased thereby. It 
 seems to me very necessary, that we should make 
 some provision to prevent multiplying the repre 
 sentatives of these small towns, if we mean to 
 stand by the basis which we have adopted. I 
 hope, therefore, that the resolve will be properly 
 amended, and then passed. I now renew the mo 
 tion for the previous question. 
 
 The previous question was seconded, and the 
 main question ordered. 
 
 Mr. HOOPER, of Fall River. I desire to 
 inquire if the main question is not upon the 
 motion indefinitely to postpone ? 
 
 The PRESIDENT. The previous question 
 cuts off the motion to postpone ; and the question, 
 therefore, now is, upon ordering the resolve to a 
 second reading. 
 
 The question was taken, and the Convention 
 refused to order the resolve to a second reading. 
 
 Harvard College. 
 
 The next business in the Orders of the Day 
 was the consideration of the resolves upon the 
 subject of Harvard College, the question being 
 upon its final passage. 
 
 Mr. KNOWLTON moved that the subject be 
 passed over in the Orders of the Day. 
 
 The motion was not agreed to. 
 
 The resolve was then read by the Secretary. 
 
 On motion of Mr. BOUTWELL, for Berlin, 
 the yeas and nays were ordered upon its final 
 
 Mr. WILSON, of Natick. Mr. President: 
 Having, for some years, taken a deep interest in 
 the discussions growing out of the questions that 
 have arisen concerning Harvard University ; 
 having introduced, early in the session of the 
 Convention, a proposition to authorize the legis 
 lature, in joint ballot, to choose the corporators of 
 the University for the term of seven years, I 
 had intended to address the Convention at some 
 length upon the resolution now pending. I have 
 prepared, with considerable care and labor, an 
 argument to sustain the position that the college 
 was founded by the Commonwealth, and that the 
 Commonwealth has the right to change the mode 
 of choosing the board of corporators, and that 
 the interest of the university would be promoted 
 by so doing. I hold in my hand more than fifty 
 closely written pages of quotations from the 
 records of the State, from the best authorities I 
 could find, to show the connection of the State 
 with the college, and the powers exercised over 
 its government, through a long series of years. 
 
 Sir, had this resolution come up for considera 
 tion earlier in this session, I should have claimed 
 the indulgence and attention of the Convention 
 upon this great question a question upon which 
 the people of this Commonwealth take the deep 
 est interest. But at this time, when we are 
 pressed for time ; when we have limited each 
 speaker to half an hour ; when all of us are 
 exhausted and weary, I shall forego what I had 
 intended to say upon the merits of the pend 
 ing resolution. The chairman of the Committee, 
 (Mr. Knowlton,) in his very able speech, has 
 placed the question upon the basis on which we 
 are content to rest it. 
 
 I desire, Sir, to say a few words in reply to the 
 remarks made the other day by the member from 
 Danvers (Mr. Braman). I regret that he is not 
 now in his seat. I have not a word to say 
 in reply to the personal allusion made by the 
 member from Danvers. I fully concur in the 
 remark made by Governor Leonard, one of the 
 foremost statesmen of the republic, on the floor 
 of the American Senate, that no man was per 
 sonally of consequence enough to occupy the 
 time of the body of which he was a member, one 
 minute, by explanations of a personal character. 
 But the member from Danvers came to the de 
 fence of Mr. Francis Bowen, who was rejected 
 
248 
 
 HARVARD COLLEGE. 
 
 [63d day. 
 
 Thursday,] 
 
 PARKER WILSON LOTHROP. 
 
 [July 21st. 
 
 in 1851, by the board of overseers, of which 
 many of us on the floor of this Convention were 
 members. I am ready, here or elsewhere, at all 
 times to defend that glorious act, which put the 
 hand of condemnation upon the libeller of the 
 advocates of popular rights in the old world and 
 in the new. I am ready to defend that act, wheth 
 er it be assailed by the polished rhethoric of the 
 gentleman from Boston, (Mr. Hillard,) or the 
 coarse wit of the member from Danvers, (Mr. 
 Bramau). 
 
 I propose, Sir, to prove the truth of the dec 
 laration made the other day, in reply to the charge 
 of the gentleman from Boston, (Mr. Hillard,) 
 that Francis Bowen was rejected, in 1851, not 
 alone for his sentiments and opinions, but for 
 ignorance of the historical questions discussed, 
 and for misquoting, misstating, and garbling his 
 torical authorities. 
 
 Mr. PAKKE11, of Cambridge. I rise to a 
 question of order. It is the prevailing fashion, I 
 believe, to make points of order. The question 
 which I wish to suggest is, whether it is in order 
 for the gentleman from Xatick to try the case of 
 the Professor of History over again. That sub 
 ject, Sir, was drawn into the debate here, I mean 
 the subject of the rejection of the Professor of 
 History. I believe, in the first place, there were 
 some remarks made by the gentleman from Bos 
 ton, to which the gentleman from Natick, and the 
 gentleman for Abington, made their replies at 
 the time. I had hoped that that subject a sub 
 ject foreign entirely to any business before the 
 Convention might, at least, have been suffered to 
 rest there ; but the gentleman from Danvers, some 
 days since, saw fit to allude to the matter again, 
 and the gentleman from Natick replied to him 
 without any objection being made. Having been 
 up twice before the Convention, it seems to me 
 the gentleman who was nominated as Professor of 
 History and rejected, should be allowed to sleep 
 in peace, and not have his case farther discussed 
 before this Convention. It seems to me that the 
 time of the Convention is quite too precious to be 
 wasted in talcing up that subject again for farther 
 discussion. There is no gentleman I would listen 
 to with more pleasure than I would to the gentle 
 man from Natick. I do not make an objection 
 because he proposes to discuss the matter, but 
 because it seems to me that it is hardly just 
 towards the gentleman who has been the subject 
 of so much remark, that he should be drawn in 
 here for the third time, without his agency, and 
 without his consent. 
 
 The PRESIDENT. The Chair cannot under 
 take, at this stage of the gentleman s remarks, to 
 say that he is out of order. 
 
 Mr. WILSON, of Natick. Mr. President : I 
 am quite sure it would be in order for me to dis 
 cuss the subject, in order to show that the Con 
 vention should adopt the resolution now pending 
 that the action of the corporation of the college 
 in nominating Francis Bowen to a Professorship 
 after his rejection from the Professorship of His 
 tory, for his opinions, which unfitted him to be 
 the teacher of American young men, and for his 
 ignorance, exhibited in the discussions of historical 
 questions ; demand that a change should be 
 made in the organization, of that board of corpo 
 rators a change that shall compel the corporators 
 to put that institution along abreast of the spirit 
 of the age. The action of the corporation of the 
 university in sustaining Francis Bowen, is one of 
 the strongest reasons for the action of the Conven 
 tion ; and it is in order to show what that action 
 was, and to explain and defend the motives and 
 action of the overseers of the institution in 1851. 
 
 The PRESIDENT. The gentleman from Na 
 tick will proceed. 
 
 Mr. WILSON. I have no wish, Mr. Presi 
 dent, to take up the time of the Convention with 
 the discussion of this subject. I will forego what 
 I was prepared to say, and at some future time I 
 may publish so much of it as I deem necessary to 
 vindicate the action of the overseers of 1851. 
 
 Mr. LOTHROP, of Boston. I move to strike 
 out the words " hereafter granted," in the last 
 line of the resolve. 
 
 The resolve as amended, would then read : 
 
 Resolved, That the Constitution ought to be 
 amended by adding to chapter 5, section 1, the 
 following article, to wit : 
 
 The legislature shall forever have full power 
 and authority, as may be judged needful for the 
 advancement of learning, to grant any farther 
 powers to, or alter, limit, annul, or restrain, any 
 of the powers now vested in the President and 
 Fellows of Harvard College : provided, the obli 
 gation of contracts shall not be imj aired ; and 
 shall have the like power and authority over all 
 corporate franchises for the purposes of education 
 in this Commonwealth. 
 
 Mr. LOTHROP. I have no very strong ob 
 jection to the resolution as it stands at present. 
 I think, however, it will be improved by the 
 amendment I have proposed, because that amend 
 ment would make it more general and compre 
 hensive. When this resolution was before us a 
 few days ago, I proposed to amend by including 
 the other colleges of the Commonwealth. That 
 amendment was ruled out of order. It was also 
 said by the chairman of this Committee, that that 
 amendment was unnecessary, because the lan 
 guage of this resolution was already incorporated 
 into the charters of the other two colleges. That 
 
63d day.] 
 
 HARVARD COLLEGE. 
 
 249 
 
 Thursday,] 
 
 LOTHROP. 
 
 [July 21st. 
 
 may be, Sir, but we have many other institutions 
 for educational purposes in this Commonwealth, 
 besides those two colleges. We have a great 
 many academies, and some of their charters run 
 far back, some of them dating even at an earlier 
 period than the charters of these colleges. Several 
 of these academies, also, have now a considerable 
 amount of funds at their disposal. Others of 
 them, as has been the case with that at Groton, 
 for instance, may have their funds greatly increased 
 hereafter by rich merchants, who were once 
 pupils of these academies, and natives of the towns 
 where they are located. They may become very 
 important and influential institutions of learning, 
 hold a large amount of funds, and still keeping 
 their charters as academies, may become as worthy 
 of the care and oversight of the Commonwealth, 
 and may demand that care and oversight as much 
 as Harvard University or any of the colleges of 
 the State ; and unless gentlemen can say that the 
 provision contained in the first part of this reso 
 lution is expressly declared in the charters upon 
 academies, my amendment ought to prevail. If I 
 understand the distinguished gentleman for Berlin, 
 (Mr. Boutwell,) this resolution simply declares 
 expressly and unequivocally in its application to 
 Harvard College, a general principle which, in 
 point of fact, is applicable to every institution 
 created by the State ; and if he deems it necessa 
 ry to make the distinct avowal of this principle in 
 regard to Harvard College, then I think he must 
 admit and maintain or if he does not, I do main 
 tain that it is important that the Constitution 
 should not leave it equivocal or doubtful, whether 
 this principle does apply to these academies, or all 
 institutions of learning in the Commonwealth. 
 The Constitution ought not to leave that point 
 equivocal or doubtful. The main reason given 
 by the chairman of this Committee, the other 
 day, for the adoption of the resolution as reported, 
 was that there might be no doubt upon the sub 
 ject. He contended that the Constitution now 
 virtually gives to the legislature the power which 
 is here given ; but there might be some doubt 
 about it, and in order to remove that doubt and 
 make the matter distinct and clear, this resolution 
 was introduced. I say it is equally desirable that 
 there should not be any doubt, whether the legis 
 lature has like power over all the institutions in 
 corporated in this Commonwealth for educational 
 purposes. If you retain the words, at the close of 
 this resolution, " hereafter granted," you do leave 
 that matter doubtful ; or rather you remove all 
 doubt, and virtually say, that all other institu 
 tions for educational purposes, now incorporated, 
 would not come in under the resolution, because 
 the phrase, "hereafter granted," implies that 
 
 17 3 
 
 those already granted, are not included. The 
 principal reason which makes it necessary to pass 
 the first part of the resolution, in relation to Har 
 vard College, makes it equally necessary, and 
 equally important, that you pass the same re 
 solution in regard to all institutions incorpo 
 rated for educational purposes in the Common 
 wealth. It is desirable that the academies of 
 the Commonwealth, some of which may become 
 very important institutions hereafter, hold a large 
 amount of funds and exercise a wide influence, 
 should be included under the same general rule, 
 which is here expressly applied to Harvard Col 
 lege, which by their charters is applied to the 
 other colleges, and which by the terms of the 
 resolution is to be henceforth applied to all " corpo 
 rate franchises henceforth granted " for educational 
 purposes. Unless there is in the resolution some 
 thing specific and peculiar aimed exclusively at 
 Harvard College, there can be no objection to my 
 amendment, and every reason that can be given 
 for the adoption of the resolution at all, applies 
 with equal force to the adoption of the amend 
 ment. 
 
 I have said that I had no very strong objec 
 tion to the resolution reported by the Committee. 
 I should have been glad if the Committee had 
 reported something a little more distinct, definite, 
 and full, in relation to this subject. There were 
 various orders submitted to that Committee for 
 their consideration, emanating from opposite 
 sources, and opposite in their character. I was in 
 hopes that the Committee would, in their Report, 
 refer to those orders, and that they would indi 
 cate pretty distinctly what they thought were, or 
 ought to be, the relations subsisting between the 
 Commonwealth and the university at Cambridge,, 
 and what line of policy it would be wise to pur 
 sue in relation to the college. I do not know 
 whether the Committee intend to report farther 
 in relation to these orders, or not. As this reso 
 lution has been explained by the gentlemen, I 
 have no particular objection to it. If it is intended, 
 as they say it is, simply to give the State of Mas 
 sachusetts all the right, power, and control over 
 the college which it can have, except the power to 
 violate its own faith, break and invalidate its own 
 contracts, and if that is all which the resolution 
 is intended to convey, of course there can be no 
 objection to it. No one will deny that the State 
 has, and ought to have, that power. But, if it is- 
 intended to convey anything more; if there is 
 anything concealed ; if the provision alluded to,. 
 " provided the obligation of contracts shall not be 
 impaired," does not cover the charter of the col 
 lege, if it is intended that the legislature shall 
 have power to take possession of this whole in- 
 
250 
 
 HARVARD COLLEGE. 
 
 [63d day. 
 
 Thursday,] 
 
 LOTHROP. 
 
 [July 21st. 
 
 stitution and all its funds, and bring it into the 
 arena of politics and State legislation every year, 
 then 1 object to the resolution as wrong in itself, 
 extremely inexpedient and impolitic ; prejudicial 
 in every point of view to the interests of the col 
 lege, and to that great object, the advancement of 
 learning and education, which the college is in 
 stituted to promote. After the debate upon this 
 subject the other day if I may be permitted to al 
 lude to something which was said out of debate 
 my distinguished friend representing Berlin (Mr. 
 Boutwell) said to me that I was afraid some harm 
 would be done the college, that I was afraid to 
 trust it with the State, &c. Sir, in one sense, I 
 am not afraid of anything in this world. I be 
 lieve in God, in his overruling providence, and I 
 believe that progress is the law of that providence. 
 But I do not believe that government has much 
 to do with human progress, and I do not believe 
 in the power of government to do mxich good 
 in the world. I think that every gentleman 
 must be satisfied, from the discussiona which we 
 have had here this very day, from the discussion 
 of the last three months in this hall, that govern 
 ment is nothing but a necessary evil, a nuisance 
 that cannot be abated from civil society. It has 
 never done much, and cannot do much, to carry 
 the world forward. It is the ship, the mariner s 
 compass, the cotton-gin, the spinning-jenny, the 
 printing-press, the steam-engine, the railroad, the 
 telegraph, and all the other discoveries and in 
 ventions that result from human thought, and 
 give impulse to individual action, which have 
 carried the world forward. Government has never 
 done much positive good for the world. It can 
 only prevent some evils, and that is the best you 
 can say of it. The very discussion we have had 
 here this morning, helps to confirm what all 
 human history teaches, that in regard to govern 
 ment there is a continual struggle of conflicting 
 opinions going on. Nothing is settled or deter 
 mined ; all legislation is, to this hour, an experi 
 ment ; and taking this assembly as a type, I may 
 say that even in this country, at this moment, not 
 a single important principle entering into the or 
 ganization and structure of civil government 
 can be considered as fixed and established by the 
 consenting wisdom of the people, not one that 
 men are not discussing, and attempting, in 
 j(ome way, to change, modify, or overturn and 
 destroy ; and I have not much respect, there 
 fore, for government. I am very glad that 
 with us it is so good as it is ; and I submit 
 to it and honor it for what it is worth ; but I 
 do not attach much importance to it as an instru 
 ment of social progress. I think the great reason 
 why we have made so much progress in this 
 
 country, is not because of any direct and positive 
 power of the government, but because of the 
 extent to which our government lets the people _ 
 alone, and leaves institutions alone to individual 
 energy, enterprise, thought, and action. Has the 
 government of Massachusetts raised up Harvard 
 College to be the noble institution it is ? By no 
 means. The government permitted it to exist, 
 and individual benefactions, individual enter 
 prise, effort, and wisdom, have made it what it 
 is. Taking into consideration the little gov 
 ernment has done for this institution during the 
 more than two hundred years which have elapsed 
 since its foundation, and remembering that of 
 that little, by far the greater part were appropria 
 tions to meet its annual expenses, so that the 
 State, and the living generations of youth edu 
 cated at the college, had then the benefit, and the 
 whole benefit of these appropriations ; and re 
 membering, also, that this was done long years 
 ago, at a time when nineteen-twentieths of the 
 people of the Commonwealth were of the same 
 religious denomination ; remembering these things 
 which cannot be denied I say, that if this 
 resolution is intended to give the legislature 
 power henceforth, to take that institution under 
 its entire and absolute control, and bring the elec 
 tion of its president and fellows, and the direct 
 management of its affairs into the arena of poli 
 tics and legislation ; and, to do this now, at a 
 time when the State is divided into all manner of 
 religious denominations, each of which, if you 
 make it a State institution, may claim a right to 
 be represented on its boards of government, and 
 to have its opinions consulted in the course of 
 studies and text-books appointed ; and to do this 
 now, when the institution itself has grown, from 
 a small academy, to be the noblest seminary of 
 learning on this Western Hemisphere, with large ""* 
 means and instrumentalities of education, nearly 
 the whole of which must be acknowledged to 
 come, not from State endowments, but from the 
 donations and bequests of private individuals ; if 
 the resolution contemplates giving the legislature 
 power, and an invitation to do this, then I say 
 that I am opposed to it, both as a matter of right 
 and of expediency. I do not believe it would be 
 just for the State to do this. I am sure it would 
 be most injurious to the interests of the college, 
 and to the great good the college can do the State 
 and the country. A State cannot manage a 
 higher seminary of learning, and make it useful 
 and progressive, so easily or so well as a corpo 
 ration of private individuals ; and, admitting that 
 the corporation of Harvard College have not 
 been perfectly wise, free from all the errors inci 
 dent to humanity, I yet maintain that neither the 
 
63d day.] 
 
 HARVARD COLLEGE. 
 
 251 
 
 Thursday,; 
 
 LOTHROP. 
 
 [July 21st. 
 
 State nor any political or religious party in the 
 State, could have managed the college more suc 
 cessfully, or conducted it upon broader, more 
 generous, catholic principles. In this respect it 
 may challenge comparison with any other col 
 lege in the land. Gentlemen say they desire to 
 make the institution more popular, to infuse a 
 more popular spirit into it, and bring it more 
 into sympathy with the people. Sir, in this de 
 sire, I go with gentlemen with my whole heart, 
 so far as it can be done by any wise and legiti 
 mate means. I do not concur with gentlemen in 
 the alleged necessity of any extraordinary efforts 
 in this direction. If you look at the history of 
 the college, its present condition and its continu 
 ally increasing adaptation to the growing intellec 
 tual wants of the age, I do not see how gentle 
 men can stand up here and say that it is not in 
 . harmony with the people ; that is, with their 
 interests and wants, in regard to education. If a 
 tree is known by its fruits, then I maintain that 
 Harvard College has always been in sympathy 
 with the people, and that, at all periods of her 
 history, the leading popular men of the day have 
 come forth from that college. This fact will be 
 apparent to all who look over the catalogue of 
 the names of the graduates of that institution, 
 from the earliest period down through the days 
 of the Revolution, to our own times. This fact 
 is especially seen, by looking around upon our 
 own community in Massachusetts. I maintain 
 -that many of the leaders in every popular move 
 ment, made among us at the present day, are sons 
 of Harvard. Phillips, Quincy, Rantoul, Dana, 
 Sumner, Adams, Gushing, Bancroft are not 
 these the names of men prominent in matters of 
 moral, social, or democratic reform ? are they not 
 sons of Harvard ? They were educated at that 
 institution ; their characters were there subjected 
 to many forming influences, and whatever their 
 present power intellectual and moral they owe 
 as much, if not more of it, to Harvard College, 
 than to anything else. Take the whole history 
 of that institution, from its origin down to the 
 ^present day. I believe it will be found, that the 
 most leading and popular men of Massachusetts ; 
 those, in every generation, who have been the 
 most earnest advocates of reform and progress, 
 have* been sons of Harvard College. I maintain, 
 and the position is amply sustained by the facts 
 of the case, that the influence always exerted 
 upon the minds of young men at that institution, 
 has been a good influence, an influence favorable 
 to social progress. It has not been a narrow 
 ing, bigoted, sectarian spirit which has prevailed 
 there, but a large, generous and progressive spirit ; 
 and we have a right to maintain, that that col- 
 
 I lege has, in an eminent degree, contributed to 
 the spirit of popular progress. Upon the prin 
 ciple that a tree is to be judged by its fruit, and 
 looking at the character of those whom Harvard 
 College has sent out into the world, I maintain 
 that the college has never been behind the age, or 
 wanting in sympathy towards the best interests 
 of the people. The same position is true, if we 
 look at the college itself, and the provision made 
 to meet the educational wants of the people. I 
 ask if there is any kind of learning, education, 
 or preparation for life, which the people of this 
 country desire for their children, that is not pro 
 vided for them at that institution ? Has not that 
 college continually made progress in all direc 
 tions, through the efforts of its friends, and the 
 enterprise of those who have had charge of it ? 
 Look at its academical department now, and see 
 what progress has been made there, in enlarging 
 and perfecting its cour.se of study. Look at its 
 law school, with the best law library to be found 
 upon this continent, if, indeed, there is a better 
 in any place in the world. Look at its medical 
 department, and its scientific school, founded by 
 a munificent donation of $50,000, from a distin 
 guished merchant of this city, one of those rich 
 men, of whom, as the gentleman said, we might 
 kindly lay a thousand of them under the sods of 
 Mount Auburn and not miss them. Look at the 
 arrangements of that scientific school, and the 
 facilities which it alfords for thoroughly educating 
 men for all the practical purposes of life. Look 
 at its divinity school, and the principle upon 
 which that school is founded; and I ask if it 
 would be possible for the State to take control of 
 it, and make a broader, better, more catholic and 
 Christian foundation than the one upon which 
 that school now rests ? No man going there to 
 acquire theological education, is called upon to 
 subscribe to any articles of faith, or the doctrines 
 of any particular denomination ; nor is such sub 
 scription required of any professor ; but every one 
 connected with that school is at liberty to study 
 the Divine Oracles, and interpret them according 
 to the dictates of his own conscience, and gather 
 from them what he deems to be their true mean 
 ing, and go forth into the world to connect him 
 self with whatever religious denomination he 
 chooses. 
 
 I say, look at the college in all these depart 
 ments, and see if it has not constantly endeavored 
 to come up to the wants of the people of this 
 Commonwealth by presenting the means and op 
 portunities for the best education that could be 
 procured in the country. Has there ever been, 
 on the part of those who have had charge of this 
 institution, any action, which, fairly construed, 
 
252 
 
 HARVARD COLLEGE. 
 
 [63d day. 
 
 Thursday,] 
 
 LOTH no P. 
 
 [July 21st. 
 
 could be regarded as an expression, or evidence, of 
 their want of sympathy with the people ? or has 
 there ever been, as regards education, any want 
 expressed, or manifested, by the people, which 
 they have not endeavored to meet ? I do not think, 
 therefore, that we have a right to say that the col 
 lege has no sympathy with the people, or with 
 popular wants and interests, merely because the 
 corporation of the college is a close corporation, 
 as it is termed, and its members, in filling vacan 
 cies, have chosen men with wlio.se characters and 
 principles they were well acquainted, and who, 
 they believed, would sympathize and unite with 
 them in administering the college upon broad, 
 catholic, unsectarian principles. The college was 
 not established that the offices in its corporation 
 might be for the benefit of those who hold them, 
 a benefit in which the whole community might 
 have a right and claim to share. The offices in 
 its corporation exist, that the college may be -\vell 
 administered ; that it may be carried forward, as 
 a seminary of education, in all the great depart 
 ments of learning. And the only question of 
 any practical importance, is not, whether this or 
 that man, of this or that political or religious par 
 ty, has been chosen a member of the corporation, 
 but, has the college been well administered ; has 
 it grown in means and instrumentalities of edu 
 cation, and in adaptation to the wants and pro 
 gress of the age? And this question, I maintain, 
 must be answered in the affimative. No other 
 institution of learning in the country has made 
 greater, if any have made as great, progress during 
 the last half century, as Harvard College. The 
 offices in its corporation are offices of labor and 
 responsibility, and they have been well filled, 
 hitherto, throughout the whole history of the 
 college, by men who had no object but to pro 
 mote the best interest of this community by pro 
 moting the advancement of that institution. If 
 we review the history of the college, therefore, if 
 we review the catalogue of its graduates, and con 
 sider the present condition of the college, and all 
 its instrumentalities for the promotion of learning, 
 we shall find that all who have had the control of 
 it have endeavored, according to their best judg 
 ment and ability, to bring it into sympathy with 
 the wants and interests of the people, and make 
 it promote their welfare and interest by the ad 
 vancement and diffusion of sound learning. 
 
 As this question about the organization of the 
 college is one of some interest, I may be per 
 mitted to say, that if I was supreme in this mat 
 ter, and could take the colleges of the Common 
 wealth, and organize them according to my own 
 judgment, I would adopt a plan which I propose 
 to state, and I was in hopes that the various 
 
 orders submitted to the Committee, would induce 
 them to take the matter into consideration, and, 
 perhaps, present something of the same sort. I 
 would have a board of trustees for each of the other 
 colleges, precisely similar to the corporation of 
 Harvard College, perhaps a little larger, but still 
 small ; and a self- renewing board, which should 
 originate all measures, have all the responsi 
 bility, and the controlling power over the institu 
 tion. I believe that in all matters a small body 
 acts better than a large one, and that a small body, 
 having charge of a college, will be more faithful 
 in carrying forward measures for the benefit of 
 the college and increasing its value to the people 
 of the State, than a large body, where the respon 
 sibility is greatly divided, consequently diminished. 
 I would have such a board for each of these col 
 leges, and then I would have a large board of 
 overseers, like the overseers of Harvard College, 
 consisting of fifty for each college ; and these over 
 seers should be chosen by the alumni of each col 
 lege, in convention assembled, holding office for a 
 limited term, or as long as they chose to serve, and 
 I would include in the alumni all who had re 
 ceived honorary degrees in the college. 
 
 This siiggests to me another point to which I 
 intended to refer, while speaking of the sympathy 
 of the college with the people. If you will look 
 throxigh the list of the honorary degrees it has 
 conferred, you will find that whenever there has 
 been a man who has distinguished himself in any 
 department, but who had not the advantages of a 
 collegiate education, was not a son of Harvard or 
 any other college, the college at Cambridge has 
 been among the first to recognize the merits of 
 such a self-made man, and give him an honorary 
 degree ; showing, thereby, that the persons who 
 had charge of the college felt some sympathy 
 for the people, and with every manifestation of 
 excellence, superiority, and progress, among 
 them. 
 
 I would organize these institutions in the way 
 I have suggested, because nothing is so impor 
 tant for any of these colleges, as to increase alike 
 the interest and influence of the alumni of each 
 college, in its prosperity and welfare. A board of 
 overseers for each college, chosen by the graduates, 
 from their own number, of that college in con 
 vention assembled, would effectually produce this 
 increased interest and influence. I regret that no 
 distinct plan, no outlines of policy, nothing indi 
 cating the precise relations of the college to the 
 State has been reported by the Committee ; nothing 
 but a single resolution, which decides nothing, and 
 leaves it doubtful what those who like to speak 
 of the college as a State institution, a government 
 institution, propose to do. 
 
63d day.] 
 
 HARVARD COLLEGE. 
 
 253 
 
 Thursday,] 
 
 LOTHROP HALLETT. 
 
 [July 21st. 
 
 There are one or two positions, which I -wish, 
 before I sit down, to state ; propositions which 
 gentlemen acquainted with the history of the 
 college, will acknowledge, and which, fairly 
 stated and considered, ought to influence the fu 
 ture action of the State, in relation to the college. 
 The distinguished gentleman for Berlin, (Mr. 
 Boutwell,) has several times spoken of this as a 
 State institution. I believe that in the debate 
 the other day, on a resolution which came from 
 the Committee on Education I was not present 
 at that time, but I see him reported as using the 
 words " government institution." If it is in 
 tended by this resolution, or if it is intended by 
 that gentleman in his remarks, to claim that 
 there is a special relation between Harvard Col 
 lege and the State, which authorizes such expres 
 sions, I should take issue with him on that point. 
 The military academy, at West Point, is a gov 
 ernment institution ; the reform school, at West- 
 borough, is a government institution ; the State s 
 prison is a government institution, a State insti 
 tution. In regard to the reform school at West- 
 borough, the State appoints all the officers, owns 
 all the property, controls and manages the whole 
 thing, in any way, at any point. It is, therefore, 
 a State institution. But, a college, a bank, a 
 railroad, though the State may give funds to it, 
 though the State may be interested in it, though 
 the State may have created it by a charter, it is 
 still not a State institution, but an institution of 
 the State, and is within the control and manage 
 ment of its properly constituted authorities. 
 Now, my first proposition in regard to Harvard 
 College, is this : If we go back to the early his 
 tory of this college, during the time of the colo 
 nial government, I think you will find that the 
 institution made very little progress so long as 
 there was constant interference on the part of the 
 State, with its affairs and interests. The college 
 never began to grow and prosper, and take steps 
 towards the great institution that it now is, so 
 long as the colonial government was constantly 
 interfering with it. It was only after it had 
 worked itself free, to stand on its own founda 
 tion, that it began to rise and flourish. The inter 
 ference of the State affected it in various ways ; 
 but more particularly, in regard to the important 
 matter of the presidency of the college. You 
 will find, on looking at its history and reading 
 the record of the board of overseers, that it was 
 almost impossible to get the best men in the State 
 to take the office of president. There were 
 innumerable cases in which gentlemen, who 
 were consulted whether they would take that 
 office, declined, because then the salary was pre 
 carious, dependent upon an appropriation from 
 
 the colonial legislature. In other cases, gentle 
 men who were elected, and had agreed to accept 
 it, had to decline, because the legislature would 
 make no appropriation. My second proposition 
 is, that all, or very nearly all, the funds which 
 the college has ever received from the State, were 
 received as appropriations to meet contingent ex 
 penses, to pay the salary of the president and 
 other officers, or defray the expenses of indigent 
 students. These appropriations were all expended 
 during the year when they were made ; and the 
 community, the young men of that time, the 
 generations growing up then, had the return for 
 these appropriations to the college, in the educa 
 tion which they received. There is not in a single 
 endowment 
 
 [Here the time allowed under the rule, expired, 
 and the hammer fell.] 
 
 Mr. HALLETT, for Wilbraham. I have 
 listened with a great deal of interest, to the re 
 marks of the gentleman from Boston. He made 
 an appeal in this wise : whether Harvard College 
 had ever failed to conform to the wishes of the 
 people in its action. I would not have replied to 
 anything else which the gentleman said, but I do 
 feel it to be my bounden duty to mention one 
 single act in the history of Harvard College, with 
 which I was personally connected, relating to her 
 respect for the laws of this Commonwealth. In 
 1828 an act was passed by the legislature of 
 Massachusetts, requiring that Harvard College, 
 thereafter, in the filling up of the clerical portion 
 of the board of overseers, should have no respect 
 to denominations. That order or resolve was 
 passed by the legislature of Massachusetts, re 
 quiring the concurrence of the board of fellows 
 of the college five gentlemen before it could 
 become a by-law of the college. It slept on the 
 statute book from 1828 to 1843 ; and during the 
 whole of that period, no person was elected to 
 the clerical board of the college, that was not of 
 one particular denomination. 
 
 In 1843 a political change took place in the 
 administration of the government of the Com 
 monwealth of Massachusetts, for the first time 
 since 1824. Although there was a majority of 
 the Senate one way, yet with the minority and 
 the Council, there was a majority of the board 
 of Harvard College, of different political sen 
 timents from those who had remained there since 
 1824. 
 
 A MEMBER. Of different religion ? 
 
 Mr. HALLETT. No, Sir, there was no re 
 ligion about it ; it was all politics. It was then 
 proposed in the board of overseers, that the fel 
 lows should adopt a rule, which we reCnacted, 
 that the vacancies, which then amounted to four, 
 
254 
 
 HARVARD COLLEGE. 
 
 [63d day. 
 
 Thursday/ 
 
 HALLETT WILSON. 
 
 [July 21st. 
 
 in the board, should be filled without regard to 
 denomination. That order passed the board, and 
 was sent down to the fellows for their concur 
 rence, and it remained there one fortnight. The 
 majority of the board took the determination 
 and I know very well they would have adhered 
 to it as long as they had any vitality, officially 
 that no nomination coming from Harvard College 
 should be confirmed until the board of fellows 
 did adopt that order. For one meeting, it passed 
 over ; but when the fellows found there was a 
 determined resolution to carry out the will of the 
 board of overseers, they accepted the order, and 
 they went on and did the wonderful thing of 
 electing four clerical gentlemen, taking one from 
 the Orthodox church, one from the Baptist, one 
 from the Universalist, even, and one from the 
 Episcopalian. Those were the four denomina 
 tions. It was then most alarming and terrifying 
 to a very reverend gentleman of the liberal order 
 of Christians, and he expressed himself with a 
 great feeling of awe and indignation towards 
 some of us, that we were most irreverently lay 
 ing our hands on Harvard College, to destroy the 
 intention of the original founders of that institu 
 tion. And thereupon, being brought up as I 
 was, an old-fashioned Baptist I regret to say 
 that I have not honored the profession as I ought 
 to have done I said to that gentleman, "Who 
 has perverted the original foundation of Harvard 
 College, if that be the question ? What would 
 Harvard, and Ellis, and the rest of them say, to 
 hear the doctrines preached which you preach in 
 your pulpits?" Those doctrines were denounced 
 by the early founders of the college as litt e better 
 than heresy. We restore to the college, at least, 
 religious liberty, whatever else may be its fate. 
 That was the first time when Harvard College 
 was opened to religious freedom ; for she had 
 been excluded from religious freedom in the 
 hands of the liberal Christians ! Sir, I am no 
 bigot, on any point ; I am as universal a man, as 
 regards religious profession, as can be found any 
 where. But that showed to me, what all history 
 shows, that you cannot trust anything connected 
 with religious freedom, in the hands of one de 
 nomination. I would not have trusted the Or 
 thodox, any more than the liberal Christians. 
 For I remember and this is an illustration of 
 that idea that there was one Orthodox clergy 
 man in that board. How he got there, I do not 
 know ; but he happened to be there, in solitary 
 grandeur, and when we proposed to him that we 
 were going to open Harvard College to all denom 
 inations of Christians, he was most delighted, and 
 clapped his hands with joy, and said, "I go with 
 you." But when we went farther, and proposed 
 
 to introduce the Rev. Mr. Ballou, a TJniversalist 
 clergyman, this reverend gentleman was horrified 
 at the idea of opening it to every-body, and pro 
 tested against it. 
 
 The conclusion of the whole matter is and I 
 appeal to the liberality of the last gentleman who 
 spoke, and a more liberal and enlightened gentle 
 man I do not know, and there is none for whom 
 I entertain a higher respect, for I would trust 
 him sooner than any denomination, or his own 
 denomination whether the supervision of the 
 legislature has not had a pure, wholesome, bene 
 ficial influence, over this institution, in which we 
 all take pride. That is just what you want, and 
 nothing more : and whenever the influence of 
 sects come in to disturb, your legislature here, 
 and your people behind them, are the best pos 
 sible source to go to, to correct these evils. I 
 think, therefore, this resolve should pass, pre 
 cisely as it is ; and that it should pass with the 
 most cordial understanding between us, and the 
 people when they adopt it, and Harvard College, 
 which I trust we shall guard as the apple of our 
 eye, and as the fountain from Avhence are to flow 
 streams of purity and intelligence, to elevate and 
 purify the land. 
 
 Mr. WILSON, of Natick. Mr. President : My 
 friend from Boston, (Mr. Lothrop,) has opened a 
 subject, upon which I have a few words to say. 
 He has spoken with all the ardor and generosity 
 of his nature, of the liberality of Harvard College, 
 and of the men who direct and control it. 
 
 Mr. LOTHROP. If the gentleman will allow 
 me, I will tell him what I said. I referred to the 
 efforts of these men to keep the college along 
 with the wants of the people. 
 
 Mr. WILSON. The gentleman, as he states, 
 spoke of the efforts of these men to keep the col- , 
 lege along with the wants of the people. But he 
 held out the idea, also, that in its management, it 
 was guided by men of liberal opinions, who kept 
 it abreast of the spirit of the age along with the 
 sentiments and opinions of the people. Upon this 
 theme, the gentleman descanted with all the ardor 
 of sincere conviction. Now, Sir, I have a word 
 to say upon this topic, thus introduced by my 
 friend from Boston. 
 
 In looking over the catalogue of Harvard 
 College, I am not able to find a single name of a 
 corporator, for more than half a century, which 
 is not associated with one sect in religion, and 
 with one party in politics. I may be mistaken ; 
 but out of the last thirty-three corporators, who 
 have been appointed during the present century, 
 I do not see a name that is not connected with 
 the Unitarian sect, in religion, and the Federal 
 and Whig parties, in politics. I must say, Sir, 
 
63d day.] 
 
 HARVARD COLLEGE. 
 
 255 
 
 Thursday,] 
 
 WILSON. 
 
 [July 21st 
 
 that it seems to me exceedingly strange, that 
 the corporators of that institution an institution 
 founded by the Commonwealth incorporated 
 into the Constitution with the injunction that 
 the government should foster and cherish it 
 should so manage it, that one religous sect, and 
 one political organization, should alone be repre 
 sented in that corporation. The corporators 
 have the control of the university they fill all 
 vacancies in their number, that happen by death 
 or otherwise. For fifty years, in spite of the re 
 monstrances of all other religious sects, and of all 
 other political organizations, they have continued 
 to fill up the board of corporators with men of 
 their own creed and political faith. I put it to 
 the gentleman from Boston I put it to the mem 
 bers of the Convention to say, if this is an evidence 
 of liberality an evidence of keeping along with 
 the sentiments, and opinions of the people ? 
 
 Farthermore, during a long series of years, the 
 permanent overseers of the institution have near 
 ly all been of one political faith, of one religious 
 creed. In 1851, the legislature, under the lead 
 of a distinguished gentleman, (General Gushing,) 
 passed an act reorganizing the board of overseers. 
 
 At that time, there were thirty-one permanent 
 overseers, of whom, twenty- seven were of one 
 political party, and twenty- five, of one religious 
 sect. By the provisions of the act of 1851, it 
 was made the duty of the legislature, in joint bal 
 lot, to choose the overseers, and by the legislature 
 of 1852, ten were accordingly chosen. The men 
 who, for years, had complained of the exclusive- 
 ness of the corporators and overseers of the uni 
 versity, having then the power, determined to act 
 up to their professions, and to set an example, 
 which they hoped future legislatures would imi 
 tate. A meeting was called in the Senate- Cham 
 ber of Whigs, Democrats, and Free Democrats. 
 Over that caucus of the members of three parties, 
 I had the honor to preside ; and I can bear witness 
 to the desire expressed on all sides, to select men 
 of learning and ability, without regard to parties, 
 or sects. The delegate from Boston, (Mr. Gray,) 
 a devoted friend of the university, was present, 
 and he can tell you, Sir, that the meeting was 
 unanimous in the sentiment, that men of learning 
 and talent, of all sects and parties, should be 
 selected. Ten gentlemen were nominated, three 
 Whigs, three Free Democrats, and four Demo 
 crats, and the various religious denominations 
 were represented; the Unitarians having three, 
 although they had thirty-one, out of the existing 
 thirty-seven corporators and overseers. The two 
 branches of the legislature, went into convention, 
 and the persons nominated, were elected without 
 any opposition whatever. The men who had for 
 
 years, justly complained of the policy by which 
 nearly all the religious denominations were kept 
 out of the corporation and board of overseers, 
 thus set to future legislatures a glorious example 
 of liberality, which, if followed, will cause all 
 parties and sects to be represented in the board 
 of overseers, by their most gifted and competent 
 men an example, which, if imitated by future 
 legislatures, and by the corporators, will restore 
 to the university, the affectionate regards of the 
 whole people, lost to some extent, by fifty years 
 of sectarian and political exclusiveness and illib- 
 erality. 
 
 By the provisions of the act of 1851, it became 
 the duty of the legislature of 1853, to elect ten 
 overseers. Day after day, no action was taken 
 towards the performance of this duty. Efforts 
 were made by gentlemen, who were anxious to 
 follow the example of the legislature of 1852, and 
 select persons of all sects and parties, to induce 
 the leading members of the majority to hold a 
 caucus with the minority, for the nomination of 
 candidates. Mr. President : I know that these 
 efforts were made but they were made in vain. 
 Under the pressing influences of men outside of 
 the legislature, men who claim to be the exclu 
 sive friends of the university, the political ma 
 jority of the legislature of 1853, went into a party 
 caucus, and nominated ten candidates, eight of 
 whom were of their own political faith. One 
 political party, that gave more than a fourth of 
 the votes of the State, at the last election, was 
 entirely excluded from the list of candidates. 
 This is the way the political majority of the leg 
 islature of 1853, responded to the example of 
 liberality, set by the legislature of 1852. Sir, I 
 assert what I know to be true, that this act of 
 partisan exclusiveness, was performed under the 
 influences of the men, in, and out of the legisla 
 ture, who for years, have justified the exclusive- 
 ness and illiberality which have prevailed in the 
 corporation and board of overseers. 
 
 Mr. HUNTINGTON, of Northampton, (inter 
 rupting). I wish to inquire of the gentleman 
 from Natick, whether he intends to charge upon 
 Harvard College, the action of a political party, 
 here, last winter ? 
 
 Mr. WILSON. I will tell the gentleman 
 from Northampton precisely what I mean. There 
 is a class of men in, and about the city of Boston, 
 who seem to think that they were born to guard, 
 guide, govern, direct and control, Harvard Col 
 lege. With the cry of " No party ! No sect ! " 
 upon their lips, they have ever evinced the spirit 
 of partisan and sectarian bigotry, intolerance, 
 and exclusiveness. These men strongly objected 
 to the act of 1851, but they acquiesced in it, 
 
256 
 
 HARVARD COLLEGE. 
 
 [63d day. 
 
 Thursday,] 
 
 WILSON. 
 
 [July 21st. 
 
 because they could not help themselves. Last 
 winter, knowing that there were men here whom 
 they could use, they came here, and used these 
 men to effect their purpose. 
 
 Mr. HUNTIXGTON. I hope the gentleman 
 from Natick, does not mean to charge the acts of 
 that party, upon the corporators of the college. 
 
 Mr. HILLARD, (in his seat). Or on the city 
 of Boston. 
 
 Mr. WILSON. I do not, Sir, mean to charge it 
 directly, or indirectly* upon the corporators of 
 that institution, upon the president of that institu 
 tion, or upon the overseers of that institution. I 
 charge it upon a certain class of individuals, who 
 seem to think that they own the institution, pres 
 ident, corporators, overseers, and all a class of 
 individuals who assume it to be their mission to 
 keep Harvard College from the influences of the 
 outside barbarians. I would not, if I could, take 
 Harvard College from one sect of religionists, and 
 place it under the control of another sect. I would 
 not take it from the control of one political party, 
 and place it under the control of another politi 
 cal party. I would introduce into its govern 
 ment men of all religious sects and of all political 
 parties, men of genius and knowledge; men 
 devoted to the cause of sound learning and litera 
 ture ; men of liberal ideas ; men who would 
 bring that institution, founded by our fathers 
 in their days of weakness, abreast of the pro 
 gressive march of the age, and within the circle of 
 popular sympathy. 
 
 Mr. President : In 1850, Francis Bo wen, editor 
 of the North American Review, was nominated 
 Professor of History by the corporators of Har 
 vard College. On the 6th day of February, 1851, 
 his nomination came up for confirmation before 
 the board of overseers in the Senate-Chamber. 
 A majority of the board of overseers of that year, 
 believed that he entertained sentiments and opin 
 ions which unfitted him to be a teacher of his 
 tory in that university, or an v where else in 
 America, and he was rejected ignominiously re 
 jected rejected for sentiments and opinions that 
 disqualified him to be the teacher of American 
 youth ; and rejected, also, for the historical igno 
 rance he had shown, for the perversions, mis 
 quotations, and blunders he had made in defend 
 ing his obnoxious sentiments and opinions. 
 
 Sir, I ask the gentleman from Boston, (Mr. 
 Lothrop,) if the nomination of Francis Bo wen to 
 the Professorship of History, by the corporation 
 of Harvard College, in 1850, was an evidence of 
 the desire of the men who control that institu 
 tion, to keep it along with the wants of the peo 
 ple, and the spirit of the age ? Are such senti 
 ments and opinions as Bowen has expressed 
 
 for years through the North American Revieic, 
 such sentiments and opinions as fit him to teach 
 the young men of Massachusetts, and of the 
 country? Are such historical mistakes, blun 
 ders, and perversions, as he has exhibited in his 
 Hungarian controversy, evidences of the qualifi 
 cations to teach the young men of Harvard ? Is 
 such dishonesty as he has shown in garbling his 
 torical authorities, an evidence of fitness for the 
 chair of the Professorship of History in the oldest 
 university of the country ? Is such a temper as 
 he has manifested in the controversies growing 
 out of his historical discussions, an evidence of his 
 fitness of his impartiality ? His sentiments, 
 opinions, historical ignorance, mistakes, perver 
 sions, blunders, plagiarisms, and garbling of 
 authorities, were not unknown to the corporators 
 when his name, in January, 1851, was submitted 
 to the board of overseers. When, on the 6th of 
 February, his nomination came up for confirma 
 tion, they were there not to withdraw the nomi 
 nation, in obedience to the almost united voice of 
 the American press and the American people, who 
 loathed and abhorred his sentiments but they, 
 and the peculiar friends of the college were there, 
 to sustain the man whom the voice of the people 
 had pronounced unfit to be the teacher of Ameri 
 can youth. And, Sir, when the majority of the 
 board of overseers had rejected their nomination, 
 that board of corporators, sustained by the self- 
 constituted friends of the college, seized the first 
 accidental opportunity that turned up, to place 
 that man in the chair of the Professorship of 
 Moral Philosophy. 
 
 These men knew Bowen s sentiments ; they 
 knew he had been proved ignorant of the subjects 
 he professed to understand ; they knew he had 
 been convicted of dishonesty in garbling, pervert 
 ing, and misquoting historical authorities ; they 
 knew that the public, with a voice approaching 
 unanimity, demanded his rejection ; yet they 
 pressed his nomination, and when that nomina 
 tion was rejected, they seized the first opportunity 
 to obtain a snap-judgment for him, and placed 
 him in a professor s chair. Does the member 
 from Boston, (Mr. Lothrop,) think this an evi 
 dence of liberality of a desire to keep along with 
 popular opinion ? 
 
 Mr. President : The men who have thus, in 
 defiance of the popular voice, sustained Francis 
 Bowen, cannot plead ignorance of his sentiments 
 and opinions. For several years he has edited 
 the North American Review a journal which 
 claims to be the leading literary organ of the 
 country; but which, in comparison with the 
 English Reviews, in ability, learning, and schol 
 arship, is something like a comparison between a 
 
63d day.] 
 
 HARVARD COLLEGE. 
 
 257 
 
 Thursday,] 
 
 WILSON. 
 
 [July 21st. 
 
 Cnpe Cod fishing-smack and a line- of- battle ship. 
 Through the columns of this journal, for years, 
 he has avowed sentiments and opinions which 
 show that whatever passes through his mind is 
 perverted that it is impossible for him to com 
 prehend the true relations of events, or to give a 
 truthful and philosophic view of the events of 
 history in the old world or in the new of the 
 events of the past, or of the events of the present 
 day. Narrow, bigoted, intolerant, he and the 
 class of which he is the head, have converted the 
 North American Review once graced by the 
 genius and learning of Edward Everett, and the 
 ripe scholarship and comprehensive views of 
 Alexander H. Everett ; a journal once presided 
 over by that liberal and true-hearted scholar, 
 John G. Palfrey ; by Jared Sparks, who has done 
 more for American history than any other man 
 in the country ; and by other eminent men, who 
 made the Review worthy of the country and of its 
 rising literature he, and the class of which he is 
 the head, have converted that Review into a nar 
 row, intolerant, bigoted organ of that conserva 
 tism which shrinks from everything progressive, 
 at home or abroad. Could the spirit of William 
 Gifford who battled with such ferocious vigor 
 and ability through the London Quarterly Review, 
 against the spirit of progress, against the rights 
 of the many and for the exclusive privileges of the 
 few come back to earth, he would be delighted 
 with its tone of fanatical conservatism, if he did 
 not feel utter contempt for its want of power, 
 vigor, learning, and ability. Through the col 
 umns of that journal, Francis Boweii has poured 
 out his slanders and libels upon the great leaders 
 of European Republicanism. Men illustrious for 
 genius, ability, learning, eloquence, and self-sac 
 rificing patriotism men who have perilled all 
 for the cause of republicanism ; men who have 
 been driven into exile for their devotion to popu 
 lar rights are sneered at, libelled, and slander 
 ed, by this Professor of History this teacher of 
 Moral Philosophy through the pages of his 
 journal. 
 
 When the reaction of 1850 overran Europe 
 when the high hopes excited by the popular rev 
 olutions of 1848 were buried in the graves and 
 dungeons of the martyrs of freedom, quenched in 
 the blood of the people ; when the voice of free 
 dom was heard only in the murmurs of the 
 down-trodden masses, or in the sad accents of 
 their exiled leaders ; when Hungary went down 
 before the armed intervention of Russia ; when 
 the hopes of Italy fell before the soldiers of Louis 
 Napoleon ; when the hopes of the friends of re 
 publicanism in France, Italy, Germany, Hun 
 gary, and on all the continent had failed ; when 
 
 the prisons were crowded with patriots ; when 
 banishment was the sad fate of some of the no 
 blest men of the age ; when Kossuth was lan 
 guishing in his Turkish exile Francis Bowen 
 placed the North American Review on the side of 
 the oppressor, and falsified and garbled even the 
 oppressor s historical authorities, in order to blast 
 the names of the champions of freedom. When 
 Kossuth was in a Turkish prison, Francis Bowen 
 sneeringly called him " a renegade," " a fanatic 
 and ultraist," " a demagogue and radical of the 
 lowest stamp." Such were the epithets applied 
 to one whom so many now here have welcomed 
 to this Commonwealth, where he won all hearts 
 by his noble qualities of mind and character. 
 Mazzini, Garibaldi, and the Italian patriots, are 
 denounced as "conspirators" and "brigands." 
 And, Sir, this man this libeller of European 
 republicanism this narrow, bigoted advocate of 
 a conservatism that shrinks from all change, is 
 the man selected by the corporators of Harvard 
 College to teach the young men of that University 
 history and moral philosophy ! 
 
 Mr. President : while this Convention has been 
 in session, another article has appeared in that 
 Review^ which has met the sternest rebuke of the 
 press of the country. This article is in perfect 
 consistency with its general tone and character. 
 I hold this Professor of Moral Philosophy per 
 sonally responsible for every line and sentence of 
 that article. He is the editor of the Revieiv, the 
 articles in which appear without the names of the 
 writers. He is responsible to the literary public, 
 to the country, and the world, for its articles. 
 No matter who he employs, whose brains he 
 taxes, whether he gets some one here, or whether 
 he purloins his articles from French absolutist 
 writers without giving any credit, he is morally 
 and legally responsible for what appears in that 
 journal. The New York Commercial Advertiser, 
 a journal of the conservative school, which has 
 heretofore sustained the North American Review, 
 condemns the article in the most pointed manner. 
 Says the Commercial : 
 
 " The July number of that periodical contains 
 an article entitled France, England, and Ameri 
 ca, from which we must strongly arid earnestly 
 dissent, as utterly unworthy of a writer living in a 
 republic, and professedly entertaining republican 
 opinions. If the North American Review s con 
 servatism leads to the conclusions broached in the 
 article under notice, we judge it to be high time 
 that its publication office be removed from Boston 
 to Paris, Vienna, or St. Petersburg. 
 
 " The general principles laid down at the com 
 mencement of the above quotation, the entire 
 tone of the article in question, and the offensive 
 and contumelious epithets heaped upon the friends 
 
258 
 
 HARVARD COLLEGE. 
 
 [63d day. 
 
 Thursday,] 
 
 WILSON. 
 
 [July 21st. 
 
 of republicanism upon the continent of Europe, 
 betray the writer s secret dislike of republican in 
 stitutions, and his heart-felt admiration of abso 
 lutism. Not the writer, however, but the North 
 American Review is to be held responsible for the 
 publication and circulation of such sentiments ; 
 and much as we have hitherto respected that 
 periodical for its conservative tone and manly but 
 courteous independence, we are constrained now 
 to say, that if such are hereafter to be its teach 
 ings, it will no longer be a fit instructor for the 
 people of the United States, and ought to be re 
 pudiated by every American citizen." 
 
 The Boston Evening Transcript quotes these re 
 marks with approbation. Says the Transcript : 
 
 " We notice with pleasure that a journal of the 
 high character and ability of the New York Com 
 mercial Advertiser, administers a severe rebuke to 
 the editor of the North American Review for the 
 anti-republican sentiments expressed in the article 
 on France, England, and America, in the 
 July number. We believe the Commercial Ad 
 vertiser expresses the almost universal voice of 
 the public upon this question ; for, however much 
 persons may differ upon affairs of domestic policy 
 which relate to the government, we think that 
 few can be found to sympathize with the tor (j ism 
 of the North American JRevic^v." 
 
 The New York Tribune, whose sympathies are 
 on the side of freedom at home and abroad, no 
 tices the Commercial Advertiser s rebuke of Bo wen 
 in the following language : 
 
 " The Commercial Advertiser is mildly shocked 
 by an article in the last North American Review, 
 justifying the usurpation of Louis Napoleon, 
 effected, as it was, through perjury, treason, and 
 wholesale murder ; declaring him the lawful 
 heir of an empire ; denouncing the republicans 
 of France as an insignificant faction composed of 
 a few poets and theorists, four or five journalists, 
 and one or two thousand ruffians ! and asserting 
 that The coup d etat of Louis Napoleon should 
 have been a matter of congratulation to good citi 
 zens everywhere, and that The dynasty of Na 
 poleon, restored at last to its natural place in the 
 affections of the French people, ought to be cor 
 dially recognized and supported by the active 
 sympathies of the country. " 
 
 " How came the Commercial to have opened its 
 eyes so tardily? When that infamous Revieiv 
 was industriously and unscrupulously engaged 
 in lying down the patriots of Hungary, and de 
 filing their green graves with its venom, we can 
 not remember that the Commercial devoted any 
 considerable space to an exposure and reprobation 
 of the palpable falsehoods it profusely vomited 
 through issue after issue. When a Whig board 
 of overseers, reversing the just action of its Coa 
 lition predecessor, rewarded this base successor of 
 Benedict Arnold with the Professorship of Phi 
 losophy in the State s University, we heard no 
 whisper of remonstrance from the Commercial. 
 Then why not let the creature earn another in 
 
 stalment of despots gold, red with the blood of 
 martyred republicans, as quietly as before?" 
 
 I commend, Mr. President, this language of the 
 Tribune to the consideration of the gentleman 
 from Boston, (Mr. Hillard,) who charged us the 
 other day with the crime of proscription for re 
 jecting his nomination for the Professorship of 
 History, " thereby," in the words of Bowen, 
 " despoiling him and his family of their daily 
 bread." I commend this language of the Whig 
 Transcript, Commercial Advertiser, and Tribune, 
 especially to gentlemen who last winter placed in 
 the board of overseers persons willing to aid in 
 confirming the man who had once been justly 
 rejected as unfit to be the teacher of the young 
 men of the country. 
 
 I have said, Mr. President, that Franc s Bo wen, 
 in his articles in the North American Review, on 
 " The War of Races," and on the Hungarian 
 question, had exhibited historical ignorance ; that 
 he had misstated, misquoted, and garbled histor 
 ical authorities. In reply to the charge made 
 by the gentleman from Boston, (Mr. Hillard,) 
 that he had been proscribed, in 1851, for his 
 opinions, I took occasion to say that he was re 
 jected, not alone for his opinions, but for the his 
 torical ignorance he had manifested in supporting 
 his opinions. The member from Danvers (Mr. 
 Braman) travelled out of his line of argument, 
 the other day, to say that this was a bold declar 
 ation for me to make. A bold declaration for me 
 to make ! 
 
 Sir, here and now I repeat the declaration. 
 Here and now on the floor of this Convention, 
 which has enrolled in its list of members the gen 
 tleman from Boston, (Mr. Hayward,) the gen 
 tlemen from Roxbury, (Mr. Lowell and Mr. 
 Putnam,) three of the seven corporators of the 
 university, the two learned and distinguished pro 
 fessors of the law school of the university, (Mr. 
 Parker and Mr. Greenleaf,) and the gentlemen 
 from Boston, (Mr. Lothrop and Mr. Hillard,) 
 members of the board of overseers of the uni 
 versity I renew and repeat the declaration that 
 Francis Bowen was rejected in 1851 from the 
 Professorship of History for his sentiments ; for 
 his historical ignorance, and for misstating, mis 
 quoting, and garbling historical authorities. 
 Here and now I proceed to establish the truth of 
 this declaration by authorities that cannot be 
 questioned here or elsewhere. 
 
 In January, 1850, Francis Bowen s first article 
 011 " The War of Races " appeared in the North 
 American Review ; in April, 1850, his second ar 
 ticle was published. It is said, Sir, that these 
 articles secured his appointment of Professor of 
 History by the corporators of Harvard University. 
 
63d day.] 
 
 HARVARD COLLEGE. 
 
 259 
 
 Thursday,] 
 
 WILSON. 
 
 [July 21st. 
 
 This may or may not be so. A distinguished 
 literary gentleman of Cambridge is said to have 
 remarked that Mr. Bowen fell into eight histori 
 cal blunders in his articles on the Hungarian ques 
 tion, for which he was made Professor of History 
 that in defending his blunders he told eight 
 falsehoods, for which he was made Professor of 
 Moral Philosophy. [Laughter.] Of course, Sir, 
 I do not vouch for the literal accuracy of this 
 criticism of the poet and scholar to whom I allude ; 
 but, really, the witticism gives a not very incor 
 rect idea of the character of these appointments. 
 
 Whatever may have been the reasons of the 
 corporators for his nomination, the opinions which 
 unfitted him to be the teacher of Amercan youth 
 had been published when it was made ; and when 
 his name was submitted in 1851 to the overseers, 
 his historical blunders, mistakes, misquotations, 
 and plagiarisms, had been exposed. His articles 
 were severely criticized in various quarters by 
 the presses of Boston, New York, and Washing 
 ton by journals of every shade of political opin 
 ion. They were almost universally condemned 
 by the press of the country, so far as it saw fit to 
 notice them at all. Conducting at the time a pub 
 lic journal in this city, I had an opportunity to 
 know something of the opinions of the press on 
 the subject. My friend from Concord, (Mr. 
 Hazewell,) a gentleman of vast historical acquire 
 ments a sort of walking encyclopedia of histori 
 cal facts through the columns of the Boston 
 Times, had exposed the ignorance, perversions, 
 and blunders of the author of these articles. The 
 Evening Transcript edited by Epes Sargent, a 
 gentleman of literary reputation had severely 
 criticized them much to the annoyance of Mr. 
 Bowen and his little coterie of " mutual admira 
 tion," friends. The New York Evening Post 
 edited by William C. Bryant, one of the first, if 
 not the first, of living American poets, a scholar 
 and man of genius who comprehends the spirit of 
 free institutions had also condemned the senti 
 ments and exposed the errors of these articles. 
 The New York Tribune conducted by Greeley, 
 Dana, Pvipley, Taylor, and others, combining an 
 amount of talent and culture unsurpassed, if 
 equalled, in the press of this country had like 
 wise criticized and exposed Mr. Bowen s histori 
 cal blunders, mistakes, and misrepresentations. 
 The Washington Republic and other leading 
 journals, condemned, not only the sentiments and 
 opinions avowed in those North American articles, 
 but they showed that the writer pretended to 
 knowledge he did not possess, and that he did 
 not deal honestly by the authors he pretended to 
 cite. 
 
 But the most thorough reply to Mr. Bowen ap 
 
 peared in the Christian Examiner of May and 
 November, 1850, from the pen of Mrs. Mary 
 Lowell Putnam, of Roxbury. Mrs. Putnam is a 
 lady of distinguished ability and learning, whose 
 rare knowledge of the languages and literature of 
 Eastern Europe, gave her peculiar facilities for 
 such a controversy. The member from Roxbury, 
 (Mr. Putnam,) himself a member of the corpora 
 tion of the university, and the learned editor of 
 the Christian Examiner, can tell you, Sir, that 
 Mrs. Putnam is a lady of eminent learning, and 
 better fitted to treat the topics discussed by her 
 than any other person in the country. Mr. Web 
 ster, at the congressional banquet to Kossuth, 
 quoted her as the highest American authority on 
 the history of Hungary. 
 
 Well, Sir, in the Christian Examiner, Mrs. 
 Putnam proved, in a manner entirely satisfactory 
 to every one who read her reply, that Bowen s 
 articles were a tissue of historical blunders, of 
 perversions, of falsifications, and of plagiarisms. 
 She demonstrated that he had pretended to 
 knowledge on the subject he did not possess. She 
 demonstrated that he had deliberately misquoted 
 the authorities on which he pretended to base his 
 articles, and had perverted them by omissions to 
 such an extent, and in such a manner, as to make 
 them appear to say just the reverse of what they 
 really meant. She showed that his first article 
 was taken almost wholly from the Revue des Deux 
 Mondes, a French magazine, conducted by men 
 hostile to freedom and democratic institutions 
 whose statements and arguments he had pervert 
 ed in a most outrageous manner in order to make 
 out a case against Hungary and in favor of Aus 
 tria. He had placed at the head of his article the 
 work of Degerando, a reliable French writer on 
 Hungary. Mrs. Putnam showed that he had not 
 used that work at all in the article, and that 
 " there is not," to use her language, " a statement 
 of fact or opinion in the article which can be at 
 tributed to Degerando ; and that the greater part 
 of it is in direct contradiction to the statements of 
 that author." Mr. Robert Carter, of Cambridge, 
 who has published a pamphlet upon this contro 
 versy, states that of the sixty pages of Bowen s 
 first article, fifty are translated, without acknowl 
 edgment, from the partisan French magazine to 
 which I have referred. Mrs. Putnam proves that 
 in his zeal to vindicate his anti-Hungarian views 
 he went beyond the French writers he plagiarized, 
 so " that" to use her own words, " there is hardly 
 a sentence in which an error is not either ex 
 pressed or implied." 
 
 One or two instances of Bowen s perversions 
 will be sufficient to show the character of the 
 articles, which, it is said, secured his nomination 
 
260 
 
 HARVARD COLLEGE. 
 
 [63d day. 
 
 Thursday,] 
 
 WILSON. 
 
 [July 21st. 
 
 to the Professorship of History. In giving an 
 account of Kossuth, he translates, in his first 
 article, without acknowledgment, from the French 
 magazine, passing it off as his own until he arrives 
 at a passage in which the French writer says that 
 Kossuth is " a democrat of the new revolutionary 
 school, who will seek to get rid of the nobility 
 when he shall have got rid of Austria," and that 
 he "has not feared to overthrow the whole 
 political and social state of his country, to realize 
 dreams of universal equality, more chimerical in 
 Hungary than anywhere else." This passage 
 Bo wen is too dishonest to plagiarize. It will not 
 answer his purpose. So he omits it and inserts a 
 piece of his own composition, in which Kossuth 
 is accused of being an aristocrat, whose object was 
 to preserve the feudal privileges of the nobility 
 and to maintain the aristocratic supremacy of the 
 Magyar race ! Such is the bitter hostility of 
 Bowen to the Hungarian cause, to Kossuth and 
 his associates, that he will not plagiarize what 
 the French writers have said in favor of the Hun 
 garians, although he is not ashamed to steal their 
 slanders upon Hungary and its patriotic defenders. 
 In another case, in order to throw discredit upon 
 the government of Kossuth, he pretends to quote 
 from a German work on the history of Hungary ; 
 while in reality, as Mrs. Putnam shows, the quo 
 tation is not to be found in the German work, 
 but is a mere extract from an anonymous article 
 in the London Athenceum. And these are not rare 
 instances at variance with the general character of 
 his articles. I might, if I had time, quote several 
 instances to prove his ignorance of the historical 
 subjects discussed by him, and his perversions of 
 the authorities he pretends to quote. I will read 
 what Mrs. Putnam says in the Christian Exami 
 ner, of the first of his articles : 
 
 " We are reluctantly compelled to affirm that 
 there is no portion of the article on the War of 
 Races, on which the reader can safely rely. We 
 do not exaggerate, and we believe that all those 
 persons who have an acquaintance with the history 
 of Hungary, and who have read the article in the 
 North American, will sustain us, when we say 
 that there is hardly a sentence in this article in 
 which an error is not either expressed or implied ; 
 and in many portions of it error is so interwoven 
 with error that the baffled critic turns from the 
 task of refutation as from the entrance to an inex 
 tricable labyrinth. We are disposed to believe 
 that the absence of any formal and labored confu 
 tation of the article on the War of Races to 
 which absence the author appeals as a proof of its 
 invulnerability may be attributed to the hercu 
 lean labor which the task of correcting all the 
 errors contained in this historical essay seemed to 
 involve, and the great length to which such a 
 confutation must be extended, if the task were 
 thoroughly executed. These errors pervade every 
 
 part of the article, and are almost as numerous in 
 that portion which relates to those periods of 
 Hungarian history which are most familiar to the 
 general reader, as in those whose investigation 
 requires a certain degree of research." 
 
 This description is fully justified by the errors 
 she exposed in her article in the Examiner. 
 
 Sir, before Mrs. Putnam s reply appeared, a 
 reply to the North American Review had been 
 published in New York, from the pen of Count 
 Gurowski, a Polish nobleman of great learning 
 and ability, who is profoundly acquainted with 
 the affairs of Eastern Europe, on the history of 
 which he has published several volumes in 
 French and German. Few men in the new world 
 or the old are better read in European affairs. 
 You, Mr. President, (Mr. Sumner,) can bear tes 
 timony to his vast acquirements and profound 
 knowledge of European history. He is an impar 
 tial critic, for he is no partisan of the Hungarians 
 and no friend to Kossuth. He says of Bowen s 
 first and principal article : 
 
 " It is a thick and dark forest of errors in his 
 torical, or rather unhistorical quotations, as well 
 as in reasoning. Almost every line requires 
 rectification. Almost all motives assigned to the 
 actions of individuals, as well as to the mass of 
 the people in Vienna, in Hungary, and in the 
 Sclavonian countries, are put in a false light, and 
 denote, by the quoted French authorities, perfect 
 ignorance or perfect bad faith. As most of the 
 facts are misrepresented, or shown in the falsest 
 possible light, so almost all the deductions are at 
 least erroneous ; and it cannot be otherwise, as a 
 disfigured fact very naturally produces the most 
 false conclusions ; and the number of these is 
 infinite, so as to render their rectification impos 
 sible." 
 
 Such is the opinion expressed by a critic friendly 
 to Mr. Bowen for Count Gurowski, at that time, 
 supposed that the Cambridge professor was de 
 ceived and misled by the French magazine writers. 
 
 Smarting under Mrs. Putnam s exposure of his 
 gross ignorance, falsifications and misquotations, 
 he came out in two rejoinders in the Boston Daily 
 Advertiser. They were scandalously abusive of 
 Mrs. Putnam, accusing her of " vanity," of 
 "hardihood and recklessness" of "profound 
 ignorance of history and every other subject 
 except a knowledge of the Magyar language " 
 and lastly, of having " deliberately forged histori 
 cal statements in order to damage his reputation 
 and deprive him of office." His language towards 
 her throughout his reply was unmanly and dis 
 gracefully unworthy of the office which he held. 
 I suppose he thought Mrs. Putnam had travelled 
 out of her woman s sphere, and that he might, as 
 he did, sneeringly question her claim to the au- 
 
63d day.] 
 
 HARVARD COLLEGE. 
 
 261 
 
 Thursday,] 
 
 WILSON. 
 
 [July 21st. 
 
 thorship of the article. He did not, however, Sir, 
 descend low enough to call her Mr. Putnam. To 
 the member from Danvers, (Mr. Braman,) was 
 reserved the high honor of originating that feeble 
 , sneer at a woman. It is probable that the tone 
 and temper exhibited towards Mrs. Putnam by 
 Bowen, in his replies, may have won for him the 
 admiration and support of the member from Dan 
 vers. " A fellow feeling makes us wondrous 
 kind." Bowen will doubtless be highly gratified 
 to learn that there is another man in Massachu 
 settsand he a member of this Convention 
 capable of offering an insult to a woman. 
 
 Bowen, in his reply to Mrs. Putnam, attempted 
 to defend himself by gross perversions and mis 
 quotations of her language, but I have not time 
 to quote these perversions and misquotations. 
 There were eight points in the ancient history of 
 Hungary, on which she had exposed his igno 
 rance, and upon these he attempted a defence. I 
 hold in my hand a review of that defence, from 
 the pen of Mr. Robert Carter, a gentleman of 
 great historical research and ability. These arti 
 cles, from the pen of Mr. Carter, were first pub 
 lished in the Boston Atlas, the leading Whig 
 journal of Massachusetts at that time, under the 
 charge of my friend from Boston, (Mr. Schouler,) 
 who, to his honor be it said, never allowed his 
 columns to be desecrated by defences of European 
 despotism, or libels upon European republicans. 
 Mr. Carter clearly demonstrates, that in his eight 
 points, Mr. Bowen was mistaken, and that in de 
 fending them, he has been guilty of the most 
 shameful garbling of historical works, and of al 
 most equally shameful ignorance of historical 
 facts, with which, at least, every Professor of his 
 tory in the civilized world ought to be acquainted. 
 I will give but one example of the character of 
 this portion of Mr. Bowen s reply. He had stat 
 ed in his article that the Turks were expelled from 
 Hungary by John Sobieski, King of Poland, in 
 1683. Mrs. Putnam pointed out that he was 
 mistaken that they were expelled by Prince 
 Eugene, in 1718, thirty-five years later. Mr. 
 Bowen, in reply, maintained that he was right, 
 and quoted, in proof, a sentence from the first 
 volume of McCulloch s Universal Gazetteer, in 
 which it is said, (speaking of the Hungarian 
 nobles,) " So great was their antipathy to the 
 Austrian yoke, that in 1683 they rose, with Te- 
 keli at their head, and called upon the Turks to 
 relieve them from servitude. Austria, however, 
 succeeded by the help of John Sobieski and Prince 
 Eugene, in expelling the Turks from these coun 
 tries," &c. This was as far as Mr. Bowen thought 
 it prudent to quote. He omitted the conclusion 
 of the sentence, which reads thus: " Austria, 
 
 however, succeeded by the help of John Sobieski 
 and Prince Eugene, in expelling the Turks from 
 these countries, and they were finally secured to 
 it by the treaties of Carlowitz and Passarowitz, 
 in 1718." 
 
 " The character of this transaction," says Mr. 
 Carter, " is easily understood. Mr. Bowen has a 
 controversv with Mrs. Putnam about the date of 
 an important event in history. He states one 
 year as the date, and she states another. He finds 
 in McCulloch s Universal Gazetteer, a passage in 
 which both dates are mentioned the date for 
 which Mrs. Putnam contends, being given as that 
 of the event in question, while the other is intro 
 duced as the date of a totally different event. Mr. 
 Bowen quotes that portion of the passage which 
 contains the date for which he was contending, 
 and stopping at a comma, suppresses the sentence 
 which proves the truth of Mrs. Putnam s posi 
 tion ! " 
 
 Mr. Bowen subsequently copied his reply from 
 the Daily Advertiser into the North American Re 
 view for January, 1851. Sometime in the pre 
 vious month, Mr. Carter, in the Atlas, had pointed 
 out his garbling of McCulloch. Mr. Bowen ac 
 cordingly withdrew the quotation, and explained 
 its withdrawal, by saying that it had been acci 
 dentally substituted by " a mistake of his copyist," 
 for another passage from the second volume of 
 McCulloch. That is to say, Mr. Bowen s aman 
 uensis accidentally copied a passage from the first 
 volume of McCulloch instead of a passage from 
 the second a very likely mistake, which, it 
 seems, Mr. Bowen did not discover when he read 
 the proof, nor until some weeks after, when it 
 was pointed out by Mr. Carter, in the Atlas. 
 
 The passage from the second volume, which 
 Mr. Bowen says he meant originally to quote, 
 reads thus : [Speaking of Turkey under Soly- 
 man the Magnificent.] 
 
 " At this period, the Turkish empire was un 
 questionably the most powerful in the world. 
 Nor had this mighty power even then reached its 
 greatest height. Solyman was succeeded by other 
 able princes, and the Ottoman arms continued to 
 maintain their ascendancy over those of Christen 
 dom, until, in 1683, thefamous John Sobieski, King 
 of Poland, totally defeated the army employed in 
 the siege of Vienna. This event marked the era 
 of their decline." 
 
 Now there is here nothing whatever about Hun 
 gary, and nothing that throws light on the date 
 of the expulsion of the Turks from that country. 
 It is difficult to conceive for what purpose it was 
 quoted, except to fill an inconvenient gap. Let 
 me, however, ask the attention of the Convention 
 to the whole of the passage, as it appears in Mc 
 Culloch, and not as Mr. Bowen has published it. 
 
262 
 
 HARVARD COLLEGE. 
 
 [63d day. 
 
 Thursday,] 
 
 WILSON GREENE. 
 
 [July 21st. 
 
 The point, it will be recollected, is, whether the 
 Turks were expelled from Hungary in 1683, by 
 Sobieski, as Mr. Bowen asserts, or in 1718, by 
 Prince Eugene, as Mrs. Putnam maintained. 
 Here is what McCulloch says : 
 
 " The Ottoman arms continued to maintain 
 their ascendancy over those of Christendom until, 
 in 1683, the famous Sobieski, king of Poland, 
 totally defeated the army employed in the siege of 
 Vienna. This event marked the era of their de 
 cline." [Thus far Mr. Bowen quoted and then 
 stopped for a very good reason. The next sentence 
 says :] " For a while they continued to oppose the 
 Austrians and Hungarians with doubtful fortune 
 and various success ; but the victories of Prince 
 Eugene gave a decisive superiority to the Chris 
 tians." Vol. ii. p. 977. 
 
 Sir, these are merely examples which I have 
 selected for their brevity out of scores of cases. 
 There is scarcely a quotation in his articles which 
 is not garbled so as to pervert the sense of the 
 author. Mr. Carter says, after a thorough exam 
 ination and analysis of his articles : " I do not be 
 lieve there can be found elsewhere in the English 
 language in the same compass, so many blunders, 
 so many falsehoods, so much literary dishonesty." 
 
 Mr. President : On the 6th of February, 18<51, 
 when the overseers of Harvard College assembled 
 in the Senate- Chamber to act upon Mr. Bo wen s 
 nomination for Professor of History, the knowl 
 edge of these things, brought forward and proved 
 as they were by persons of eminent ability and 
 learning, and to that day aye, to this day un 
 answered by Bowen or his friends, convinced a 
 majority of its overseers that duty to the literary 
 character of the country, to the reputation and 
 welfare of the university, demanded that they 
 should vote against his confirmation. 
 
 His sentiments and opinions, in the judgment 
 of a majority of the board of overseers, unfitted 
 him to be the teacher of American youth. Those 
 sentiments better fitted him to be Professor of 
 History at Vienna, or St. Petersburg, than at 
 Cambridge. Persons of rare learning and un 
 questioned ability, had proved him to be ignorant 
 of the historical subjects he pretended to be mas 
 ter of, and that he had misquoted, garbled and 
 misstated the authorities upon which he professed 
 to base his opinions. The member from Danvers 
 may question the ability of the members of the 
 majority of the board of overseers, in 1851, to 
 decide upon the fitness of Mr. Bowen, for the 
 Professorship of History. But of the ability and 
 intelligence of the members of that board, I need 
 not here speak. Twenty-two of them, I think, 
 are members of this Convention, and when I say 
 that the President of this Convention, (Mr. 
 
 Banks,}- the member for Berlin, (Gov. Bout well,) 
 the member from Bernardston, (Lieut. Gov. 
 Cushman,) the member for Erving, (Mr. Gris- 
 wold,) the member from Worcester, (Mr. Davis,) 
 the member from Springfield, (Mr. Beach,) the 
 member for Abington, (Mr. Keyes,) and other 
 gentlemen I cannot stop to designate, were mem 
 bers of that board of overseers, I am sure no 
 one will question their ability to judge of the fit 
 ness of Francis Bowen for the Professorship of 
 History. If the member from Danvers were 
 present, I would say to him, that these gentlemen 
 were quite as well informed, in regard to Mr. 
 Bowen s qualifications, at the time of his rejec 
 tion, as were the corporators at the time of his 
 nomination. 
 
 That act of the majority of the board of over 
 seers on the 6th of February, 1851, received the 
 approving plaudits of the people of Massachu 
 setts ; and, indeed, of the whole country, without 
 distinction of sect or party, except a little coterie of 
 "mutual admiration " friends in and about this 
 city, and that small class of conservatives, whose 
 bigoted and blind fanaticism makes them sympa 
 thize with the privileged few everywhere, and 
 renders them the milignant enemies of liberal 
 ideas and liberal men alike in the Old World and 
 in the New. 
 
 About the time of Bowen s rejection, he raised the 
 cry that " a grand crusade of the Coalized Demo 
 cratic and Free Soil parties has been invoked, that 
 they might obtain possession of the government of 
 the State, for the express purpose of depriving him 
 of an honorable appointment, exclusively literary 
 and educational in its character, which he held, 
 and thereby of despoiling him and his family of 
 their daily bread." The Coalition, I will venture 
 to say, is ready to take whatever responsibility 
 may belong to the deed. And, if the gentleman 
 from Boston, or the member from Danvers, con 
 sider him a victim of the Coalition ; if they wish 
 to take him upon their shoulders, or to put him 
 on the shoulders of their party, they are welcome 
 to the honor of the burden, and still more wel 
 come to its weight. 
 
 Mr. GREENE, of Brookfield. I would like 
 to say that if we go on with this debate, we shall 
 evidently occupy the whole day to-morrow upon 
 it ; and as it is desirable that we should close the 
 session of this Convention some time this sum 
 mer, I move the previous question, and I appeal 
 to the patriotism of gentlemen present to sustain it. 
 
 The demand for the previous question was 
 sustained. 
 
 The question was then taken on the proposition 
 to strike out the words " hereafter granted " and 
 it was rejected. 
 
63d day.] HARVARD COLLEGE. 263 
 
 Thursday,] LIVERMORE BIRD NAYSON YEAS NAYS ABSENT. [July 21st. 
 
 The PRESIDENT. The question now is on 
 
 Goulding, Jason Phelps, Charles 
 
 the final passage of the resolution. 
 Mr. LIVERMOKE, of Cambridge. I move a 
 reconsideration of the vote by which the yeas 
 
 Green, Jabez Phinney, Silvaiius B. 
 Greene, William B. Pierce, Henry 
 Griswold, Josiah W. Pomroy, Jeremiah 
 Griswold, Whiting Rawson, Silas 
 
 and nays were ordered on the final passage. I 
 
 Hallett, B. F. Rice, David 
 
 think there is no necessity for the yeas and nays. 
 
 Hapgood, Seth Richards, Luther 
 
 Mr. BIRD, of Walpole. I move that the Con- 
 
 Harmon, Phineas Richardson, Daniel 
 
 ventioii adjourn. 
 
 Heath, Ezra 2d, Richardson, Samuel H. 
 
 [Loud cries of " No !" " No !" " No !"] 
 
 Hood, George Ring, Elkanah, Jr. 
 Howland, Abraham H. Rogers, John 
 
 Mr. NAYSON. I submit that the previous 
 
 Hoyt, Henry K. Ross, David, S. 
 
 question having been ordered, a motion to ad 
 
 KnoAvlton, J. S. C. Royce, James C. 
 
 journ is not in order. 
 
 Knox, Albert Schouler, William 
 
 The PRESIDENT. The motion to adjourn is 
 
 Ladd, Gardner P. Simonds, John W. 
 
 always in order. 
 Mr. NAYSON. The uniform practice, both 
 
 Langdon, Wilber C. Smith, Matthew 
 Little, Otis Sprague, Melzar 
 Loomis, E. Justin Spooner, Samuel W. 
 
 in this body as in the legislature, has been, that 
 
 Marble, William P. Stevens, Granville 
 
 when the main question has been ordered to be 
 
 Merritt, Simeon Stiles, Gideon 
 
 put, the motion to adjourn has been ruled out of 
 
 Monroe, James I,. Suraner, Charles 
 
 order. 
 
 Morton, Elbridge G. Sumner, Increase 
 
 Mr. BIRD. In order to settle any difficulty 
 
 Morton, William S. Tilton, Horatio W. 
 Nash, Hiram Wallis, Freeland 
 
 in that respect, I will withdraw the motion to 
 
 Nayson, Jonathan Walker, Amasa 
 
 adjourn. 
 
 Newman, Charles Ward, Andrew H. 
 
 The question now recurred on the motion to 
 
 Osgood, Charles W^arner, Marshal 
 
 reconsider the vote by which the yeas and nays 
 were ordered. The motion to reconsider was 
 
 Packer, E. Wing Weston, Gershom B. 
 Paine, Benjamin Wilson, Henrv 
 Parker, Adolphus G. Wood, Charles C. 
 
 agreed to. 
 
 Parsons, Samuel C. Wood, Otis 
 
 The question then being on the motion order 
 
 Partridge, John Wright, Ezekiel 
 
 ing the yeas and nays, on a division, they were 
 
 Pemiiman, John 
 
 ordered ayes, 125 ; nays, 35. 
 
 
 The yeas and nays were then taken, and resulted 
 yeas, 121 ; navs, 28 as follows : 
 
 NAYS. 
 
 Adams, Benjamin P. Huntington, Charles P. 
 
 7 * * 
 
 Aldrich, P. Emory Kellogg, Giles C. 
 
 
 Allen, Joel C. Kendall, Isaac 
 
 YEAS. 
 
 Ball, George S. Knight, Hiram 
 
 Allen, James B. Cole, Sumner 
 Allen, Parsons Conkey, Ithamar 
 Allis, Josiah Crittenden, Simeon 
 Andrews, Robert Cross, Joseph W. 
 Austin, George Cummings, Joseph 
 Baker, Hillel Cushman, Henry W. 
 Bancroft, Alpheus Cushman, Thomas 
 Bates, Moses, Jr. Dana, Richard IL, Jr. 
 Beach, Erasmus D. Day, Gilman 
 Beal, John Dean, Silas 
 
 Brinlc) , Francis Livermore, Isaac 
 Bullock, Rufus Lothrop, Samuel K. 
 Bumpus, Cephas C. Parker, Joel 
 Crowell, Seth Parker, Samuel D. 
 Crowninshield, F. B. Putnam, George 
 Eames, Philip Heed, Sampson 
 Hayward, George Stevens, Charles G. 
 Hopkinson, Thomas Tyler, William 
 Houghton, Samuel Wetmore, Thomas 
 Hubbard, William J. White, George 
 
 Bennett, William, Jr. Deming, Elijah S. 
 
 ABSENT 
 
 Bliss, Gad O. Denton, Augustus 
 
 
 Boutwell, Geo. S. Duncan, Samuel 
 
 Abbott, Alfred A. Bates, Eliakim A. 
 
 Breed, Hiram N. Dunham, Bradish 
 
 Abbott, Josiah G. Beebe, James M. 
 
 Brown, Adolphus F. Easland, Peter 
 
 Adams, Shubael P. Bell, Luther V. 
 
 Brown, Hammond Eaton, Calvin D. 
 
 Allen, Charles Bennett, Zephaniah 
 
 Brown, Hiram C. Edwards, Elisha 
 
 Alley, John B. Bigelow, Edward B. 
 
 Brownell, Frederick Edwards, Samuel 
 
 Alvord, D. W. Bigelow, Jacob 
 
 Brownell, Joseph Fisk, Lyman 
 
 Appleton, William Bird, Francis W. 
 
 Buck, Asahel Fitch, Ezekiel W. 
 
 Aspinwall, William Bishop, Henry W. 
 
 Carter, Timothy W. Foster, Aaron 
 
 Atwood, David C. Blagden, George W. 
 
 Caruthers, William French, liodney 
 
 Ayres, Samuel Bliss, Willam C. 
 
 Case, Isaac French, Samuel 
 
 Ballard, Alvah Booth, William S. 
 
 Chapin, Chester W. Gale, Luther 
 
 Banks, Nathaniel?., Jr. Boutwell, Sewell 
 
 Childs, Josiah Gates, Elbridge 
 
 Barrows, Joseph Bradbury, Ebenezer 
 
 Churchill, J. McKean Gilbert, Wanton C. 
 
 Bartlett, Russel Bradford, William J. A, 
 
 Clark, Hansom Giles, Charles G. 
 
 Bartlett, Sidney Braman, Milton P. 
 
 Cole, Lansing J. Giles, Joel 
 
 Barrett, Marcus Brewster, Osmyn 
 
264 
 
 THE JUDICIARY. [64th day. 
 
 Friday,] 
 
 ABSENT. [July 22d. 
 
 Briggs, George N. 
 
 Greenleaf, Simon Moore, James M. Stevens, William 
 
 Bronson, Asa 
 
 Hartley, Samuel P. 
 
 Morey, George Stevenson, J. Thomas 
 
 Brown, Alpheus R. 
 Brown, Arteraas 
 
 Hale, Artemas 
 Hale, Nathan 
 
 Morss, Joseph B. Storrow, Charles S. 
 Morton, Marcus Strong, Alfred L. 
 
 Bryant, Patrick 
 
 Hall, Charles B. 
 
 Morton, Marcus, Jr. Stutson, William 
 
 Bullen, Amos II. 
 
 Hammond, A. B. 
 
 Nichols, William Swain, Alanson 
 
 Burlingamc, Anson 
 Butler, Benjamin F. 
 
 Hapgood, Lyman W. 
 Haskell, George 
 
 Norton, Alfred Taber, Isaac C. 
 Noyes, .Daniel Taft, Arnold 
 
 Cady, Henry 
 
 Haskins, William 
 
 Nute, Andrew T. Talbot, Thomas 
 
 Chandler, Araariah 
 
 Hathaway, Elnathan P. 
 
 Ober, Joseph E. Taylor, Ralph 
 
 Chap in, Daniel E. 
 
 Hawkes, Stephen E. 
 
 Oliver, Henry K. Thayer, Joseph 
 
 Chapin, Henry 
 
 Hayden, Isaac 
 
 Orcutt, Nathan Thayer, Willard, 2d 
 
 Choate, Rufus 
 
 Haze well, Charles C. 
 
 Orne, Benjamin S. Thomas, John W. 
 
 Clark, Henry 
 
 Heard, Charles 
 
 Paige, James W. Thompson, Charles 
 
 Clark, Salah 
 
 Henry, Samuel 
 
 Paine, Henry Tileston, Edmund P. 
 
 Clarke, Alpheus B. 
 
 Hersey, Henry 
 
 Park, John G. Tilton, Abraham 
 
 Clarke, Stillman 
 
 Hewes, James 
 
 Pan-is, Jonathan Tower, Ephraim 
 
 Cleverly, William 
 
 Hewes, William H. 
 
 Parsons, Thomas A. Train, Charles R. 
 
 Coggin, Jacob 
 
 Heywood, Levi 
 
 Payson, Thomas E. Turner, David 
 
 Cogswell, Nathaniel 
 
 Hillard, George S. 
 
 Peabody, George Turner, David P. 
 
 Cook, Charles E. 
 
 Hindsdale, William 
 
 Peabody, Nathaniel Tyler, John S. 
 
 Cooledge, Henry F. 
 
 Hobart, Aaron 
 
 Pease, Jeremiah, Jr. Underwood, Orison 
 
 Copeland, Benjamin F. 
 
 Hobart, Henry 
 
 Perkins, Daniel A. Upham, Charles W. 
 
 Crane, George B. 
 
 Hobbs, Edwin 
 
 Perkins, Jesse Upton, George B. 
 
 Cressv, Oliver S. 
 
 Holder, Nathaniel 
 
 Perkins, Jonathan C. Viles, Joel 
 
 Crockett, George W. 
 
 Hooper, Foster 
 
 Perkins, Noah C. Vinton, George A. 
 
 Crosby, Leander 
 
 Howard, Martin 
 
 Plunkett, William C. Walcott, Samuel B. 
 
 Curtis, Wilber 
 
 Hunt, Charles E. 
 
 Pool, James M. Wales, Bradford L. 
 
 Cutler, Simeon N. 
 
 Hunt, William 
 
 Powers, Peter Wallace, Frederick T. 
 
 Davis, Charles G. 
 
 Huntington, Asahel 
 
 Preston, Jonathan Walker, Samuel 
 
 Davis, Ebenezer 
 
 Huntington, George H. 
 
 Prince, F. O. Warner, Samuel, Jr. 
 
 Davis, Isaac 
 
 Hurlburt, Samuel A. 
 
 Putnam, John A. Waters, Asa H. 
 
 Davis, John 
 Davis, Itobert T. 
 
 Hurlbut, Moses C. 
 Hyde, Benjamin D. 
 
 Rantoul, Robert W r eeks, Cyrus 
 Read, James Wheeler, William F. 
 
 Davis, Solomon 
 
 Ide, Abijah M., Jr. 
 
 Richardson, Nathan White, Benjamin 
 
 Dawes, Henry L. 
 
 Jackson, Samuel 
 
 Rockwell, Julius Whitney, Daniel S. 
 
 Dehon, William 
 
 Jacobs, John 
 
 Rockwood, Joseph M. Whitney, James S. 
 
 Denison, Hiram S. 
 
 James, William 
 
 Sampson, George R. Wilbur, Daniel 
 
 DeWitt, Alexander 
 
 Jenkins, John 
 
 Sanderson, Amasa Wilbur, Joseph 
 
 Doane, James C. 
 
 Jenks, Samuel II. 
 
 Sanderson, Chester Wilder, Joel 
 
 Dorman, Moses 
 
 Johnson, John 
 
 Sargent, John Wilkins, John H. 
 
 Durgin, John M. 
 
 Kellogg, Martin R. 
 
 Sheldon, Luther Wilkinson, Ezra 
 
 Earle, John M. 
 
 Keyes, Edward L. 
 
 Sherman, Charles Williams, Henry 
 
 Easton, James, 2d 
 
 Kingman, Joseph 
 
 Sherril, John Williams, J. B. 
 
 Eaton, Lilley 
 
 Kimball, Joseph 
 
 Sikes, Chester Wilson, Milo 
 
 Ely, Homer 
 
 Kinsman, Henry W. 
 
 Simmons, Perez Wilson, Willard 
 
 Ely, Joseph M. 
 
 Knight, Jefferson 
 
 Sleeper, John S. Winn, Jonathan B. 
 
 Eustis, William T. 
 
 Knight, Joseph 
 
 Souther, John W r inslow, Levi M. 
 
 Farwell, A. G. 
 
 Knowlton, Charles L. 
 
 Stacy, Eben H. Wood, Natnaniel 
 
 Fay, Sullivan 
 
 Knowlton, William H. 
 
 Stetson, Caleb Wood, William H. 
 
 Fellows, James K. 
 
 Kuhn, George, H. 
 
 Stevens, Joseph L., Jr. Woods, Josiah B. 
 
 Fiske, Emery 
 Foster, Abram 
 
 Ladd, John S. 
 Lawrence, Luther 
 
 Absent and not voting, 270. 
 
 Fowle, Samuel 
 
 Lawton, Job G., Jr. 
 
 So the resolve was passed. 
 
 Fowler, Samuel P. 
 Freeman, James M. 
 
 Leland, Alden 
 Lincoln, Abishai 
 
 On motion by Mr. FRENCH, of New Bedford, 
 
 French, Charles A. 
 
 Lincoln, Frederic W., Jr. 
 
 at a quarter before seven o clock, 
 
 French, Charles H. 
 
 Littlefield, Tristram 
 
 The Convention adjourned until to-morrow 
 
 Frothingham, Rich d, Jr.Lord, Otis P. 
 
 morning at nine o clock. 
 
 Gardner, Henry J. 
 
 Loud, Samuel P. 
 
 
 Gardner, Johnson 
 
 Lowell, John A. 
 
 
 
 Gilbert, Washington 
 
 Marcy, Laban 
 
 
 Gooch, Daniel W. 
 
 Marvin, Abijah P. 
 
 FRIDAY, July 22, 1853. 
 
 Gooding, Leonard 
 Gould, Robert 
 
 Marvin, Theophilus R. 
 Mason, Charles 
 
 The Convention assembled pursuant to ad 
 
 Goulding, Dalton 
 
 Meader, Reuben 
 
 journment, and was called to order by the Presi 
 
 Graves John W. 
 
 Miller, Seth, Jr. 
 
 dent pro tempore, at nine o clock. 
 
 Gray, John C. 
 
 Mixter, Samuel Prayer by the Chaplain. 
 
64th day.] 
 
 LIMITATION OF DEBATE, &c. 
 
 265 
 
 Friday,] 
 
 TYLER HALLETT ASPIN WALL KNO WLTON BUTLER KINSMAN. [July 2 2d. 
 
 The journal of yesterday s proceedings was 
 read. 
 
 Order to Print. 
 
 The following order, submitted yesterday by 
 the gentleman from Pawtucket, (Mr. Tyler,) was 
 taken xip for consideration : 
 
 Ordered, That the Committee on Reporting 
 and Printing, be instructed to append to the pub 
 lished Debates, Poole s Statistical Yiew of the 
 Members of the Convention. 
 
 To which the following amendment had been 
 moved by Mr. Earle, of Worcester. Add the 
 following words : " with the amount received by 
 each for travel and attendance." 
 
 Mr. TYLER moved that the order be referred 
 to the Committee on Reporting and Printing the 
 Debates and Proceedings of the Convention. 
 
 The question on this motion was put by the 
 President, and declared to be decided in the 
 affirmative. 
 
 Mr. GRISWOLD, for Erving, demanded a 
 count. 
 
 Mr. EAMES, of Washington, said he thought 
 it would be better to adopt the amendment, before 
 sending the order to the Committee. 
 
 Mr. HALLETT. As one of the Committee, 
 to whom it is proposed to refer this order, I de 
 sire simply to make a suggestion. 
 
 Mr. ASPINWALL. I rise to a question of 
 order. I believe, Sir, no debate is permitted. 
 
 Mr. HALLETT. The gentleman is somewhat 
 premature with his point of order. I rose for 
 the purpose of moving that the order be laid 
 upon the table. I hope we shall have no more 
 printing, and no more expense of that sort. We 
 are already accumulating our expense for printing. 
 I move that it be laid upon the table. 
 
 The PRESIDENT. The question was put 
 on the motion of the gentleman from Pawtucket, 
 to refer the order to the Committee, and the Chair 
 decided that motion carried. The gentleman 
 for Erving has demanded a count. 
 
 Mr. GRISWOLD. I withdraw the demand. 
 
 Mr. KNO WLTON, of Worcester. I move to 
 strike out the word "instructed," so that it shall 
 be a mere matter of inquiry. 
 
 The PRESIDENT. The order is merely in 
 the nature of inquiry, and is referred to the Com 
 mittee on Reporting and Printing. 
 
 Limitation of Debate. 
 
 Mr. BUTLER moved to take up from the table 
 the order submitted by the gentleman from Med- 
 way, (Mr. Brown,) in regard to the limitation of 
 debate. 
 
 The motion was agreed to. 
 
 18 8 
 
 The order was read as follows r 
 
 Ordered, That hereafter, no member, except 
 the chairmen of Committees, be allowed to speak 
 longer than fifteen minutes on any one subject, 
 without leave of the Convention. 
 
 Mr. Aspinwall, of Brookline, having on a pre 
 vious day moved to amend, by striking out the 
 words, " except chairmen of Committees." 
 
 Mr. WHITNEY, of Boylston. I would ask 
 if the chairmen of the several Committees have 
 made their final reports ? 
 
 Mr. BUTLER. If I understand the motion of 
 the gentleman from Brookline, it is to except the 
 chairmen of Committees. 
 
 The PRESIDENT. The gentleman from 
 Brookline has moved to strike out the words, 
 " except chairmen of Committees." 
 
 Mr. BUTLER. I can hardly agree to that 
 motion. 
 
 Mr. KINSMAN, of Newburyport. I ex 
 pressed my opinion the other day, with reference 
 to the passage of such an order as this, both on 
 grounds of common fairness, and in consequence 
 of the fact that some of the most important ques 
 tions we have to consider, are yet to be considered, 
 and I will state as an illustration, the mode in 
 which the amendments we agree to, shall be sub 
 mitted to the people. There appears to be a 
 difference of opinion on the subject, if we can 
 trust the declarations of gentlemen here, and 
 unquestionably that diversity of opinion must 
 lead to debate ; it ought to lead to debate, and 
 gentlemen ought to have an opportunity to dis 
 cuss it freely. There are some things so apparent, 
 that it is scarcely worth while to reason about 
 them; and the injustice of limiting the minority 
 to fifteen minutes, while the chairmen of Com 
 mittees all of whom are members of the majority 
 of the Convention are allowed one hour, is in 
 itself so clear, that it seems hardly worth while to 
 debate it. I shall not debate it. I rose simply to 
 call for the yeas and nays on the adoption of the 
 order. 
 
 The call for the yeas and nays was sustained 
 by ayes, 38 ; noes, 159 one-fifth of those voting- 
 being in favor thereof and the yeas and nays- 
 were ordered. 
 
 Mr. ASPINWALL, of Brookline. I suppose, 
 Sir, after the intimation of opinion by the gentle 
 man from Lowell, without the slightest reason 
 given for it, in order to convince and thus influ 
 ence this Convention, it is altogether useless for 
 me to say anything in favor of my amendment. 
 I suppose the gentleman practices upon the prin 
 ciple, that a nod is as good as a wink to a blind 
 horse, and that an intimation from him will carry 
 
2G6 
 
 LIMITATION OF DEBATE. 
 
 [64th day. 
 
 Friday,] 
 
 AsrixwALi, BUTLER ELY. 
 
 [July 22d. 
 
 the Convention to his side. I do not know how 
 it may be ; and whether true or not, I shall say 
 what I think ought to be the action of the Con 
 vention in regard to this matter. I disapprove, I 
 have always disapproved, whether I have been on 
 the side of the majority or the minority, of limit 
 ing debate. I have never, I believe, voted for 
 any such proposition as is now before the Con 
 vention. I have never moved the previous ques 
 tion. I have never seen any use in doing so. I 
 have never seen any good effect result from any 
 of these measures for cutting off debate ; but I 
 know the Convention is determined to do some- 
 thin 01 in that way ; they have already enacted the 
 half-hour rule, applying to all members except 
 chairmen of Committees. I regarded that as ex 
 ceedingly unjust. It has already, as every-body 
 has perceived, given to the majority of this body 
 the opportunity to have a fuller expression of 
 their views and opinions than is given to the mi 
 nority. It is giving them great power; they 
 have every means of arranging all matters to suit 
 themselves ; the right of coming into the Con 
 vention and explaining fully their views, of go 
 ing into all the argument and reasoning that they 
 may deem necessary in support of their measures ; 
 and then they have the po\ver of preventing the 
 minority from giving their reasons for opposing 
 those measures. The rule wag bad enough which 
 limited to half an hour the speeches of those op 
 posing the reports of the Committees, and gave to 
 gentlemen who advocated them, an hour ; but it 
 is a little worse now, for it is proposed to limit 
 the speeches of those opposing the adoption of 
 reports, to fifteen minutes, while the chairmen of 
 Committees are to be allowed an hour to present 
 their arguments in favor of such reports. Now, 
 I ask the Convention, whether this is just and 
 equal ; whether there is any propriety in the ma 
 jority assuming the power, as they undoubtedly 
 do, of giving themselves four times the right of 
 speech which they deal out to the minority ? If 
 they think so, they will have the privilege of de 
 claring it. I have assumed the privilege of enter 
 ing my protest against the injustice of such a 
 proceeding, and having done this, I shall trouble 
 the Convention no farther. 
 
 Mr. BUTLER, of Lowell. Sir, it is evident 
 what all this means. It is a favorite way when 
 occasionally a popinjay gets into the Convention, 
 if by chance any should, though whether they 
 do or not I do not mean to express an opinion 
 in which he endeavors to influence the action of 
 the Convention, by attempting to hold up some 
 one as doing that which he ought not to do, and 
 endeavoring to excite prejudice against an indi 
 vidual, and by that means to influence the action 
 
 of the Convention, which he can accomplish in 
 no other way. But certainly, Sir, the gentleman 
 from Brookline has no reason to complain. He 
 moved his amendment, and has had an opportu 
 nity to advocate its adoption. I merely stated 
 that I was opposed to it, and tbat was tortured 
 into the fact that I had expressed an opinion that 
 I control this Convention, simply for the purpose 
 of bringing about a change of action on the part 
 of the Convention, which could not be done by 
 argument. The next movement on the pro 
 gramme was, the gentleman from Newburyport 
 demanded the yeas and nays ; and thus gentlemen 
 who have no disposition to take up time them 
 selves, are compelled to see the time wasted by 
 taking the yeas and nays. Gentlemen who pro 
 fess to w r ish to do no wrong, but to discuss the 
 high principles involved in the questions that are 
 presented, choose to have an hour spent in taking 
 the yeas and nays. Very good. They have the 
 power ; let them create delay if they will. They 
 say they never saw any good arise from attempt 
 ing to cut off debate. It is true, there is little 
 gained by it ; because, when a factious rainority 
 choose to create delay, they are fruitful in expe 
 dients for that purpose, by dilatory motions, by 
 getting up and speaking to questions that are not 
 pertinent to the subject under consideration. 
 When they choose to take that course, of course 
 you cannot limit debate. There is no means of 
 suppressing faction in this world ; there never 
 has been, and probably never will be. 
 
 Sir, I do not propose to argue this question. 
 We have argued it sufficiently. The chairmen of 
 two Committees have had an opportunity to oc 
 cupy an hour each upon it. And if any gentle 
 man wishes to debate it, I will give up my por 
 tion of the time. I have no desire to say a word. 
 I do not, therefore, see any occasion for an attack 
 being made upon me ; but if it is made, perhaps 
 gentlemen will find that the time has gone past 
 when an attack can be made with impunity ; 
 that while I allow a sick man to attack me with 
 out a reply, I may have occasion to twist the 
 neck of some well man, if they do not let me 
 alone. 
 
 Mr. ELY, of Westfield. In view of the manner 
 in which debate has been carried on for the last 
 few days, I think the less we have of it the better ; 
 I therefore move the previous question. 
 
 Mr. ASPINWALL, of Brookline. I trust I 
 may be allowed to say a few words. 
 
 The PRESIDENT. The question is: Shall 
 the main question be now put. 
 
 The demand for the previous question was 
 seconded, and the main question ordered. 
 
 The question was then taken on the pending 
 
64th day.] 
 
 THE COUNCIL, dtc. 
 
 267 
 
 Friday,] 
 
 EARLE KEYES MORTON GRISWOLD CHURCHILL. 
 
 [July 22d. 
 
 amendment, viz. : that moved by the gentleman 
 from Brookline, (Mr. Aspiuwall,) to strike out 
 the words, " except chairmen of Committees," and 
 it was decided in the affirmative. 
 
 So the amendment was adopted. 
 
 Mr. EARLE, of Worcester. I wish to inquire 
 whether, if this order be adopted, it will require 
 a vote of two-thirds for its suspension ? 
 
 The PRESIDENT. The Chair is of opinion 
 that it is in the nature of a rule, and will require 
 two-thirds. 
 
 Mr. EARLE. If so, I am satisfied. 
 
 Mr. KEYES rose and addressed the Chair. 
 
 The PRESIDENT. Debate is not in order. 
 
 Mr. KEYES. I had no intention to debate. I 
 wish to ask if an amendment is in order ? 
 
 The PRESIDENT. It is not in order. 
 
 Mr. KEYES. I was going to move to strike 
 out the words, " without leave." 
 
 The PRESIDENT. No debate is in order. 
 
 A MEMBER. I wish to know what the 
 amended order will mean ? 
 
 The PRESIDENT. It is not for the Chair to 
 explain its meaning. The previous question still 
 applies, and the question now is on the adoption 
 of the order as amended. 
 
 The order, as amended, was adopted. 
 
 Amendments to the Constitution. 
 
 Mr. MORTON, of Taunton, moved that the 
 Convention resolve itself into Committee of the 
 Whole, for the purpose of considering the resolves 
 in relation to the mode of submitting to the peo 
 ple, for their approval or rejection, future amend 
 ments to the Constitution. 
 
 It is, said Mr. Morton, a subject of considerable 
 interest ; and it is of some consequence that it 
 should be disposed of as early as possible. 
 
 Mr. GRISWOLD, for Erving. Is the motion 
 debatable ? 
 
 The PRESIDENT. The Chair is of opinion 
 that debate may be entertained. 
 
 Mr. GRISWOLD. I hope that this motion 
 will prevail at this time. There are some subjects 
 on the Orders of the Day, that may be disposed 
 of in a short time, and they are matters which 
 ought not to be delayed. I trust we shall now 
 proceed to dispose of them. And I will say, 
 farther, that I suppose I know, in fact 
 
 Mr. BRIGGS, of Pittsfield. Is this motion 
 debatable ? 
 
 The PRESIDENT. The Chair is of opinion, 
 upon reflection, that it is not. 
 
 The question was taken on the motion of the 
 gentleman from Taunton, and it was decided in 
 the negative. 
 
 On motion of Mr. CUSHMAN, of Bernardston, 
 
 the Convention proceeded to the consideration of 
 the Orders of the Day, the first subject being 
 the resolves in relation to 
 
 The Council. 
 
 The question being upon their final passage. 
 
 Mr. CHURCHILL, of Milton. I rise to detain 
 the Convention but a single moment, for the pur 
 pose of proposing an amendment, which I do upon 
 consultation with many eminent and leading men 
 of the Convention, of all parties, whose approba 
 tion or assent to this proposition, I am happy to 
 say I have received. I respectfully ask the atten 
 tion of the Convention to this amendment while 
 I read it, that they will consider it for a moment, 
 and they will perceive that there can be no objec 
 tion to it, even if it has no great virtue in it. It 
 is to add an additional resolution, as follows : 
 
 Resolved, That it is expedient to amend the 
 Constitution as follows, to wit : The legislature 
 may provide by law that public notice shall be 
 given of all applications to the Governor and 
 Council, for the remission of the sentences of 
 persons imprisoned for crime. 
 
 It will be perceived that it is not intended, by 
 this amendment, to limit, or restrict, or impair, 
 in any way, the exercise of that power hereafter, 
 or to cast any reflection upon the manner in 
 which it has been, exercised heretofore. The 
 power to which that amendment refers is one of 
 the highest, most important, and most delicate 
 exercises of sovereignty in the Commonwealth. 
 It touches upon the life and liberty of the sub 
 ject. It reviews and reexamines the long and 
 expensive investigations of your courts, and may, 
 in proper cases, reverse their decisions. I do not 
 wish to open, in any way, the debate which has 
 already been had upon the subject of the Coun 
 cil. I do not suppose that the Convention desire 
 to open that debate, and therefore I shall not 
 give any lengthy reasons for this amendment. 
 A similar provision exists in the Constitution of 
 the State of New York ; and it is well, in calm 
 times in this Commonwealth, to adopt such rules 
 as will tend to our protection and safety in times 
 of excitement and danger ; for, although there 
 may not have been, hitherto, any abuse of the 
 pardoning power as to which gentlemen differ 
 widely we may have in this Commonwealth 
 such difficulties as have occurred in New York, 
 and Pennsylvania, and other States ; and, in 
 such case, this provision will enable the legisla 
 ture, in some manner to look after the exercise 
 of that power. It does not make the granting 
 of a pardon dependent upon the giving of notice, 
 but it simply allows the legislature, if it shall 
 
2G8 
 
 THE COUNCIL. 
 
 [64th day. 
 
 Friday,] 
 
 BOUTWELL GRISWOLD CHURCHILL WHITNEY LORD. 
 
 [July 22d. 
 
 see fit to do so, to legislate upon the matter of 
 notice for such applications. I believe that every 
 gentleman will see that this may be a useful and 
 practical amendment, and that there can be no 
 danger, whatever, in its adoption. 
 
 Mr. BOUTWELL, for Berlin. I wish to say, 
 only, that I entirely concur in the object of this 
 amendment, proposed by the gentleman from 
 Milton, (Mr. Churchill). I think it is a proper 
 one. It leaves the matter in this form : if at 
 any time the legislature shall see fit to declare, 
 by law, that public notice shall be given of the 
 intended application of convicts for a remission 
 of sentence, they may do so ; and I think that 
 no executive can object, under any circumstances, 
 to such notice. I hope, therefore, that the amend 
 ment may be adopted. 
 
 Mr. GRISWOLD, for Erving. I dare say, 
 that this amendment may pass ; and as it is to be 
 left with the legislature, it makes it less objec 
 tionable. I should be reluctant to disagree in a 
 matter of this sort, with the gentleman who has 
 just taken his seat ; but if I were a member of the 
 legislature, I should oppose such a proposition in 
 that body ; and, therefore, I think it my duty to 
 vote against it here. I suppose the object of the 
 amendment is to bring the government officers in 
 to oppose the pardon. 
 
 Mr. CHURCHILL. No such object is intend 
 ed. It is left to the legislature to provide for the 
 giving of such notice as they may see fit ; but it 
 is not to bring the government officers in to op 
 pose a pardon. 
 
 Mr. GUIS WOLD. Then I want to know 
 what the object is ? A convict has ordinarily a 
 hard enough chance. He is generally poor and 
 without means often without friends ; and it is 
 difficult enough for him to gain access to the 
 Council. I cannot, therefore, see any object in 
 this amendment, except to notify the government 
 officers that they may come in and oppose a par 
 don. It seems to me that it is well enough as it 
 is now, and that the chances are against the con 
 vict. I have not reflected upon the question, but 
 with my present views I shall oppose it. 
 
 Mr. BOUTWELL. If the Convention will 
 allow me, I will state a case within my own per 
 sonal experience which will satisfy gentlemen 
 that it is well enough that the public, and es 
 pecially the prosecuting officers and the judges, 
 should know that such application is made ; for 
 it necessarily happens that the hearings are very 
 much ex parte. No one will contend that a con 
 vict should be released without a just and proper 
 claim upon the clemency of the government. 
 Now, it happened in the case to which I refer, 
 that the Council recommended a convict to the 
 
 executive clemency. I wrote to the judge who 
 tried the case, and he furnished such information 
 as satisfied me that the pardoning power ought 
 not to be exercised. Now, it is not usually con 
 venient for the executive to go out of his way to 
 ascertain the facts which may be in the possession 
 of individuals, and which may not otherwise come 
 under his notice. 
 
 Mr. WHITNEY, of Boylston. I hope that 
 this amendment will not be adopted, because 1 
 see that it will open the whole question of par 
 doning and condemning criminals. I think the 
 reasons last given are sufficient to show us that it 
 does open this question. Here is a case where 
 the decision of the executive was determined by 
 facts coming from the officers of the law. This is 
 one case ; and may there not be a hundred cases 
 where a man may lose his pardon from the same 
 cause ? As the gentleman for Erving has said, 
 the chances are against the criminal ; and after a 
 man has had his trial they ought to leave him 
 alone with the pardoning power, and not with 
 the power of the law. Why should the law offi 
 cers intervene to prevent a pardon, if, after con 
 sideration by the pardoning power, the executive 
 should deem him worthy of a pardon ? They 
 have all the means of information that they ought 
 to* have, and therefore I am opposed to this amend 
 ment, because it opens up before the Convention 
 the whole question again. 
 
 Mr. LORD, of Salem. I think, Mr. Presi 
 dent, that there has really been sometimes in the 
 Council- Chamber a misapprehension as to what 
 the pardoning power is. I have been accustomed 
 to believe that a pardon implied that the person 
 pardoned had been guilty of some offence ; that 
 you cannot pardon an innocent man ; and I think 
 that all this discussion would have been avoided, 
 and the true theory of a pardon would have been 
 sustained, if we had made this provision, that no 
 pardon should be granted upon the ground that 
 the party suing for a pardon was wrongfully con 
 victed, but that it should be the duty of the legis 
 lature to provide a remedy in all such cases by a 
 judicial tribunal. 
 
 It seems to me that such a provision in the 
 Constitution as that would cover the entire diffi 
 culty. The Government and Council represent 
 the people just as much, and rather more than 
 the district-attorneys do. They represent the 
 public wholly upon this matter of pardon, and 
 the district- attorneys have nothing to do with 
 that, and have nothing to do with the question 
 whether a person ought to be forgiven. If a 
 person is to be pardoned, upon the ground that 
 he is not guilty, then the district- attorney has 
 something to say about it, and not otherwise. 
 
64th day.] 
 
 THE COUNCIL. 
 
 269 
 
 Friday,] 
 
 KEYES TRAIN. 
 
 [July 22d. 
 
 Therefore, it seems to me, that if we leave 
 the matter of clemency to the executive, who 
 represents the people of the Commonwealth, we 
 do well. If we provide that no pardon shall be 
 granted on the ground of a wrongful conviction, 
 we shall also do right, at the same time, to pro 
 vide that the legislature should make a proper 
 remedy for such cases. 
 
 Mr. KEYES, for Abington. I saw this amend 
 ment before it was offered, and I had one reason 
 for not opposing it. The other day, when the sub 
 ject was before the Convention, it did not seem to 
 me that there was any substantial ground presented 
 for any action in regard to the matter. Therefore, 
 I then opposed even what I should consider a 
 proper motion, on the ground that it might con 
 firm a false opinion which was abroad in the com 
 munity, viz. : that the Council were too lenient, and 
 too loose in their action, and that they have been 
 disposed to throw open the prison doors without 
 reason. It was on that ground alone that I op 
 posed the proposition then. Now, I do not want 
 to keep up the opposition, because if carried too 
 far, it might tend to confirm the opinion that 
 the Council wished to hide their acts, and felt 
 guilty, and were afraid of exposure. I do not 
 believe that ; there is no truth in it. As far as 
 this can be adopted on proper principles and for 
 proper purposes, I will not oppose it, because 
 any assistance the Council can obtain from either 
 side, is what they seek and desire, and such in 
 formation they have never sought to avoid. I 
 think the reasons of the gentleman from Salem 
 (Mr. Lord) are pretty important. This matter of 
 pardoning on the ground of a wrongful conviction 
 of the court, is right, because the courts may make 
 mistakes. Within the last twelve months, sen 
 tences have been passed by a judge of this Com 
 monwealth, upon two convicts, one being sen 
 tenced to the State Prison for three or four years, 
 and the other to the House of Correction for three 
 or four months ; whereupon the juries that tried 
 those cases were so thunderstruck at the dispro 
 portion of the sentences to the nature of the 
 crimes ; and believing that the one sent to the 
 State Prison should have gone to the House of 
 Correction, and the one sent to the House of Cor 
 rection, should have been sentenced to the State 
 Prison, that they went to the judge, and told him 
 if he did not reverse his sentences they would 
 make a noise about it. He did so. I could not 
 swear that this is so. I state it up.on hearsay, 
 and do not vouch for its accuracy ; but have 
 reason to believe the statement correct. From 
 such a case we see the necessity of the pardoning 
 power. 
 
 I rose simply to make this explanation. If the 
 
 Convention deem it, under the circumstances, 
 necessary to adopt this provision, from the fact 
 that it introduces a system by which farther in 
 formation can be gained, I do not see fit here 
 publicly to oppose it, though I think it is per 
 fectly unnecessary, as all the means necessary to 
 find out the facts of each case are, under the 
 present system, put in requisition. 
 
 Mr. TRAIN, of Framingham. Were I quite 
 sure of the feeling of the Convention, in regard 
 to this matter, I would not occupy one moment 
 of its time. But, as I am not quite sure, and 
 am a little afraid that the Convention may vote 
 down the amendment, I hope I may be pardoned 
 for making a few suggestions. If it were not a 
 foregone conclusion, I should be happy to aid in 
 lopping off and out of the Constitution, what I 
 consider a useless portion of the government of 
 the State, to wit : the Executive Council. But 
 that has gone by, and therefore I will not trouble 
 anybody with any views of mine upon that 
 point. But I believe this to be a matter of im 
 portance, because, notwithstanding the argument? 
 of my friend for Abington, (Mr. Iveyes,) and 
 those of other gentlemen who have addressed the 
 Convention heretofore, I believe that the pardon 
 ing power has been exercised in a manner most 
 prejudicial to the interest of the State. If gen 
 tlemen will look at the document which has been 
 furnished us, upon the motion of my friend from 
 Lowell, (Mr. Butler,) they will find that the 
 number of pardons granted for the last ten years, 
 averages nearly one for each week. Now, Sir, 
 either the pardoning power has been exercised in, 
 a manner unbecoming and improper, or else the 
 trial by jury is a mockery, and courts of justice a 
 farce ; because it cannot be true that it should be 
 the duty of jurors to convict, and courts to sen 
 tence, and the duty of the Governor and Council 
 to pardon, almost in the same breath. At this 
 very term of the court of common pleas, in the 
 county of Middlesex, I understand that they have 
 tried five individuals, who have been, tried and 
 sentenced before, within the last three years, and 
 who have been pardoned within, that time, and 
 come back again, to use the expressive language 
 of another gentleman, for the lawyers to have 
 another lick at. 
 
 Now, it is for the Commonwealth to protect the 
 interests of society, by taking care of those who 
 violate its laws, and, if you desire that the best 
 influence should be exercised upon society, you 
 should adopt two principles. In the first place 
 it should be settled, that conviction shall certain 
 ly follow the commission of a crime, and, in the 
 next place, that criminals should understand, 
 that as certainly as they are convicted, they shall 
 
270 
 
 THE COUNCIL. 
 
 [64th day. 
 
 Friday,] 
 
 TKAIN BRIGGS. 
 
 [July 22d. 
 
 serve out the time of their sentence. In this 
 \vay you have an influence exerted over that por 
 tion of society which commit crimes ; but, under 
 the sickly sentimentality which some gentlemen 
 in this Commonwealth cultivate, the man who 
 commits a crime is a man of rather more import 
 ance than an honest man. These are general 
 principles which ought to be laid down. 
 
 Nobody believes but that the Council and Gov 
 ernor undertake to exercise their powers in good 
 faith, but the trouble has been that they have 
 granted pardons in cases where notice has not 
 been given to the court, and the prosecuting 
 officers, who were familiar with all the circum 
 stances of the case ; that they have granted par 
 dons upon hearsay testimony, without the for 
 mality of a trial, without the solemnity which is 
 thrown around a judicial investigation, and have 
 allowed their feelings to be wrought upon, until 
 they believed the applicant had been wrongfully 
 punished, or that he would be a better man, if 
 discharged. We all desire to have the pardoning 
 power preserved, but we desire to have it proper 
 ly exercised. The amendment contemplates that 
 when an application shall be made for the exer 
 cise of the pardoning power, the legislature, if it 
 shall find it necessary, shall require the pardon 
 ing power to give notice to those who may be 
 supposed to be better acquainted with the case, 
 and from whom they can obtain more reliable 
 information than they can possibly get from the 
 friends of the criminal, or from any other source. 
 
 Let me say here, that I do not concur in the 
 insinuations which have been thrown out here, 
 upon the manner in which the judges of the 
 courts perform their duties in passing sentences 
 upon criminals. As far as I know, the courts 
 have performed their duties faithfully, and have 
 found no obstacle but what has been thrown in 
 their way by the pardoning power. I know of 
 no State in which the law is administered more 
 faithfully and more justly than in Massachusetts. 
 The reformatory power in the courts, is exercised 
 more effectually and efficiently, and more regu 
 larly there than elsewhere. I hope the amend 
 ment will be adopted for the reasons I have sug 
 gested. 
 
 Mr. BRIGGS, of Pittsfield. I see no great 
 objection to this amendment, though I do not see 
 any necessity for it. If gentlemen apprehend so 
 much danger to the Commonwealth from the 
 exercise of the pardoning power, that some check 
 should be placed upon it, I should think it well 
 to confer that power upon the legislature, though 
 not for the reasons alleged by my friend who has 
 just set down. I do not concur in what seems 
 to be his intimation, that while the duties of the 
 
 courts are performed with a proper regard to the 
 public interests, the duties of the Council- Chamber 
 are not performed in that manner. I beg leave 
 to express my opinion as to the performance of 
 those duties, with one exception, to which it is 
 not proper for me to refer. I do not believe it 
 can be shown that during the whole history of 
 this government, there has been any abuse of the 
 pardoning power. I have no doubt that cases 
 occur frequently, from the imperfection of human 
 judgment and human affairs, in which the power 
 has been exercised where it ought not to have 
 been, but never under circumstances which tend 
 to show that that branch of the government 
 have had a disposition to, or that they have, in 
 fringed upon the duties of the courts, or inter 
 posed any obstacle to the carrying out the judg 
 ments of the judicial tribunals. There is no 
 motive for such a course in this world. Why, in 
 Heaven s name, should they do it ? Who are 
 those people who apply to them for pardon r They 
 come without friends, and without money. They 
 are poor and helpless. It has been already said 
 that their cases are frequently brought before the 
 executive by the officers of the prison. I wish 
 gentlemen, could see the records of the doings of 
 the pardoning power, and read the history of the 
 cases presented to them from time to time, and I 
 think they would somewhat change their opinions 
 upon this subject. But, says the gentleman, they 
 follow up suddenly, and frequently annul the 
 decisions of the court, and release convicts from 
 their judgments. Yes, Sir, they do ; but they 
 never do it, when in their judgment there is not 
 sufficient reason for interposing in that way. A 
 few days since, I heard of a case which occurred 
 in an adjoining county, and that is only one of 
 many of a similar character, though not exactly 
 like it. Some boys were arrested for petty 
 offences, and sent to the House of Correction, and 
 among those boys was one who was only eight 
 years of age. He was tried and sent to the House 
 of Correction without any notification to his pa 
 rents. There the poor little fellow was, moaning 
 and crying from morning till night, and wetting 
 his pillow with his tears, because he had been 
 taken from his parents and sent there. The case 
 was brought before the Council, by the keeper of 
 the House of Correction, and I understand the 
 pardoning power interposed. What kind of a 
 pardoning power would that be which would 
 not interpose under such circumstances ? It is 
 in such cases as these, of sentence to the House 
 of Correction, and in other cases where the time 
 of sentence has nearly expired, or when the 
 health of the prisoner is failing, that the pardon 
 ing power is most frequently exercised. It is, in 
 
64th day.] 
 
 THE COUNCIL. 
 
 271 
 
 Friday,] 
 
 BRIGGS LORD FRENCH KEYES. 
 
 [July 22d, 
 
 these latter cases, exceeding proper, that the 
 criminal should have some little daylight break 
 in upon his heart, giving him some reason to 
 feel that there is one portion of the government 
 of the Commonwealth which regards him with 
 humanity and kindness, and which is willing to 
 remit the few remaining days of his imprison 
 ment. Who can tell how much influence such 
 a course may have upon the convict who has been 
 confined for months and years. They go out 
 feeling that the government is not an incorrigible 
 tyrant. 
 
 It will be found, on consulting the records, that 
 there are many more cases where the courts and 
 prosecuting officers are consulted, than gentlemen 
 are aware of. The case mentioned by the gentle 
 man for Berlin, (Mr. Boutwell,) is one of that 
 kind. In looking over a few cases the other day, 
 though with a different object in view, I found 
 that about one-half of them were cases where 
 the counsel was consulted. One of those cases 
 was that of a man who was sentenced from the 
 county of Franklin, to the State Prison for life. 
 The report states that at the time of the convic 
 tion, the government attorney assured him that 
 he would aid him if he behaved himself, and 
 when an application for pardon was made by a 
 number of citizens, the prosecuting attorney did 
 interpose, with other citizens, in his favor. 
 
 As I said before, and repeat now, I do not be 
 lieve that it can be found, in looking over the 
 history of the Executive Council, that any abuse 
 has existed in the exercise of this power. That 
 there have been mistakes, I have no doubt at all. 
 
 The gentleman from Salem, (Mr. Lord,) has 
 alluded to a class of cases, where persons have 
 been wrongfully convicted. Now, by law, there 
 is a limit to the time within which a person must 
 apply for a new trial, and when that time has 
 expired, there is no remedy for a person in pris 
 on under sentence. What should the executive 
 do in such cases, when it is shown beyond reason 
 able doubt that the person has been wrongfully 
 convicted, and the day for moving a new trial has 
 passed by ? It would be more than injustice for 
 the executive to refuse to interfere. It would be 
 inhuman ! 
 
 Mr. LOUD, of Salem. I ask the gentleman 
 from Pittsfield to allow me to say, that a part of 
 my suggestion was that the Governor and Council 
 should not pardon, upon the ground of erroneous 
 conviction, but that the legislature should extend 
 the time within which a new trial may be granted, 
 in order to provide a remedy for such cases. 
 
 Mr. BRIGGS. I entirely concur in the gen 
 tleman s suggestion, but I submit, that until the 
 legislature make provision for extending the time 
 
 for granting a new trial, the Governor and Council 
 should be allowed, technically, to pardon such 
 persons. Until the legislature make that provis 
 ion this will be the only remedy which can be 
 exercised. 
 
 Mr. FRENCH, of Berkley. I hope I shall 
 not be considered out of order if I remind the 
 Convention that we are to adjourn to-morrow, 
 for I believe we have voted to do so. 
 
 SEVERAL MEMBERS. O, no ! 
 
 Mr. FRENCH. Then I am mistaken; but 
 that was the Report of the Committee appointed 
 upon that subject. But, Sir, if we are going to 
 take up the time of the Convention in debating 
 questions of minor importance for the mover 
 of this amendment himself says it is not a matter 
 of much importance I think we had better send 
 home for our winter clothes, [a laugh,] for we 
 shall not be likely to get through before winter. 
 
 Now, it seems to me that this pardoning power 
 must be deposited with somebody it must be 
 left with some branch of the government, and I 
 know of no better power to leave it with, than 
 where it has been left heretofore. I think the 
 Governor, with the advice of his Council, will be 
 able to decide correctly upon all matters of pardon. 
 I know it is the nature of man to be fallible, and 
 that in some instances even with all the wisdom 
 of the Council, the Governor may make mistakes. 
 
 But, Sir, I do not desire to discuss this ques 
 tion. I want that the question should be dis 
 posed of, in some way, without farther debate. I 
 hope the amendment will be rejected. 
 
 [Cries of " Question ! " " Question ! "] 
 
 Mr. KEYES, for Abington, addressed the 
 President, and was recognized. 
 
 Mr. ADAMS, of Lowell. I rise to a question 
 of order. The gentleman for Abington has spo 
 ken two or three times upon this question, and 
 upon that ground I claim the floor. 
 
 Mr. KEYES. I will yield the floor to the 
 gentleman, with pleasure, if he desires to speak. 
 
 Mr. ADAMS. I have no wish to consume 
 more of the time of the Convention upon this 
 subject. I move the previous question. 
 
 Mr. KEYES. I was legitimately entitled to 
 the floor, but having before spoken upon this 
 subject, I yielded it, with great pleasure, to the 
 gentleman from Lowell to speak, but not to move 
 the previous question, and I do not understand 
 that the gentleman, under the Rules, can take 
 the floor from me for any such purpose. 
 
 The PRESIDENT. The delegate from Lowell, 
 (Mr. Adams,) and the delegate for Abington, 
 (Mr. Keyes,) rose simultaneously, but, inasmuch 
 as the gentleman for Abington had tried two or 
 three times to get the floor, the Chair awarded it 
 
272 
 
 THE COUNCIL. 
 
 [64th day. 
 
 Friday,] 
 
 LOHD KEYES. 
 
 [July 22d. 
 
 to him. The gentleman from Lowell then claimed 
 the floor upon the ground that the gentleman for 
 Abington had already spoken upon the subject 
 under consideration. Supposing that the gentle 
 man from Lowell wished to speak upon the 
 question, the Chair, therefore, awarded the floor 
 to him, upon that ground, as he was compelled to 
 do under the Rules of the Convention, and the 
 gentleman then moved the previous question. 
 The Chair believes that is a correct statement of 
 the case. 
 
 Mr. LORD, of Salem. Before the President 
 decides, definitely, the question of order, I desire 
 to call his attention to the 23d Rule, which is the 
 following : 
 
 " No person shall speak more than twice upon 
 one question, without first obtaining leave of 
 the Convention ; nor more than once until other 
 members who have not spoken, shall speak, if 
 they desire it." 
 
 Under this Rule, any member who has once 
 spoken, must yield to another, if he desires to 
 speak, but I do not suppose he is obliged to yield 
 to him to make a motion. 
 
 The PRESIDENT. The Chair will again state, 
 that he supposed the delegate from Lowell had a 
 right to claim the floor if he wished to speak, the 
 gentleman for Abington having once spoken upon 
 the question. He, therefore, awarded it to the 
 gentleman from Lowell, supposing that he wished 
 to address the Convention ; he, however, is con 
 strained, under the circumstances, to rule the 
 motion made by that gentleman to be out of order. 
 
 Mr. KEYES. I wish to say only one word. 
 I did not intend to have troubled the Convention 
 again upon this subject. I was very anxious that 
 this question should be disposed of without de 
 bate ; and although this is a subject in which I 
 have taken some interest, I have expressly avoided 
 saying anything which should elicit debate. 
 
 But the gentleman from Framingham, (Mr. 
 Train,) has seen fit to come out with one of the 
 same sort of speeches which we have heard not 
 only upon a former occasion during the debate on 
 this question, but which we have heard outside 
 of this body and such as I think, ought not to be 
 made anywhere. I can see no reason why the 
 gentleman should make such speeches, for I be 
 lieve him personally to be one of the kindest 
 hearted men in the Convention, and I can only 
 account for it on the ground of the butcher busi 
 ness in which he has been engaged. I can think 
 of nothing else which should prompt him to rise 
 and make such speeches. 
 
 Sir, I undertake to say, that these prosecuting 
 officers and judges, whose business it is to convict 
 
 and sentence criminals, are not the proper men to 
 be applied to for opinions in relation to the pardon 
 of those convicts. Having once expressed their 
 opinions as to the nature of their guilt, they have 
 some pride in the matter. They do not like to 
 have their decisions reversed. If he is a judge 
 and has given his decision, upon a full knowledge 
 of the circumstances connected with the trial, 
 which has resulted in the incarceration of a man 
 in prison, he is not willing to turn round and say 
 that his sentence was too severe, and that the 
 convict should be liberated. It is the nature of 
 men to have faith in the cause they are obliged to 
 maintain. An illustration may be found in a 
 debating society, where a man taking the wrong 
 side of a question for the sake of argument, de 
 fends and discusses it until he ends in believing 
 that to be right, which, at the outset, he honestly 
 believed to be wrong. And so it is with advo 
 cates who argue against what they know to be 
 the plainest evidence ; they argue themselves into 
 the belief that what they are supporting is right. 
 
 Now, Sir, these very judges upon the bench, in 
 charging the jury, generally argue the question in 
 such a way as to indicate pretty clearly what 
 their opinions are in relation to the guilt or inno 
 cence of the accused, and in nine instances out of 
 ten, their opinions thus given, determine the ver 
 dict of the jury, when half the time any member 
 of the jury is as good a judge of what is justice 
 and equity as the judge himself. The idea that 
 judges never make mistakes is a false one. You 
 cannot go into any county court in the State, and 
 examine the decisions through a single term with 
 out finding great mistakes committed. There is 
 not much reason or common sense in many of 
 their sentences, and that every-body knows. I do 
 not mean to say that the judges mean to give 
 wrong decisions, but any man who sits upon the 
 bench feels differently at one time from what he 
 does at others. I have suffered from dyspepsia 
 long enough to know that sometimes a man may 
 feel as if he would strangle half the world, if he 
 could get them by the neck, [laughter,] and at 
 others, as if he would shower blessings on the 
 whole race. I believe the judges perform their 
 duties conscientiously, and as well as they are 
 able to, but they are not infallible. 
 
 But, as I said in the outset, it is no purpose of 
 mine to oppose this amendment. If people think 
 it is necessary, let them have it. But I cannot 
 subscribe to requiring these men, who, if not 
 hangmen, are only one remove from it, and who, 
 by means of their profession, have acquired to 
 some extent, the dispositions of butchers, to give 
 their opinions upon the propriety of exercising 
 the pardoning power. 
 
64th day.] 
 
 THE COUNCIL. 
 
 273 
 
 Friday,] 
 
 BATES UPTON BRIGGS. 
 
 [July 22d. 
 
 Mr. BATES, of Plymouth, When the discus 
 sion iirst commenced upon this question, I was in 
 favor of the amendment of the gentleman from 
 Milton, (Mr. Churchill). But when I heard the 
 argument of the gentleman from Framingham, 
 (Mr. Train,) I was opposed to it, inasmuch as it 
 put it upon the ground that the Council were a 
 set of scoundrels who were unfit for, or inca 
 pable of taking care of the interests of the State, 
 with regard to matters committed to them. But 
 I am opposed to continuing this debate farther. 
 It may be, if it were to continue, that arguments 
 might be presented which would lead me to vote 
 in favor of the amendment, and I therefore move 
 the previous question. 
 
 Mr. UPTON, of Boston. I have an amend 
 ment which I desire to offer, and I also desire to 
 occupy not more than two minutes in explaining 
 it. If the gentleman will withdraw his motion 
 for the previous question, I will renew it before 
 I set down. 
 
 Mr. BATES. With that understanding, I 
 withdraw my motion for the previous question. 
 
 Mr. UPTON. I move to strike out the second 
 resolution as it now stands. It is the following : 
 
 Resolved, That it is expedient so to amend the 
 Constitution as to provide that the record of the 
 proceedings of the Council shall always be subject 
 to public examination. 
 
 Now, Mr. President, one single word to explain 
 my object in making that motion. These reso 
 lutions provide that your Council shall sit in judg 
 ment upon criminals that is to say, the question 
 of pardon is to come before them. They sit in 
 public, but still the records of their proceedings, 
 in every case, are to be made subject to public 
 examination. 
 
 Now, Sir, in the case of an examination before 
 a jury, of a criminal offence, if there is any dif 
 ference of opinion among the jurors, where the 
 person is not convicted, the opinions of those ju 
 rors who were in favor of conviction are never 
 made public. Yet it is proposed to provide that 
 the proceedings of the Council shall not only 
 be open, but that the record of their proceedings 
 shall be kept open for public examination, so 
 that, if their is a difference of opinion among the 
 the councillors upon a question of pardon, any 
 one, from a personal or other motive, can go to 
 your Council- Chamber, and ascertain how each 
 councillor voted. Now, Sir, that is contrary to 
 the principles and spirit of our institutions. You 
 open the door for any person entertaining feelings 
 of hostility towards any particular councillor, to 
 carry them into effect, by ascertaining from the 
 record what were his votes in relation to applica 
 
 tions for pardon, and using those votes to secure 
 his own private ends. You open the door for re 
 venge, if you please. Why should the opinions of 
 jurors, as to the criminality of a person upon 
 whom they are called to decide, be kept from the 
 public, and the opinions of a councillor, who is 
 called upon to decide the same question, upon an 
 application for pardon, be made public ? 
 
 I hope the resolution will be stricken out ; and 
 now, in accordance with my promise, I move the 
 previous question. 
 
 The previous question was seconded, and the 
 main question ordered to be put. 
 
 Mr. BRIGGS, of Pittsfield. I do not wish to 
 say one word upon the question before the Con 
 vention ; but, having heard that I made an 
 erroneous statement in relation to one of the un 
 fortunate young men to whom I alluded when I 
 was before up, I wish, in justice to his friends, to 
 correct the statement. 
 
 The PRESIDENT. The previous question 
 having been ordered, the gentleman from Pitts- 
 field can only proceed by unanimous consent. 
 
 There was no objection made, and 
 
 Mr. BRIGGS proceeded. I alluded to a young 
 man by the name of Learned, in Worcester 
 County, who, upon the recommendation of many 
 of the citizens of that county, was pardoned ; and I 
 stated that he turned out to be unworthy, and that 
 he had since been tried and convicted for another 
 offence in the State of New York. 
 
 Sir.ce making that statement, a gentleman tells 
 me he has learned that the young man has, with 
 in a few days past, died in the State Prison in the 
 State of New York, but that before he died, 
 satisfactory evidence was produced, to show that 
 he was wrongfully convicted ; that the governor 
 of New York was satisfied of that fact, and sent 
 him a pardon ; but that that pardon reached the 
 prison-house two hours too late ; and that in his 
 dying moments the poor fellow protested his in 
 nocence of the offence for which he was con 
 victed. 
 
 Sir, that young man may have a mother, he 
 may have a sister, or some friend; who may see in 
 print, or in some other way learn, what I said in 
 relation to his case. I desire, therefore, to take it 
 all back, for of all things, I would not do injustice 
 to any human being placed in such a situation, or 
 wound the feelings of his friends. I understand 
 that the evidence was satisfactory that he was 
 wrongfully convicted. 
 
 The question was then taken on Mr. Churchill s 
 amendment, and there were ayes, 135 ; noes, 
 115. 
 
 So the amendment was adopted. 
 
 The question then recurring upon the motion 
 
274 PRESERVATION OF THE RECORDS, &c. [64th day. 
 
 Friday,] 
 
 HALLETT GRISWOLD. [July 22d. 
 
 of Mr. Upton, of Boston, to strike out the second 
 resolution, it was taken, and the motion was not 
 agreed to ayes, 97 ; noes, 164. 
 
 The PRESIDENT. The question now is upon 
 ordering the resolves, as amended, to their final 
 passage. 
 
 Mr. HALLETT, for Wilbraham. I move a 
 reconsideration of the vote whereby the previous 
 question was ordered. I desire to say one word 
 as a reason for so doing. 
 
 Mr. E D WARD S, of Southampton. I rise to a 
 point order. I would inquire of the Chair if it 
 is in order to move a reconsideration of the pre 
 vious question after we have proceeded under 
 the operation of that previous question and taken 
 votes ? 
 
 Mr. HALLETT. I withdraw my motion. 
 
 Mr. GRISWOLD, for Erving. There is one 
 vote taken here with which I am dissatisfied, and 
 I will venture to move a reconsideration of the 
 vote by which the amendment of the gentleman 
 from Milton (Mr. Churchill) was adopted. 
 
 Mr. SCHOULER, of Boston. I rise to a 
 question of order. My point of order is that 
 there cannot be a reconsideration now, after the 
 previous question is ordered. 
 
 The PRESIDENT. The Chair is of the 
 opinion that the motion to reconsider is not in 
 order ; that no motion to amend or reconsider 
 can be in order, the main question having been 
 ordered. 
 
 Mr. SCHOULER. The gentleman can move 
 a reconsideration after we have got through with 
 the resolves. 
 
 The PRESIDENT. The question now is 
 upon ordering the resolutions to their final pas 
 sage. 
 
 Mr. GRISWOLD. I had supposed that the 
 motion I made was in order ; but as it has been 
 ruled out of order, I call for a division of the 
 question. 
 
 The first resolve was then read, as follows : 
 
 Resolved, That eight councillors be elected by 
 by the people in single districts, each district to 
 consist of five contiguous senatorial districts. 
 
 The question was taken, and the resolution was 
 agreed to. 
 
 The second resolution was read, as follows : 
 
 Resolved, That it is expedient so to amend the 
 Constitution as to provide that the record of the 
 proceedings of the Council shall always be subject 
 to public examination. 
 
 The question was taken, and the resolve was 
 agreed to. 
 
 The third resolution was read, as follows : 
 
 Resolved, That it is expedient so to amend the 
 Constitution as to provide that no councillor, 
 during the time for which he shall be elected, 
 shall be appointed on any commission, or to any 
 place, for which he shall receive any compensa 
 tion whatever, other than that which he receives 
 as councillor. 
 
 The question was taken, and it was a: reed to. 
 The fourth resolution was read, as follows : 
 
 Resolved, That the legislature may provide by 
 law that public notice shall be given of all appli 
 cations to the Governor and Council for remission 
 of the sentence of persons imprisoned for crime. 
 
 The question was taken, and a division being 
 called for, there were ayes, 129 ; noes, 135. 
 
 So the resolution was not agreed to. 
 
 Mr. HALLETT, for Wilbraham. I rise for 
 the purpose of moving a reconsideration of the 
 vote just passed. 
 
 The PRESIDENT. The motion will go into 
 the Orders of the Day for to-morrow. 
 
 Mr. BOUTWELL, for Berlin. I rise to a 
 question of order. I wish to know whether the 
 motion can be made at this time ? 
 
 The PRESIDENT. The motion cannot be 
 made except by general consent, unless the Orders 
 of the Day be first laid upon the table. 
 
 Mr. BOUTWELL objected.- 
 
 Mr. HALLETT moved that the Orders of the 
 Day lie upon the table. 
 
 The question was taken, and the motion was 
 not agreed to. 
 
 Preservation of the Records. 
 
 The PRESIDENT. The next matter in the 
 Orders of the Day is No. 6 in the calendar, being 
 the resolves on the subject of the preservation of 
 the records. The question pending is upon their 
 final passage. 
 
 The resolves were read, as follows : 
 
 Resolved, That, at the close of the session, the 
 Secretaries of the Convention deposit the original 
 journals, together with the papers of the Conven 
 tion, in the office of the Secretary of State. 
 
 Resolved, That William S. Robinson prepare an 
 index to the journal, and procure two thousand 
 copies of the journal and index to be printed and 
 bound, on such terms and in such manner as 
 shall be approved by the Committee on the Pre 
 servation of the Records, and that he be paid four 
 dollars a day for his services therein. 
 
 Resolved, That his Excellency the Governor be 
 requested to draw his warrant on the treasury for 
 such expenses incurred in the execution of the 
 preceding resolves, as shall be approved by the 
 Committee on the Preservation of the Records. 
 
 Resolved, That the Secretary of the Common 
 wealth be requested to distribute copies of the 
 journal to each member of the Convention, and 
 
64th day.] 
 
 ELECTIONS BY PLURALITY. 
 
 275 
 
 Fxiday,] 
 
 BRIGGS BIRD HOOPER DANA SCHOULER. 
 
 [July 22d. 
 
 to all persons and public bodies mentioned in 
 chap. 2, sec. 2, of the Revised Statutes, excepting 
 members of the legislature. 
 
 The PRESIDENT. The question is upon or 
 dering the resolves to their final passage. 
 
 Mr. BRIGGS, of Pittsfield, I wish to make 
 an inquiry in regard to this matter. I am in 
 formed that the mode of doing this business in the 
 House of Representatives is to pay a certain sum, 
 say one hundred or one hundred and fifty dollars, 
 for the work. If that has been the practice here 
 tofore, I wish to inquire what reason there was for 
 departing from it in this case ? I merely ask for 
 information. 
 
 Mr. BIRD, of Walpole. The Committee un 
 derstood that the practice had been to pay four 
 dollars per day for services of this kind rendered 
 by the clerk ; but I have been informed by gen 
 tlemen here that the practice has been to pay a 
 round sum, one hundred or one hundred and fifty 
 dollars, as the case might be. 
 
 Mr. BRIGGS. I have no choice about it. I 
 merely wanted the information. 
 
 The question was taken on the resolutions as re 
 ported by the Committee, and they were agreed to. 
 
 Elections by Plurality. 
 
 The PRESIDENT. The matter next in order 
 is No. 7 upon the calendar, being the resolutions 
 upon the subject of elections by plurality and 
 majority. The question pending is upon their 
 final passage. 
 
 The resolutions were read, as follows : 
 
 Resolved, That it is expedient to provide in the 
 Constitution that a majority of all the votes given 
 shall be necessary to the election of a governor, 
 lieutenant-governor, secretary, treasurer, auditor, 
 and attorney- general of the Commonwealth : pro- 
 vided, that if at any election of either of the above- 
 named officers, no person shall have a majority 
 of the votes given, the House of Representatives 
 shall, by a majority of viva voce votes, elect two 
 out of three persons who had the highest, if so 
 many shall have been voted for, and return the 
 persons so elected to the Senate, from which the 
 Senate shall, by viva voce vote, elect one who 
 shall be governor. 
 
 Resolved, That in all the elections of senators 
 and councillors, the person having the highest 
 number of votes shall be elected. 
 
 Resolved, That in the election of representatives 
 to the general court a majority of all the votes 
 given in shall be necessary to the election at the 
 first ballot : provided, that in case of a failure of 
 election on such ballot, the person having the 
 highest number of votes at the second or any 
 subsequent ballot, shall be elected. 
 
 Mr. HOOPER, of Fall River. I move the 
 previous question. 
 
 Mr. DANA, for Manchester. I hope the pre 
 vious question will not be sustained, for I have 
 an amendment which I desire to propose. 
 
 Mr. SCHOULER, of Boston. I hope the pre 
 vious question will not be pressed, because I shall 
 feel myself under obligation to move a reconsid 
 eration, and I do not think we shall gain any 
 time by such a motion. I do not intend to dis 
 cuss this matter, but I intend to move the same 
 amendment which I offered the other day. The 
 gentleman for Manchester has also expressed a 
 desire to move an amendment. I do not know 
 what it is, but I think that opportunity should be 
 afforded to any gentleman to move amendments. 
 I can assure the gentleman from Fall River, (Mr. 
 Hooper,) that I do not intend to occupy any 
 time, but merely to offer my amendment. If the 
 previous question should be sustained, and no 
 opportunity given to offer amendments, I shall 
 move a reconsideration. I call for the yeas and 
 nays upon the previous question. 
 
 The yeas and nays were ordered. 
 
 Mr. HOOPER, of Fall River. I will with 
 draw the motion for the previous question. 
 
 Mr. DANA, for Manchester. I propose to 
 amend the resolves by striking out all after the 
 word " that," in the first resolve, and inserting 
 the following : 
 
 That in the election of all officers required by 
 this Constitution to be elected by the people, ex 
 cept town officers and representatives to the gen 
 eral court, the person having the highest number 
 of votes shall be deemed elected. In the election 
 of town officers and representatives to the general 
 court, a majority of votes shall be required, unless 
 otherwise provided by the legislature. 
 
 I wish to take a few moments of the time of the 
 Convention to suggest a reason or two in favor of 
 this amendment. I said, day before yesterday, 
 when the subject of the judiciary was up, that I 
 hoped that whatever had been settled by a test 
 vote would be treated as settled ; and that I would 
 not bring forward any amendment on the subject 
 of the plurality, if the amendment on the subject 
 of the judiciary could also be dropped ; but as 
 that subject was reopened, I feel myself at liberty 
 to bring forward this amendment. 
 
 The Convention will allow me to suggest to 
 them the state of this question now. The officers 
 whom the people elect will be divided into three 
 classes : first, those chosen by towns, including 
 representatives. Now, are we not pretty much 
 all agreed, as the votes show, that they shall be 
 chosen still by majorities, and at the same time, 
 that the hands of the legislature shall not be tied, 
 so that if towns think it expedient to have the right 
 
276 
 
 ELECTIONS BY PLURALITY. 
 
 [64th day. 
 
 Friday,] 
 
 DANA. 
 
 [July 22d. 
 
 to vote by plurality, they may do it. Now the ob 
 jection to the Report of the Committee is, that it 
 ties the hands of the towns. They cannot vote on 
 the plurality principle on the first trial, if they 
 wish to, without amending the Constitution. My 
 amendment is this: that in the town meetings 
 they shall vote upon the majority rule, but that 
 the legislature may, when they desire it, untie 
 their hands and allow them to vote by the plu 
 rality rule. That is the first class of cases ; and 
 the reason why I think it expedient that towns 
 should vote by the majority rule is, that they are 
 deliberative assemblies, and can vote as many 
 times in a day as they please, or adjourn. I 
 suppose that we pretty much agree that it is best 
 to leave them to the majority principle, with 
 power in the legislature to alter it. 
 
 With regard to the second class of cases, we are 
 all agreed, as the votes show ; that is, in the 
 county and district elections, including council 
 lors and senators, the plurality rule ought to pre 
 vail. My amendment, and the Report of the 
 Committee, therefore, coincide in that respect. 
 Then, Mr. President, is it not true that, after all, 
 there is but one point of disagreement here ? 
 Notwithstanding all the discussion we have had, 
 when we come to get at the bottom of the matter, 
 is it not true that there is but one point of disa 
 greement here ? And that point of disagreement 
 is far less, too, I apprehend, than gentlemen sup 
 pose ; because, on that point that is, relating to 
 the election of governor, lieutenant-governor, and 
 other general officers the majority principle is 
 abandoned. Yes, Sir, the majority principle is 
 abandoned. There is no difference, on that point, 
 between the friends of the majority principle and 
 the friends of the plurality principle ; because it 
 is agreed, on all hands, that there shall not be a 
 second trial. Is not that so r Is it not agreed 
 here, by the friends of the majority, as well as by 
 the friends of the plurality, that there shall be no 
 second trial for these officers ? If there is no sec 
 ond trial, then the majority principle is abandon 
 ed. The only question, then, is, whether, in case 
 there is no majority, we shall take the plurality 
 rule, or leave it to the legislature. If I am not 
 right in that statement, I would like to have some 
 gentleman say why I am not right. The votes 
 have shown that we do not intend to have a sec 
 ond trial anywhere but in towns. No second 
 trial for the State officers, no second trial for the 
 councillors, no second trial for the senators, or for 
 any of the county or district officers. 
 
 Well, if there is no second trial, the majority 
 principle is abandoned ; and all the discussion on 
 the subject of majority and plurality is entirely ir 
 relevant. Then the real question is, whether, in 
 
 case you have no second trial, and there is no ma 
 jority to elect the general officers, the election 
 should be by the legislature or by the plurality rule. 
 I take it that the plurality principle is nearer the 
 majority principle than the vote of the legislature 
 can be. I would ask the friends of the majority 
 principle to look at the position which they assume, 
 when they sustain that Report. In case they sus 
 tain the majority principle, and there is no elec 
 tion by the people, they leave it for the House of 
 Representatives to choose two out of the three 
 highest, and that House of Representatives is not 
 based upon numbers. Is there any majority 
 principle in that ? The House of Representatives 
 is not based upon numbers, and yet a friend of 
 the majority principle leaves it to the House of 
 Representatives to select two out of three, and 
 then he is to be chosen by the Senate. And how 
 is the Senate chosen ? Not by a majority but by 
 a plurality. Now, where are the friends of the 
 majority principle on that Report ? If there is not 
 a choice at the first trial, they will not allow a 
 second trial ; and they then leave it to the House 
 of Representatives to select two, that House of 
 Representatives not being based upon numbers. 
 They then leave it to the Senate to make the final 
 choice, the Senate being based on a plurality. 
 That throws out the majority principle entirely. 
 
 The real question, then, is not between a ma 
 jority and plurality, but between a majority and 
 the legislature, if you cannot get the majority. 
 That is the real question ; and I say if you cannot 
 get the majority, take the plurality. That is the 
 most democratic, the most republican, and comes 
 nearest to the majority principle. 
 
 The objections to trying the question in the 
 legislature are numerous. The legislature ought 
 not to be elected with reference to choosing a gov 
 ernor, but for a very different purpose. In choos 
 ing a governor on this floor, we are liable to the 
 influence of the arrangements made in committee 
 rooms, of coalitions formed here which are not so 
 desirable nor so dignified as those formed at the 
 polls. If we are to have them I would rather 
 have them formed at the polls than in the com 
 mittee rooms. 
 
 That is all I propose to say on the main ques 
 tion. I think it raises the issue fairly. 
 
 I wish to say one word in reply to the gentle 
 man for Abington, who did me the honor to pay 
 me a higher compliment on this subject than any 
 he had paid me before and I am indebted to him 
 for two or three compliments for all of which I 
 am really obliged to him, because they had the 
 evidence of being sincere, as everything has 
 which comes from him. But this compliment 
 exceeded them all. He said that I purposed 
 
64th day.] 
 
 ELECTIONS BY PLURALITY. 
 
 277 
 
 Friday,; 
 
 DANA KEYES. 
 
 [July 22d. 
 
 to revive the dead Whig party. I did not know 
 that he attributed to me the power of working 
 miracles before ; but it is quite true, that with 
 the countenance of the gentlemen for Berlin, 
 (Mr. Boutwell,) the gentleman from Springfield, 
 (Mr. Beach,) and the gentleman from Lowell, 
 (Mr. Butler,) the gentleman for Otis, (Mr. Sum- 
 ner,) the gentlemanfrom Charlestown, (Mr. Froth- 
 ingham,) and some others, I did try to revive the 
 Whig party, if the plurality will revive it. I 
 wish that when a majority cannot be obtained, 
 and we cannot have a second trial, to say that 
 the people shall elect by a plurality. 
 
 It has been said by some Whig gentlemen, that 
 the purpose of that first resolution is to enable 
 certain parties to govern the State ; and by other 
 gentlemen the gentleman for Abington among 
 others that those who favor the plurality prin 
 ciple, do it to enable another party to govern the 
 State. Now, I wish to put the question to my 
 Democratic friends whether they have so little 
 faith in their principles, so little confidence in 
 their star, as to sit down in despondency, in the 
 belief that the Whig party is always to be the 
 popular party in this Commonwealth ; whether, 
 with a popular New England man president, who 
 had a majority of the voters of Boston in his 
 favor, with the prestige of almost unbroken suc 
 cess on their side throughout the Union, they 
 will sit down in despondency in the belief that 
 the Whig party is always to be in the ascendant 
 here ? I wish to put the question to the gentle 
 man for Abington, who is a member of an " un 
 healthy organization," and better be unhealthy 
 than be dead, for while there is life there is hope, 
 whether the party to which we belong has so 
 little faith in its principles as to believe that we 
 are never to prevail ; whether, with principles 
 which both the other parties have recognized as 
 true, within ten years ; and with principles which 
 almost all the leading public men in this State 
 have recognized within ten years, at some time or 
 other, to be true ; whether, with principles in 
 support of which he can point to resolutions 
 passed unanimously, or nearly unanimously, by 
 the legislature of this State, within ten years ; he 
 -will sit down in despondency, and make his 
 legislation in the belief that his party will never 
 be the dominant party ? I would ask him whether 
 the necessity of having more votes than both the 
 great national parties together, has not been a 
 discouraging fact in our history ? Whether it 
 has not operated so, and whether, under the plu 
 rality rule, it would not operate otherwise ? 
 
 But, I ask pardon of the Convention for sug 
 gesting any considerations like these. I do it in 
 reply and I wish the Convention to bear me 
 
 witness that I do it in reply to charges made, 
 that gentlemen are governed by party motives. I 
 wish to show that those motives are too unsound 
 for any to be governed by. No man can tell who 
 will be in the plurality here next November, and 
 certainly not, a year from next November; be 
 cause as the parties are now constituted, it is hard 
 to say what a day, and much more what a year, 
 will bring forth ; and in settling these great con 
 stitutional questions we are not far-seeing enough, 
 and I trust we are too honest, to be governed by 
 speculations upon the future state of parties. I 
 believe the plurality principle is a political neces 
 sity. I think the resolve of this Committee shows 
 it to be so ; for this Committee have abandoned 
 the majority principle, let me say it again, in 
 everything but the towns ; and the only question 
 now, is between the legislature and the people. 
 That is the only question ; and it seems to me, that 
 in a question like that, the principle is clear ; and, 
 as for party success, we must trust to Providence 
 for that. 
 
 Mr. KEYES, for Abington. The gentleman 
 for Manchester, says I have paid him two or three 
 compliments. If I have, certainly they were 
 given in sincerity. 1 do not know but I ought to 
 balance the account, and say something on the 
 other side. At any rate, after the long contest 
 had the other day, when there was a full house ; 
 when we talked about ending debate on this sub 
 ject ; when we took it up, item by item, and 
 discussed it thoroughly and understood every part 
 of it, and voted in detail on the whole of it ; I 
 supposed that ended the whole matter, if anything 
 ever can end a matter in this House. Unless 
 there is a limit somewhere, how shall we know 
 when we are beaten, and when victorious ; where 
 is to be the end ? It has been said of some of our 
 brave and popular generals that they never knew 
 when they were beaten ; and it seems the gentle 
 man for Manchester is in the same category, after 
 the contest the other day, when we made a fair 
 fight and the Report was victorious ; that ought to 
 have been the end of the debate. If, therefore, 
 anybody under the circumstances should be per 
 mitted to introduce amendments, it should not be 
 the enemies, but the friends of the Report. I 
 have no sympathy with persons who attempt to 
 amend and prepare for the people articles which 
 they utterly oppose from beginning to end, and 
 which they mean to oppose forever. That is not 
 the way ; it is not natural that they should care 
 anything about the condition of this bantling, 
 only to try to have it go forth in the most monstrous 
 shape that it can. 
 
 Now, Sir, the gentleman for Manchester is 
 the last whom I should suspect of improper 
 
278 
 
 ELECTIONS BY PLURALITY. 
 
 [64th day. 
 
 Friday,] 
 
 KEYES DANA BIRD. 
 
 [July 22d. 
 
 motives ; and I have no wish to arraign the motives 
 of anybody, for we cannot see the heart ; but it is 
 a little strange that he should be so anxious for 
 the adoption of a system so utterly opposed to all 
 the sentiments of his whole life a system which, 
 if it should prevail, would break down the old 
 landmarks of the Constitution and utterly revolu- 
 tioni/e the government. Sir, if this policy should 
 be adopted, it would be absurd to call this a repub 
 lican government there is no such definition of 
 the word in any of the dictionaries, Latin, Greek, 
 French, or Sanscrit. I trust that if this Convention 
 has arrived at the period when it can justify itself in 
 limiting speeches to fifteen minutes, it can assume 
 authority in other respects. Although originally 
 opposed to the previous question, still, I regard 
 this as a matter which has been fully discussed 
 and settled by the Convention ; and the only at 
 tempts which are now made to make a change, 
 are by its bitterest enemies in all respects ; and, 
 therefore, I think the time has now come to put 
 the screws on. 
 
 Mr. DANA. If the gentleman will allow me, 
 I would like to ask him one question. He says 
 that if we adopt the plurality rule instead of the 
 majority rule, there is no republicanism. I want 
 to ask him what remains of the majority rule in 
 that Report ? 
 
 Mr. KEYES. I am perfectly content to say, 
 nothing remains ; but then, if he thinks that this 
 is all plurality, w r hy does he not vote for it ? If 
 it is all plurality, what more does he want ? 
 These plurality men are not satisfied with that ; 
 but if his argument is good for anything, they are 
 entirely unjustifiable in making any objection to 
 it at all. It is said that we have surrendered 
 nothing to that side ; but, Sir, it seems to the gen 
 tleman for Manchester, that we have surrendered 
 the whole. I am glad that he has reminded me 
 of that point, for I had nearly forgotten it, al 
 though I took a note of it at the time. Mr. Presi 
 dent, we have surrendered almost everything, and 
 yet they are not satisfied unless they get more 
 than the lion s share, Now, I ask him again, if 
 this is a good plurality system, why is he not 
 satisfied with it ? What does he want more ? 
 What he seems to desire is a mere forma .ity, and 
 he ought to be willing to submit to a fair com 
 promise, for the harmony of the Convention, 
 which is almost equally divided on the subject. 
 Now, I am strongly in favor of the majority sys 
 tem ; and, Sir, we have the gentleman s own 
 arguments in reference to all other subjects, in 
 its favor; the history and experience of this 
 country is in its favor ; the history of every 
 country that is not disgraced and dishonored, is in 
 its favor. Sir, if I know anything about politics, 
 
 I know that the effect of the plurality system is to 
 degrade, to demoralize, and dishonor any people, 
 or any government, where it is adopted. I say 
 that this change which is proposed, is one of the 
 most radical character ; and it was so considered 
 by the united Whig party two years ago ; and 
 their change, in this respect, has neither been by 
 reason, or common sense, or justice. It has been 
 for a purpose I do not charge anybody with im 
 proper motives, or with any motives at all as I 
 said before, I do not profess to look at the heart ; 
 the motives may have been good, or they may 
 have been bad ; I do not care what they were, I 
 only look at the surface of things ; but I know, and 
 every man here knows, that there are Democrats 
 in Massachusetts who have done nothing else but 
 work in aid of the Whig party ; they want to 
 keep the Democratic party conveniently small, so 
 that they, and their friends may absorb all the 
 spoils which fall to the State. But men who call 
 themselves Democrats, vote upon the other side ; 
 that particular class of men to which he alluded, 
 and some of whom he pointed out, are, at heart, 
 in favor of this, and yet have voted all the time 
 in aid of the Whig party. Now, I do not wish 
 to act in such company, however distinguished 
 the men may be. I do not suppose that any gen 
 tleman can find himself in such company on the 
 ground of reason, or common sense, or conscience. 
 I beg to be understood that I charge no improper 
 motives upon any one upon this floor ; but the 
 grand argument which I would now impress upon 
 the minds of this Convention is, that this thing has 
 been discussed over and over again, and it is time 
 that the discussion was brought to a close. I hope, 
 therefore, that we shall take up the items one by 
 one, and if it be possible to gain a victory upon 
 this Report, that we shall stand by it under all 
 circumstances. 
 
 Mr. BIRD, of Walpole. Mr. President : I 
 move to amend the Report by striking out the 
 third resolution, and substituting in lieu thereof 
 the following : 
 
 Resolved, That it is expedient so to amend the 
 Constitution as to provide that a majority of the 
 votes shall be necessary for the election of repre 
 sentatives to the general court, until otherwise 
 provided by law. 
 
 I offer this amendment, Mr. President, prin 
 cipally because something of the kind is neces 
 sary, in order to make this proposition at all of the 
 character of a compromise. A great deal has been 
 said about compromise in this resolution ; for one, 
 I must say, in relation to that, that I do not see 
 much of a compromise in it ; and I never could 
 give my support to such a resolution as this upon 
 the ground that it was a compromise. 
 
64th day.] 
 
 ELECTIONS BY PLURALITY. 
 
 279 
 
 Friday,] 
 
 BIRD GOOCH. 
 
 [July 22d. 
 
 I do not know as anybody has told us, in the 
 course of this debate, what the compromise con 
 sisted in. It has been intimated, that it was a 
 compromise which was concocted in an eating- 
 house, or that some arrangements was made there 
 which foreshadowed the final result here. All 
 that I have to say in relation to that matter, is, 
 that I know of no such arrangements, and, least 
 of all, in connection with this matter. The 
 charge, that the order of business here is the re 
 sult of caucus arrangements, is far from compli 
 mentary to the majority ; for, if such arrange 
 ments are made, nobody adheres to them. 
 
 I do not regard these resolutions as being any 
 compromise at all, as they give absolutely noth 
 ing to the friends of the majority system. They 
 provide that the governor and other State officers 
 shall be chosen by a majority at the first ballot ; 
 but that if there is not a majority at this popular 
 election, then they are to be chosen by the legis 
 lature. In the present state of parties in this 
 State, these six State officers will not be chosen 
 by a majority of the popular vote at the first 
 election. This gives us nothing at all ; because 
 then the election is given to the legislature. The 
 county and district officers are all to be elected by 
 a plurality ; and the representatives to the general 
 court are to be chosen by a majority at the first 
 trial, and the plurality system at the second ; and 
 this is what they call a concession to the friends 
 of the majority system ! Sir, it is no concession 
 at all. E very-body knows that it is a fact, that 
 the election of representatives in a majority of 
 towns, is not ordinarily made at the first ballot. 
 I do not say that it is not made on the first day, 
 but not at the first ballot. Now as a party man, 
 if I am going to have the plurality system at all, 
 I want to have it at the first ballot rather than 
 the second. I do not want any second trial by 
 plurality for representatives to the general court. 
 
 But I do not look at this matter in a party 
 light at all. I want to establish in our Consti 
 tution, some sort of recognition of the majority 
 principle ; and, unless we adopt the amendment 
 which I have proposed, I think we shall not have 
 it. Although I should prefer, personally, that 
 the majority rule should apply to a larger num 
 ber of officers than even this amendment will 
 include, still I am willing to go with our friends 
 who are in favor of the plurality rule, as a mat 
 ter of compromise. I ask nothing unreasonable 
 in this compromise ; but simply that you will 
 give us a chance to elect our representatives to 
 the general court by the majority system ; and, 
 if afterwards, the people, through the legislature, 
 shall decide that it is better to apply the plurality 
 rule to the election of representatives, I will be 
 
 willing then to yield, and give that up too. I 
 say that this is what I consider a fair compromise. 
 We give you all the State officers, councillors, 
 senators, judges of probate, county commission 
 ers and commissioners of insolvency, and all 
 county and district officers ; and, all that we ask, 
 is simply the concession that we may retain the 
 majority system for the election of representatives 
 to the general court. 
 
 I should have been glad to have adopted the 
 rule indicated by my friend from Melrose, (Mr. 
 Gooch,) the other day ; and that is, that in the 
 election of the law-making power, a majority 
 vote should be required in. all cases ; but, in the 
 election of administrative officers, who were not 
 to make laws, but merely to administer them, the 
 plurality system should be adopted. I considered 
 that as a very good rule, and a fair compromise, 
 that the governor, lieutenant-governor, senators, 
 and representatives for I do not care much which 
 rule you apply to the secretary, treasurer, audi 
 tor, and attorney- general, whether they are chosen 
 by plurality or not should have been chosen by 
 the majority system ; but I am willing to concede 
 even more than that. I am not willing, however, 
 to go farther than, the amendment which I have 
 now submitted, indicates. Until the people shall 
 decide that the plurality rule shall be adopted, I 
 am unwilling to yield the majority principle. I 
 want to hold on to that, to the extent that we 
 shall at least have one branch of the legislature 
 one branch of the law-making power, which is 
 to choose the governor under certain circum 
 stances elected by the majority principle. 
 
 But I will not go into this matter at length. If 
 gentlemen are not disposed to yield us this one 
 point of applying the majority principle to our 
 representatives I do not suppose they can be 
 argued into it by anything which I can say. I 
 will add, however, that if we cannot secure this 
 recognition of the majority principle in the Con 
 stitution on this one point, rather than to go for 
 the Report as it stands now, I would go for the 
 plurality rule clean through from top to bottom. 
 Rather than accept the proposition of the gentle 
 man for Manchester, I would give up entirely, 
 and let the plurality principle be applied to every 
 thing. This amendment, which I have offered, 
 is submitted in a spirit of compromise, and I am, 
 willing to go more than half way for the sake of 
 harmony ; but, if we cannot agree upon a fair 
 compromise, in God s name let us at least have a 
 principle, or something that looks like a uniform 
 rule, to stand upon. 
 
 Mr. GOOCH, of Melrose. I wish to submit 
 an amendment to the amendment proposed by 
 the gentleman from Walpole ; and with the addi- 
 
280 
 
 ELECTIONS BY PLURALITY. 
 
 [64th day. 
 
 Friday,] 
 
 DENTOX GOOCII HOOPER. 
 
 [July 22d. 
 
 tion which I propose, I shall be in favor of his 
 amendment. I move to add, at the end of the 
 amendment, the following proviso : 
 
 Provided, that no law on this subject shall take 
 effect until two years after its passage. 
 
 Mr. DENTON, of Chelsea. I rise to a ques 
 tion of order. I will inquire if the gentleman for 
 Manchester did not propose an amendment to the 
 resolution, and if the gentleman from Walpole 
 did not propose an amendment to his amendment r 
 The PRESIDENT. The Chair will state, 
 for the information of the gentleman, the position 
 of the question. The delegate for Manchester 
 moves to amend by striking out the resolution 
 and inserting another resolution. The delegate 
 from Walpole moves to amend the part to be 
 stricken out, which takes precedence of the motion 
 to strike out. The vote must first be taken on 
 the amendment proposed by the delegate from 
 Walpole, to amend the part which it is proposed 
 to strike out; and the delegate from Melrose 
 moves to amend that amendment, which is in 
 order. 
 
 Mr. GOOCH. The reason why I propose the 
 amendment which I have submitted, is this : I 
 think, that by the adoption of the amendment 
 proposed by the gentleman from Walpole, to 
 gether with my amendment, the matter will be 
 placed where it ought to be, in the hands of the 
 people. It will be placed so that the people shall 
 have control over it. No one legislature can 
 have entire control over the matter, but it will be 
 put in a position so that if one legislature sees fit 
 to change the present rule to the plurality rule, 
 and the people see fit to ratify that action, it can 
 be done ; and otherwise it cannot be done. I am 
 willing to leave the matter in this position. If 
 the people desire that the majority principle may 
 be continued for the election of their representa 
 tives, then, Sir, with this provision, they have 
 power to accomplish their object whenever they 
 choose to do so. If they send to the legislature 
 men who pass a law making a change to the plu 
 rality system, and if that measure is not repealed 
 by the subsequent legislature, then it goes into 
 effect as a law of the Commonwealth, and the 
 plurality rule is established. It takes it out of 
 the hands of any political party, and places in the 
 hands of the people ; because, if the legislature 
 pass a law changing the majority rule, then, Sir, 
 the people, if they do not approve of the change, 
 can send men to the next legislature who will 
 repeal the law making the change. If the two 
 amendments are adopted, it requires two years to 
 carry the law into effect, and another legislature 
 must intervene before it can take effect. Then, 
 
 Sir, if a change takes place, it obtains the sanction, 
 not of one legislature merely, but of two succes 
 sive legislatures ; and the sanction also of the 
 people, because the members of the second legis 
 lature will be chosen, knowing that the matter 
 might be altered or changed by the subsequent 
 legislature ; and of course, if the people are op 
 posed to it, they will elect members to the legis 
 lature who will put the matter right, and leave it 
 in such a shape as the people desire to have it 
 stand. I hope the amendment which is presented 
 by the gentleman from Walpole, and the amend 
 ment which I have moved to that amendment, 
 may both be adopted. 
 
 Mr. HOOPER, of Fall River. I moved the 
 previous question, in the outset, in the hope that 
 this Report, as presented here, would satisfy all 
 parties. It is manifest that there is a difference 
 of opinion among those who generally act together 
 in this Convention, and it is necessary that some 
 thing should be conceded on both sides. I am in 
 favor of the plurality system throughout. I have 
 been so from the beginning, and I am so still ; 
 but I find other gentlemen are opposed to it. 
 There are certain instances in which I am desirous 
 of having it applied more than in others, because 
 the convenience and the wishes of my constitu 
 ents require it. Now, Sir, I am willing to give 
 up something, a part, to obtain the remainder I 
 am willing to give up what the Report 1ms given 
 up the election of those officers who are to be 
 elected by the whole people at large. And I can 
 the more readily concede this, because the prin 
 ciple is in accordance with the one which has 
 been suggested by the gentleman for Manchester, 
 (Mr. Dana,) and other gentlemen here that the 
 legislature, or those persons who are to be elected 
 by the people at large, can exercise those dele 
 gated powers as well as, and perhaps better, if 
 their doctrine is true, than the people themselves. 
 He goes for having the governor, who is elected 
 by the people at large, appoint the judges. 
 Others contend that this is an election by the 
 people. Now, if this be so, why is it not as well 
 for the legislature, elected by the people of the 
 State, to elect those officers named in the Report, 
 to be elected by them in a certain contingency ? 
 It is a business they have been accustomed to do 
 in part, that is, to elect a secretary, treasurer, and 
 auditor, and a governor and lieutenant-governor, 
 frequently. Now, I am willing to let the whole 
 matter rest where the Report of the Committee 
 leaves it, and sustain that Report, as the only 
 safe ground on which we can stand, under exist 
 ing circumstances. 
 
 But it is proposed, on the other hand, to change 
 the election of representatives and town officers. 
 
64th day.] 
 
 ELECTIONS BY PLURALITY. 
 
 281 
 
 Friday,] 
 
 HOOPER HITRLUUT. 
 
 [July 22d. 
 
 That is a point, of all others, which I wish to re 
 tain. It is the one in which my constituents feel 
 the most interest. There I wish to have the plu 
 rality system applied. I should prefer to have it 
 in the first instance ; but I am willing to concede 
 something even there. 
 
 Now, this Report is the Report of a Committee 
 which was appointed expressly with the view of 
 making a compromise report upon this matter. 
 Gentlemen will recollect that one Report that was 
 brought in, recommended the plurality system 
 throughout. That Report was in part accepted, 
 and in part rejected. A Committee was appointed 
 to draw up a report incorporating the different 
 views which had been expressed. They the 
 Committee supposed they had done this; and 
 now I hope that gentlemen will stand upon the 
 Report as it is. I am willing to stand upon it, for 
 one ; but if this amendment is adopted, I shall 
 be constrained to vote against that Report as a 
 whole. Let it therefore stand as it is, and I will 
 go for it. I think it is the only safe ground we 
 can take. 
 
 Mr. HURLBUT, of Sudbury. Mr. President : 
 On a former occasion, I expressed my views upon 
 this subject. Then, I attempted to show that the 
 majority principle was the only true one. My 
 convictions are the same to- day. Sir, I am not 
 prepared to stand upon this Report, and for this 
 reason : we are called upon to coir promise ; and 
 what does that imply ? Why, that two or more 
 parties disagree, and that each shall surrender 
 something. When this question was under dis 
 cussion before, so nearly were the Convention 
 balanced between plurality and majority, that 
 neither party were willing to press the matter. 
 For this reason, it was, Sir, that a new Commit 
 tee was appointed, with the understanding that a 
 different proposition should be submitted, recog 
 nizing the two principles ; not that one should 
 lose all, and the other gain everything ; but that 
 each should yield to the other that there should 
 be mutual concession. And now, Sir, what 
 have they presented us ? A plan by which plu 
 rality must elect every department of the govern 
 ment. I submit, Sir, that there is no feature of 
 compromise in the whole bill. There is running 
 through each resolve the cry of " give, give." 
 Sir, I am prepared to yield one-half, yes, more 
 than that, much more, if need be ; but I cannot 
 surrender everything ; and I would much prefer 
 to remain silent in my seat, did I not believe 
 gentlemen to be deceived in this matter. I 
 apprehend, Sir, that the third resolve has quieted 
 the fears of gentlemen ; that they do not fully 
 understand its operation. It is for this reason, 
 that I rise, to save, if possible, the principle of 
 
 19* 
 
 elections by majority from complete and perpet 
 ual ruin. 
 
 Sir, let us examine the several resolutions in 
 their order. The first proposes that the governor 
 and lieutenant-governor shall be elected by 
 majority ; but, Sir, who does not know that we are 
 to have but one trial, and in case there is no choice 
 of State officers, provision has been made to elect 
 them on this floor. And who does not know, 
 too, that the people have failed to elect such offi 
 cers in years past, and in all probability will fail 
 to do so in years to come ? Have the friends of 
 the majority principle anything to expect, then, 
 from such an arrangement ? Certainly not. It 
 must then depend upon the manner of choosing 
 representatives whether your State officers are 
 elected by majority or plurality. And how is it 
 in regard to county officers ? Why, we accede to 
 the opposition the right to elect on the first ballot, 
 and by plurality. Now, then, we come to town 
 representation, and how, I ask, do the Committee 
 propose to elect? By plurality, most clearly 
 and I appeal to every honest gentleman present, 
 if it be not so : True, they say we may elect by 
 majority, if we can, on the first ballot. Sir, the 
 first ballot is only the bringing forward of candi 
 dates ; and frequently, perhaps I may say gen 
 erally, gentlemen who are to lead off in the seve 
 ral parties are not named till declared by the 
 chair. Then for a second trial, and that is to 
 decide. The party then which happen to have a 
 plurality of voters present, though it be a small 
 minority in the city or town, must be triumphant. 
 Are gentlemen prepared for this ? I trust not. 
 Let us not be deceived. If gentlemen intend to 
 go for plurality, let it be done fairly, openly, 
 manfully. I can understand how gentlemen may 
 vote on that principle. I can understand how 
 they may vote for majority, too, and I can see 
 with what propriety both parties may meet on a 
 common platform of compromise ; but, Sir, I do 
 not understand why we should adopt these reso 
 lutions, which acknowledge neither plurality or 
 majoritj r , and are wanting in every important 
 particular of a fair and honest compromise. 
 
 Sir, the Report is without principle. I want a 
 compromise, or else I want to vote upon princi 
 ple, and only upon principle. I am prepared to 
 vote for the amendment of the gentleman from 
 Walpole, because we surrender everything but 
 town majorities, and if we can secure that to our 
 towns, we have a compromise ; not such as in my 
 humble judgment we had a right to expect, but 
 the best we shall be likely to obtain, at this late 
 stage of the bill. Should that amendment fail, 
 then I will vote for that of the gentleman for 
 Manchester, which, in my judgment, is preferable 
 
282 
 
 ELECTIONS BY PLURALITY. 
 
 [64th day. 
 
 Friday,] 
 
 HURLBTTT STETSOX. 
 
 [July 22d. 
 
 to the resolutions on your table ; and should that 
 fail, then, Sir, I shall go for the majority principle 
 entire. It seems clear to my mind, that if we 
 fail to sustain the first amendment, all is lost. 
 Yes, Sir, everything. Not a vestige of principle 
 remains; there is not a single p ece of broken 
 plank in the old ship big enough to place your 
 foot upon. 
 
 Sir, I know not how others may act ; but for 
 myself, I see only one course to pursue, and that 
 is the straight course. I do not say that I will have 
 the whole, or nothing. No, Sir. But I do de 
 mand something. No gentleman has attempted 
 to overthrow the great majority principle only on 
 grounds of expediency. Sir, what weight ought 
 such arguments to have ? It might be expedient 
 to establish a despotic government, for ought they 
 show to the contrary. Certainly, it would be 
 more convenient oftentimes ; not half the ma 
 chinery would be necessary to carry it on. And 
 for such a reason are gentlemen ready to make the 
 exchange ? " Trust it not, Sir, twill prove a snare 
 to your feet." In the hands of the people the 
 majority of the people our institutions are safe ; 
 place them wherever else you please, and they are 
 in danger. 
 
 Mr. STETSON, of Braintree. I regret that I 
 feel it my duty to address the Convention again 
 upon this question. I do not now propose to 
 argue the question, because the Convention are 
 tired of it. I suppose, that in the long and able 
 arguments that have been made upon this bill, 
 beginning about the 20th day of May last, and 
 occupying the attention of the Convention at that 
 time for nearly five days, and then upon taking the 
 question the majority being nearly balanced by the 
 minority, that we would have definitely settled it 
 before this. What I mean by the majority is this : 
 that upon certain questions, there is a bare major 
 ity, and upon others, a majority one way at one 
 time, and another way at another time, a vacillat 
 ing sort of majority, with which the Convention 
 is not satisfied, and of which, Sir, I venture to 
 say, that the records of no Convention which 
 ever yet met together upon this continent, will 
 show the like, as the votes will show during the 
 last days of that discussion. Now, Sir, we have 
 spent two or three days more in discussing this 
 matter, as reported by this new Committee. It 
 was given out by the leaders of this Convention, 
 that a Report was to be brought in which would 
 be acceptable to all. Well, Sir, after several 
 weeks delay, this bill was brought in, and was 
 but very faintly advocated by the chairman of the 
 Committee. Its provisions, and its excellencies, 
 were left to be developed by other means than those 
 at the disposal of the chairman of the Committee. 
 
 Now, Sir, I will ask, if the time which has 
 been spent in this session of the Convention, is to 
 be charged upon a majority of its members ? I 
 believe, as one of the progressives, that the blame 
 of some little portion of the delay rests upon 
 myself. But, Sir, the leaders of this Convention 
 have declared, from time to time, upon this floor, 
 that they were not strenuous about carrying any 
 thing which the people did not seern to desire ; 
 that they would not be strenuous in maintaining 
 any measures, if they could be carried without 
 their assistance. The gentleman from Lowell, 
 (Mr. Butler,) the other day, said he had no desire 
 to be pertinacious in regard to obtaining measures 
 to suit himself. [Laughter.] If he could not get 
 what he wanted, why he would take just what 
 the Convention would give him. He was very 
 humble, and everything was very satisfactory to 
 him. Very well : the plurality question came 
 up the other day, upon its final passage ; and I do 
 not know where the gentleman from Lowell was 
 at that time ; but another question came up in 
 relation to the election of judges, on which it was 
 understood that he was to speak ; and, I believe 
 he did speak in a very Immblc manner [laughter] 
 and gave his support to the question of seven 
 years appointments; but when the Convention 
 ruled to change the term to ten years, the gentle 
 man was off; he would not support the bill. 
 [Laughter.] No, not he ; he would not support 
 it. He entered his protest against it upon the 
 record, all because he is not pertinacious in regard 
 to any measure which he deems for the interest of 
 the Commonwealth ! [Laughter.] Now, Sir, I 
 went for that proposition, because the term of ten 
 years was substituted for that of seven years. I 
 voted for it on that ground, and should have voted 
 against it on the other ; so that in one sense, the 
 gentleman from Lowell and myself agree to 
 differ. Sir, I doubt if you can produce a precedent 
 on record, of such vacillating legislation, as will 
 hereafter be found to have taken place here, when 
 the reports of our proceedings are fully made 
 up. And, on which side is it, Sir ? Why, Sir, 
 upon the side of our own party ; on the side of 
 those who call themselves progressionists, dividing 
 from time to time, and each claiming the lion s 
 share. I know that it is said, that there are no 
 parties here. In one sense, perhaps not; but 
 there is a party here who wish to take another 
 party under their particular care, because it has 
 been a declaration of the Free Democracy for years 
 and they have stated it upon this floor that 
 the Democratic party itself had 110 character ; and 
 the reason why they wished to close with the 
 Democratic party was, that they might take them 
 under their care, and give them a character. 
 
64th day.] 
 
 ELECTIONS BY PLURALITY. 
 
 283 
 
 Friday,; 
 
 STETSOX WALKER DANA. 
 
 [July 22d. 
 
 [Laughter.] Now, far be from roe any such char 
 acter as they will give me, from taking me under 
 their care. I do not wish to be taken under the 
 wing of the Free Democracy, unless they will 
 exhibit some straight- forwardness of purpose ; 
 some manly, open and independent character, 
 whereby they may exist as a party and maintain 
 it; that is, maintain it by a course of action 
 which shall give the people some confidence that 
 they are acting upon principle. And I am free 
 to admit myself, that I believe that such legisla 
 tion as has been had in this body is disreputable ; 
 and if I understand anything of the character and 
 feeling of the people of Massachusetts, they will 
 never sanction the tergiversation of this body. 
 [Laughter.] Now, when this comes before the 
 people, I think they will judge of it, and investi 
 gate it, and I hope they will understand its char 
 acter. If they feel confidence in, and sanction 
 all the doings of this Convention, they are made 
 of more pliable materials than I have thought the 
 Yankees have heretofore been made of. I do not 
 believe there is such pliable materials in the Yan 
 kee character. 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 Conven 
 tion, they could not but suppose that the brains 
 of some of such leaders were hung upon a 
 weathercock. It seems 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 political 
 capital for themselves, and to lose sight entirely of 
 the objects, or the purposes for which this Con 
 vention was called. 
 
 Now, Sir, I have not spoken to the question, 
 and I stated I should not. I did not pretend to, 
 but I want to speak to the question, now, for one 
 moment, and that is to say that after a full and 
 explicit declaration, by a larger number of the 
 members of this Convention than have voted 
 upon any one question which has been taken by 
 it, on this plurality question ; after it has been fully 
 decided, by a vote of 193 to 188, I supposed that 
 this body would not again revive this discussion. 
 Now, I will ask from what quarter does this 
 revival come ? It comes from one quarter ; and 
 that is from the quarter which pretends to hold 
 the balance of power, and who hold the whole 
 sovereignty of this State, or pretend to do so, in 
 their own hands. And, Sir, they say they will 
 go for anything except for electing representa 
 tives by plurality at the second trial. I suppose 
 the Convention are in possession of the -fact that 
 
 not less than fifteen or twenty amendments have 
 been offered to this resolution, and which have 
 been voted down by large majorities ; and yet this 
 portion of this Convention, my own portion, in 
 part, who have the care of the State upon their 
 shoulders, what do they do ? Lengthen out debate, 
 bring up every sort of amendment, and put them 
 to the question in all stages of the debate, from, 
 the beginning to the end of the chapter. And 
 after that they move a reconsideration at every 
 stage which will admit of it. 
 
 Now, Sir, I claim that this Convention has 
 acted very consistently ; that is, that they have 
 voted every way, up and down, perpendicularly 
 and triangularly. [Laughter.] And, Sir, if they 
 have not voted enough let them vote this resolu 
 tion down, because I am in favor of getting as 
 much as I can in regard to plurality. I know it 
 is little ; but mind you, what we have got, if not 
 voted down, is something which the people in the 
 country would like to have. That is, all except 
 one party, because it treads upon its toes, and 
 they have no kind of consideration for the State, 
 and no consideration for anything except their 
 own interest and their own party. These are the 
 facts, and you see I am willing to say all I have 
 to say, and keep nothing back. I hope and trust, 
 that if this Convention has any principle left at 
 all, they will retain that little by saving this bill 
 from utter destruction by the Free Democracy of 
 this Convention. 
 
 Mr. WALKER, of North Brookfield. I am 
 very glad that the gentleman for Manchester, 
 (Mr. Dana,) has declared so frankly, as I under 
 stood him, that he has made his motion in regard 
 to this subject, because the judiciary question 
 was decided contrary to his wishes. 
 
 Mr. DANA. With the permission of the gen 
 tleman, I desire to say a word in explanation. 
 I hope the gentleman from North Brookfield is 
 the only one who misunderstood me. I know 
 he misunderstood for otherwise he would not 
 have misrepresented me. I said, the other day, 
 when the judiciary question was proposed to 
 be taken up, I moved to lay it upon the table, 
 and expressed a hope that the Convention would 
 sustain the motion, and treat all decided ques 
 tions as bygones. I said that if they would lay 
 that upon the table, I would not bring up my 
 motion on the subject of plurality, but would 
 treat that as bygone. But the Convention re 
 fused to lay that upon the table, and did recon 
 sider and revise their action upon the subject of 
 the judiciary. That dissolved me from my offer 
 not to bring that motion. I stated this morning 
 that I felt no longer bound not to bring forward 
 my resolution. I made the statement in order to 
 
284 
 
 ELECTIONS BY PLURALITY. 
 
 [64th day. 
 
 Friday,] 
 
 WALKEII ELY ABBOTT CROWNINSIIIELD YEAS. 
 
 [July 22d. 
 
 explain the reason why I had not adhered to my 
 offer. 
 
 Mr. WALKER. I hear the gentleman s ex 
 planation, and am willing he should have all the 
 advantage it will give him. I know he was partic 
 ularly sensitive in regard to the judiciary ; and I 
 suppose if I were a young lawyer, with fine 
 prospects, admirable abilities, and strong con 
 servative tendencies, I should be in favor of the 
 judges being appointed for life. But since I am 
 not, I have no such opinion. 
 
 Now, as to the measure which is under consid 
 eration. The gentleman s resolution is to upset 
 all that has been done heretofore. I supposed 
 that we had made a compromise, and that upon 
 that we probably would stand. For the motion 
 which has been made by the gentleman from 
 Walpole, (Mr. Bird,) I shall vote, because that is 
 right, and what he proposes to do should be 
 done ; and if that is not carried, then I shall 
 vo e for the Report of the Committee, and hope 
 it will be sustained, so that we shall not be com 
 pelled to go over the whole thing again. But I 
 cannot concur with those gentlemen who say 
 that if they cannot got what they want by way 
 of amendment, they will vote for plurality all 
 through. I do not understand how gentlemen 
 can do any such thing. If they believe it is 
 wrong in principle, I do not see how they can 
 vote for it in part or in whole. I am satisfied 
 that it is wrong in principle ; that, from, my 
 observation, and from all that I have seen and 
 heard, the effect of it is pernicious, and only per 
 nicious, in its operation, and therefore I cannot 
 go for it anywhere, or anyhow. I submit to it, 
 if necessary, but I cannot consent to it. 
 
 Mr. ELY, of Westlk-ld. I regret to make the 
 motion I am about to make, but feel compelled, 
 by a sense of duty, to make it. I do not wish to 
 cut off any amendment, but I do wish to cut off 
 this debate, of which I believe this Convention 
 is sick. Therefore, I move the previous question. 
 
 The question was taken on the motion for the 
 previous question, and there were ayes, 172 ; 
 noes, 44. 
 
 So the previous question was ordered. 
 
 Mr. ABBOTT, of Lowell, called for the yeas 
 and nays upon the amendment offered by Mr. 
 Bird, and they were ordered. 
 
 Mr. CROWNINSIIIELD, of Boston, called 
 for the yeas and nays upon the amendment moved 
 by the gentleman for Manchester, (Mr. Dana,) 
 and they were ordered. 
 
 The question first recurring upon the amend 
 ment offered by the gentleman from Melrose, 
 (Mr. Gooch,) it was put, and decided in the neg 
 ative. 
 
 So the amendment was rejected. 
 
 The question next recurred upon the amend 
 ment offered by Mr. Bird, and the yeas and nays 
 being taken thereon, there were yeas, 187 ; 
 nays, 166 as follows : 
 
 Abbott, Josiah G. 
 Adam-?, Shubael P. 
 Allen, Joel C. 
 Allen, Parsons 
 Allis, Josiah 
 Alvord, D. W. 
 Austin, George 
 Ayres, Samuel 
 Ball, George S. 
 Bartleit, Sidney 
 Barrett, Marcus 
 Bates, Mosc;^, Jr. 
 Beal, John 
 Bennett, Zephaniuh. 
 Bigelow, Jacob 
 Bird, Francis W. 
 Booth, "William S. 
 Boutvvell, George S. 
 Bout well, Sew ell 
 Bradford, William J. A. 
 Bronson, Asa 
 Brown, Artemas 
 Brown, Hammond 
 Brown, Hiram C. 
 Brownell, Joseph 
 Bryant, Patrick 
 Burlingame, Anson 
 Butler, Benjamin F. 
 Cacly, Henry 
 Caruthcrs, William 
 Case, Isaac 
 Chandler, Amariali 
 Chapin, Ilenry 
 Churchill, J. McKean 
 Clark, Henry 
 Clark, Ransom 
 Clarke, Sullmaii 
 Cleverly, William 
 Crane, George B. 
 Cressy, Oliver S. 
 Cross, Joseph W. 
 Cushman, Ilenry W. 
 Cushman, Thomas 
 Cutler, Simeon N. 
 Dana, Richard II., Jr. 
 Davis, Charles G. 
 Davis, Ebenezer 
 Davis, Isaac 
 Day, Gilman 
 Dean, Silas 
 Deming, Elijah S. 
 Denton, Augustus 
 Da Witt, Alexander 
 Duncan, Samuel 
 Dunham, B radish, 
 Durgin, John M. 
 Eames, Philip 
 Earle, John M. 
 Edwards, Samuel 
 
 Fay, Sullivan 
 Fellows, James K. 
 Fiske, Emery 
 Fisk, Lyman 
 Fitch, Ezekiel W. 
 Foster, Aaron 
 Foster, A brain 
 Fowle, Samuel 
 Freeman, James M. 
 French, Charles A. 
 French, Rodney 
 French, Samuel 
 Gale, Luther 
 Gardner, Johnson 
 Gates, ELbridge 
 Gilbert, Wanton C. 
 Gilbert, Washington 
 Giles, Charles G. 
 Giles, Joel 
 Gooch, Daniel W. 
 Gooding, Leonard 
 G raves, John W. 
 Greene, William B. 
 Griswold, Josiah W. 
 Hadley, Samuel P. 
 Hapgocd, Lyman W. 
 Hapgood, Seth 
 Hathaway, Elnathan P. 
 Hay den, Isaac 
 Hazewell, C. C. 
 Heath, Ezra, 2d 
 Hewes, James 
 Hillard, George S. 
 Howard, Martin 
 Ilowland, Abraham H. 
 Hunt, Charles E. 
 Huntington, Charles P. 
 Kurlbut, Moses C. 
 Jacobs, John 
 Kendall, Isaac 
 Kimball, Joseph 
 Kingman, Joseph 
 Knight, Jefferson 
 Knowlton, J. S. C. 
 Knowlton, William H. 
 Knox, Albert 
 Ladd, Gardner P. 
 Langdon, Wilber C. 
 Lawrence, Luther 
 Lawton, Job G., Jr. 
 Lincoln, Abishai 
 Little, Otis 
 Loomis, E. Justin 
 Marble, William P. 
 Marvin, Abijah P. 
 Mason, Charles 
 Header, Rueben 
 Merritt, Simeon 
 Morss, Joseph B. 
 
64th day.] 
 
 ELECTIONS BY PLURALITY. 
 
 285 
 
 Friday,] 
 
 YEAS NAYS ABSENT. 
 
 [July 22d. 
 
 Moore, James M. 
 
 Sanderson, Amaa Gculd, Robert 
 
 Newman, Charles 
 
 Morton, Elbridge G. 
 
 Sanderson, Chester 
 
 Goulding, Dalton 
 
 Noyes, Daniel 
 
 Morton, Marcus, Jr. 
 
 Sherril, John 
 
 Goulding, Jason 
 
 Oliver, Henry K. 
 
 Morton, William S. 
 
 Simmons, Perez 
 
 Gray, John C. 
 
 Orcutt, Nathan 
 
 Nash, Hiram 
 
 Simonds, John W. 
 
 Green, Jabez 
 
 Paige, James W. 
 
 Nichols, William 
 
 Smith, Matthew 
 
 Griswold, Whiting 
 
 Park, John G. 
 
 Nute, Andrew T. 
 
 Sprague, Mel/ar 
 
 Hale, Artemas 
 
 Parker, Adolphus G. 
 
 Ober, Joseph E. 
 
 Spooner, Samuel W. 
 
 Hale, Nathan 
 
 Parker, Joel 
 
 Orne, Benjamin. S. 
 
 Stevens, Granville 
 
 Hall, Charles B. 
 
 Peabody, George 
 
 Packer, E. Wing 
 
 Stevens, William 
 
 Hammond, A. B. 
 
 Perkins, Daniel A. 
 
 Paine, Benjamin 
 
 Stiles, Gideon 
 
 Harmon, Phineas 
 
 Perkins, Jonathan C. 
 
 Paine, Henry 
 
 Strong, Alfred L. 
 
 Haskell, George 
 
 Plunkett, William C. 
 
 Parris, Jonathan 
 
 Swain, Alanson 
 
 Haskins, William 
 
 Pomroy, Jeremiah 
 
 Partridge, John 
 
 Taft, Arnold 
 
 Hawkes, Stephen E. 
 
 Preston, Jonathan 
 
 Parsons, Thomas A. 
 
 Thayer, Willard, 2d 
 
 Hayward, George 
 
 Putnam, George 
 
 Peabody, Nathaniel 
 
 Thomas, John W. 
 
 Heard, Charles 
 
 Putnam, John A. 
 
 Pease, Jeremiah, Jr. 
 
 Thompson, Charles 
 
 Henry, Samuel 
 
 Read, James 
 
 Penniman, John 
 
 Tilton, Abraham 
 
 Hersey, Henry 
 
 Reed, Sampson 
 
 Perkins, Jesse 
 
 Turner, David P. 
 
 Heywood, Levi 
 
 Rogers, John 
 
 Perkins, Noah C. 
 
 Underwood, Orison 
 
 Hinsdale, William 
 
 Sargent, John 
 
 Phelps, Charles 
 
 Vinton, George A. 
 
 Hohart, Aaron 
 
 Schouler, William 
 
 Phinney, Silvanus B. 
 
 Wallace, Frederick, T. 
 
 Hobart, Henry 
 
 Sikes, Chester 
 
 Pierce, Henry 
 
 Wallis, Freeland 
 
 Holder, Nathaniel 
 
 Sleeper, John S. 
 
 Pool, James M. 
 
 Walker, Araasa 
 
 Hood, George 
 
 Souther, John 
 
 Powers, Peter 
 
 Ward, Andrew II. 
 
 Hooper, Foster 
 
 Stacy, Eben H. 
 
 Rantoul, Robert 
 
 Weston, Gershom B. 
 
 Hopkinson, Thomas 
 
 Stetson, Caleb 
 
 Rawson, Silas 
 
 Whitney, Daniel S. 
 
 Hough ton, Samuel 
 
 Stevens, Joseph L., Jr. 
 
 Rice, David 
 
 Wilbur, Daniel 
 
 Hubbard, William J. 
 
 Stevenson, J. Thomas 
 
 Richards, Luther 
 
 Wilbur, Joseph 
 
 Hunt, William 
 
 Talhot, Thomas 
 
 Richardson, Daniel 
 
 Wilson, Henry 
 
 Huntington, Asahel 
 
 Taylor, Ralph 
 
 Richardson, Nathan 
 
 Winslow, Levi M. 
 
 Jackson, Samuel 
 
 Tileston, Edmund P. 
 
 Richardson, Samuel II. 
 
 Wood, Otis 
 
 James, William 
 
 Tilton, Horatio W. 
 
 Ring, Elkanah, Jr. 
 
 Wood, William II. 
 
 Jenkins, John 
 
 Train, C. R. 
 
 Rockwood, Joseph M. 
 
 Wright, Ezekiel 
 
 Jenks, Samuel H. 
 
 Turner, David 
 
 Ross, David S. 
 
 
 Kellogg, Giles C. 
 
 Tvler, John S. 
 
 
 
 Kellogg, Martin R. 
 
 Upham, Charles W. 
 
 NAYS. 
 
 Kinsman, Henry W. 
 
 Upton, George B. 
 
 Adams, Benjamin P. 
 Aldrich, P. Emory 
 Allen, James B. 
 
 Childs, Josiah. 
 Clarke, Alpheus B. 
 Co" <T in, Jacob 
 
 Knight, Hiram 
 Knight, Joseph 
 Kuhn, George II. 
 
 Walcott, Samuel B. 
 Wales, Bradford L. 
 Walker, Samuel 
 
 Alley, John B. 
 Andrews, Robert 
 Aspinwall, William 
 Atwood, David C. 
 
 Cogswell, Nathaniel 
 Cole, Lansing J. 
 Conkey, Ithamar 
 Coolc Oimrlcs E* 
 
 Leland, Alden Warner, Marshal 
 Lincoln, Frederic W., Jr. Weeks, Cyrus 
 Littleh eld, Tristram Wetmore, Thomas 
 Livermore, Isaac Wheeler, William F. 
 
 Bancroft, Alpheus 
 Barrows, Joseph 
 Bartlett, Russel 
 
 Cooledgc, Henry F. 
 Crittenden, Simeon 
 Crockett Geor< r e AV. 
 
 Lothrop, Samuel K.. 
 Loud, Samuel P. 
 Lowell, John A. 
 
 White, Benjamin 
 White, George 
 Wilder, Joel 
 
 Bates, Eliakim A. 
 
 Crosbv, Leander 
 
 Marvin, Theophilus R. 
 
 Wilkins, John II. 
 
 Beach, Erasmus D. 
 
 Crowell, Seth 
 
 Miller, Seth, Jr. 
 
 Williams, Henry 
 
 Bell, Luther V. 
 
 Crowninshield F. B. 
 
 Mixter, Samuel 
 
 Williams, J. B. 
 
 Bennett, William, Jr. 
 Bigelow, Edward B. 
 Bliss, Gad O. 
 
 Cummings, Joseph 
 Davis, John 
 Davis, Solomon 
 
 Monroe, James L. 
 Morey, George 
 Morton, Marcus 
 
 Winn, Jonathan B. 
 Wood, Charles C. 
 Wood, Nathaniel 
 
 Bliss, William C. 
 
 Dawes, Henry L. 
 
 
 
 Bradbury, Ebenezer 
 
 Denison, Hiram S. 
 
 ABSENT. 
 
 Braman, Milton P. 
 
 Doane, James C. 
 
 Abbott, Alfred A. 
 
 Choate, Rufus 
 
 Breed, Hiram N. 
 
 Dorman, Moses 
 
 Allen, Charles 
 
 Clark, Salah 
 
 Brcwster, Osymn 
 
 Euslaud, Peter 
 
 Appleton, William 
 
 Cole, Sumner 
 
 Brinley, Francis 
 
 Eaton, Lilley 
 
 Baker, Hillel 
 
 Copeland, Benjamin F. 
 
 Briggs, George N. 
 
 Edwards, Elisha 
 
 Ballard, Alvah 
 
 Curtis, Wilber 
 
 Brown, Adolphais F. 
 
 Ely, Joseph M. 
 
 Banks, Nathaniel P., Jr. 
 
 Davis, Robert T. 
 
 Brownell, Frederick 
 
 Ely, Homer 
 
 Beebe, James M. 
 
 Dehon, William 
 
 Bullock, Rut us 
 
 Eustis, William T. 
 
 Bishop, Henry W. 
 
 Easton, James, 2d 
 
 Bumpus, Cephas C. 
 
 Farwell, A. G. 
 
 Blagden, George W. 
 
 Eaton, Calvin D. 
 
 Carter, Timothy W. 
 
 Fowler, Samuel P. 
 
 Brown, Alpheus R. 
 
 Gardner, Henry J. 
 
 Chapin, Chester W. 
 
 French, Charles II. 
 
 Buck, Asahel 
 
 Greenleaf, Simon 
 
 Chapin, Daniel E. 
 
 Frothingham, R., Jr. 
 
 Bullen, Amos II. 
 
 Hallett, B. F. 
 
286 ELECTIONS BY PLURALITY. 
 
 [64th day. 
 
 Friday,] YEAS NAYS. 
 
 [July 22d. 
 
 Hewes, William H. Royce, James C. Heard, Charles 
 
 Park, John G. 
 
 Hobbs, Edwin Sampson, George R. 
 
 Henry, Samuel 
 
 Parker, Adolphus G. 
 
 Hoyt, Henry K. Sheldon, Luther 
 
 Hersey, Henry 
 
 Parker, Joel 
 
 Huntington, George H. Sherman, Charles 
 Hurlburt, Samuel A. Stevens, Charles G. 
 
 Hewes, James 
 Heywood, Levi 
 
 Pcab:dy, George 
 Perkins, Daniel A. 
 
 Hyde, Benjamin D. Storrow, Charles S. 
 
 Hillard, George S. 
 
 Perkins, Jonathan C. 
 
 Ide, Abijah M., Jr. Stutson, William 
 
 Hinsdale, William 
 
 Plunkett, William C. 
 
 Johnson, John Sumner, Charles 
 
 Hobart, Aaron 
 
 Pomroy, Jeremian. 
 
 Keyes, Edward L. Sumner, Increase 
 
 Holder, Nathaniel 
 
 Preston, Jonathan 
 
 Knowlton, Charles L. Taber, Isaac C. 
 
 Hooper, Foster 
 
 Putnam, George 
 
 Ladd, John S. Thayer, Joseph 
 
 Hopkinson, Thomas 
 
 Putnam, John A. 
 
 Lord, Otis P. Tower, Ephraim 
 
 Houghton, Samuel 
 
 Rantoul, Robert 
 
 Marcy, Laban Tyler, William 
 
 Hubbard, William J. 
 
 Read, James 
 
 Nayson, Jonathan Yiles, Joel 
 
 Hunt, William 
 
 Reed, Sampson 
 
 Norton, Alfred Warner, Samuel, Jr. 
 
 Huntington, Asahel 
 
 Rogers, John 
 
 Osgood, Charles Waters, Asa H. 
 
 Huntington, Charles P. 
 
 Sampson, George R. 
 
 Parker, Samuel D. Whitney, James S. 
 
 Jackson, Samuel 
 
 Sargent, John 
 
 Parsons, Samuel C. Wilkinson, Ezra 
 
 James, William 
 
 Schouler, William 
 
 Payson, Thomas E. Wilson, M lo 
 
 Jenkins, John 
 
 Sikes, Chester 
 
 Prince, F. O. Wilson, Willard 
 
 Jenks, Samuel II. 
 
 Sleeper, John S. 
 
 Rockwell, Julius Woods, Josiah B. 
 
 Kellogg, Giles C. 
 
 Souther, John 
 
 Absent and not voting, 66. 
 
 Kellogg, Martin R. 
 Kingman, Joseph 
 
 Stevens, Granville 
 Stevens, Joseph L., Jr. 
 
 So this amendment was adopted. 
 The question then recurred upon the amend 
 
 Kinsman, Henry W. 
 Knight, Hiram 
 Knight, Jefferson 
 
 Stevenson, J. Thomas 
 Strong, Alfred L. 
 Talbot, Thomas 
 
 ment offered by Mr. Dana, and the yeas and nays 
 
 Knight, Joseph 
 
 Taylor, Ralph 
 
 being taken thereon, there were yeas, 169 ; nays, 
 
 Kuhn, George H. 
 
 Thoma?, John W. 
 
 182 as follows : 
 
 Ladd, John S. 
 
 Tileston, Edmund P. 
 
 
 Lincoln, Fred. W., Jr. 
 
 Tilton, Horatio W. 
 
 YEAS. 
 
 Littlefield, Tristram 
 
 Train, Charles R. 
 
 
 Livermore, Isaac 
 
 Turner, David 
 
 Adams, Benjamin P. Crockett, George W. 
 
 Lord, Otis P. 
 
 Tyler, John S. 
 
 Aldrich, P. Emory Crosby, Leander 
 Andrews, Robert Crowell, Seth 
 Aspinwall, William Crowninshield, F. B. 
 Atwood, David C. Cummings, Joseph 
 Austin, George Dana, Richard IL, Jr. 
 
 Lothrop, Samuel K. 
 Loud, Samuel P. 
 Lowell, John A. 
 Marvin, Theophilus R. 
 Meader, Reuben 
 
 TJpham, Charles W. 
 L T pton, George B. 
 Walcott, Samuel B. 
 Wales, Bradford L. 
 Walker, Samuel 
 
 Bancroft, Alpheus Davis, John 
 
 Miller, Seth, Jr. 
 
 Weeks, Cyrus 
 
 Barrows, Joseph Davis, Solomon 
 Bartlett, Russel Dawes, Henry L. 
 Bartlett, Sidney Dennison, Hiram S. 
 Beach, Erasmus D. Doanc, James C. 
 Beebe, James M. Dorman, Moses 
 
 Mixter, Samuel 
 Morey, George 
 Morss, Joseph B. 
 Morton, Marcus 
 Morton, Marcus, Jr. 
 
 Wetmore, Thomas 
 Wheeler, William F. 
 White, Benjamin 
 White, George 
 Wilbur, Daniel 
 
 Bell, Luther V. Easton, James, 2d 
 Bennett, William, Jr. Eaton, Lilley 
 Bigelow, Jacob Ely, Homer 
 Bliss, Gad O. Eustis, William T. 
 Bliss, William C. Farwell, A. G. 
 
 Noyes, Daniel 
 Oliver, Henry K. 
 Orcutt, Nathan 
 Osgood, Charles 
 
 I^HIT J^TYlP^s "\V 
 
 Wilder, Joel 
 Wilkins, John II. 
 Williams, Henry 
 Wood, Nathaniel 
 
 Braman, Milton P. Foster, Aaron 
 
 ai & c, uaiii^ft > . 
 
 
 Breed, Hiram N. - Fowler, Samuel P. 
 
 
 
 Brewster, Osmyn French, Charles H. 
 
 
 
 Brinley, Francis Frothirgham, R d, Jr. 
 
 Abbott, Josiah G. 
 
 Booth, William S. 
 
 Briggs, George N. Gilbert, Wanton C. 
 Bullock, Rufus Gould, Robert 
 
 Adams, Shubael P. 
 Allen, Joel C. 
 
 Boutwell, Sewell 
 Bradford, William J. A. 
 
 Bumpus, Cephas C. Goulding, Dalton 
 
 Allen, Parsons 
 
 Bronson, Asa 
 
 Burlingame, Alison, Goulding, Jason 
 
 Alley, John B. 
 
 Brown, Hammond 
 
 Carter, Timothy W. Gray, John C. 
 
 Allis, Josiah 
 
 Buck, Asahel 
 
 Chandler, Amariah Green, Jabez 
 
 Alvord, D. W. 
 
 Butler, Benjamin F. 
 
 Chapin, Chester W. Griswold, Whiting 
 
 Ball, George S. 
 
 Cady, Henry 
 
 Childs, Josiah Hale, Artemas 
 
 Barrett, Marcus 
 
 Caruthers, William 
 
 Clarke, Alpheus B. Hale, Nathan 
 
 Bates, Eliakim A. 
 
 Case, Isaac 
 
 Coggin, Jacob Hall, Charles B. 
 
 Bates, Moses, Jr., 
 
 Chapin, Daniel E. 
 
 Cogswell, Nathaniel Hammond, A. B. 
 
 Beal, John 
 
 Chapin, Henry 
 
 Cole, Lansing J. Harmon, Phineas 
 
 Bennett, Zephaniah 
 
 Churchill, J. McKeau 
 
 Conkey, Ithamar Haskcll, George 
 
 Bigelow, Edward B. 
 
 Clark, Henry 
 
 Cook, Charles E. Hawkes, Stephen E. 
 
 Bird, Francis W. 
 
 Clark, Ransom 
 
 Cooledge, Henry F. Hayward, George 
 
 Boutwell, George S. 
 
 Clarke, Still man 
 
64th day.] 
 
 ELECTIONS BY PLURALITY. 287 
 
 Friday,] 
 
 NAYS ABSENT HATHAWAY LORD. [July 22d. 
 
 Cleverly, William 
 
 Knox, Albert Warner, Marshal Wilson, Willard 
 
 Cole, Sunnier 
 
 Ladd, Gardner P. 
 
 Warner, Samuel, Jr. Winn, Jonathan B. 
 
 Crane, George B. 
 
 Langdon, Wilber C. 
 
 Waters, Asa H. Winslow, Levi M. 
 
 Cressy, Oliver S. 
 
 Lawrence, Luther 
 
 Weston, Gershom B. Wood, Charles C. 
 
 Crittenden, Simeon. 
 
 Lawton, Job G., Jr. 
 
 Whitney, Daniel S. Wood, Otis 
 
 Cross, Joseph W. 
 
 Leland, Alden 
 
 Wilbur, Joseph Wood, William II. 
 
 Cushman, Henry W. 
 
 Lincoln, Abi.shai 
 
 Wilson, Henry Wright, Ezekiel 
 
 Cushman, Thomas 
 
 Loomis, E. Justin 
 
 
 Cutler, Simeon N. 
 
 Marble, William P. 
 
 ABSENT. 
 
 Davis, Charles G. 
 
 Mason, Charles 
 
 
 Davis, Ebenezer 
 
 Merritt, Simeon 
 
 Abbott, Alfred A. Ide, Abijah M., Jr. 
 
 Davis, Isaac 
 
 Monroe, James L. 
 
 Allen, Charles Johnson, John 
 
 Day, Gilman 
 
 Moore, James M. 
 
 Allen, James B. Keyes, Edward L. 
 
 Dean, Silas 
 
 Morton, Elbridge G. 
 
 Appleton, William Knowlton, Charles L. 
 
 Deming, Elijah S. 
 
 Morton, William S. 
 
 Ayres, Samuel Little, Otis 
 
 Denton, Augustus 
 
 Nash, Hiram 
 
 Baker, Hillel Marcy, Laban 
 
 DeWitt, Alexander 
 
 Newman, Charles 
 
 Ballard, Alvah Marvin, Abijah P. 
 
 Duncan, Samuel 
 
 Nichols, William 
 
 Banks, Nathaniel P., Jr. Nayson, Jonathan 
 
 Dunham, Bradish 
 
 Nute, Andrew T. 
 
 Bishop, Henry W. Norton, Alfred 
 
 Durgin, John M. 
 
 Ober, Joseph E. 
 
 Blagden, George W. Parker, Samuel D. 
 
 Eames, Philip 
 
 Orne, Benjamin S. 
 
 Bradbury, Ebenezer Parsons, Samuel C. 
 
 Earle, John M. 
 
 Packer, E. Wing 
 
 Brown, Adolphus F. Payson, Thomas E. 
 
 Easland, Peter 
 
 Paine, Benjamin 
 
 Brown, Alpheus R. Prince, F. O. 
 
 Edwards, Elisha 
 
 Paine, Henry 
 
 Brown, Artemas Rockwell, Julius 
 
 Edwards, Samuel 
 
 Parris, Jonathan 
 
 Brown, Hiram C. Royce, James C. 
 
 Ely, Joseph M. 
 
 Partridge, John 
 
 Brownell, Frederick Sanderson, Chester 
 
 Fay, Sullivan 
 
 Parsons, Thomas A. 
 
 Brownell, Joseph Sheldon, Luther 
 
 Fellows, James K. 
 
 Peabody, Nathaniel 
 
 Bryant, Patrick Sherman, Charles 
 
 Fisk, Lyman 
 
 Pease, Jeremiah, Jr. 
 
 Bullen, Amos II. Stetson, Caleb 
 
 Fitch, Ezekiel W. 
 
 Penniman, John 
 
 Choatc, Rufus Stevens, Charles G. 
 
 Foster, Abram 
 
 Perkins, Jesse 
 
 Clark, Salah Storrow, Charles S. 
 
 Fowle, Samuel 
 
 Perkins, Noah C. 
 
 Copeland, Benjamin F. Stutson, William 
 
 Freeman, James M. 
 
 Phelps, Charles 
 
 Curtis, Wilbur Sumncr, Charles 
 
 French, Charles A. 
 
 Phimiey, Sylvamis B. 
 
 Davis, Robert T. Sumner, Increase 
 
 French, Rodney 
 
 Pierce, Henry 
 
 Dehon, William Taber, Isaac C. 
 
 French, Samuel 
 
 Pool, James M. 
 
 Eaton, Calvin D. Tower, Ephraim 
 
 Gale, Luther 
 
 Powers, Peter 
 
 Fiske, Emery Turner, David P. 
 
 Gardner, Johnson 
 
 Rawson, Silas 
 
 Gardner, Henry J. Viles, Joel 
 
 Gates, Elbridge 
 
 Rice, David 
 
 Greenleaf, Simon Yinton, George A. 
 
 Gilbert, Washington 
 
 Richards, Luther 
 
 Haskins, William Whitney, James S. 
 
 Giles, Charles G. 
 
 Richardson, Daniel 
 
 Hobbs, Edwin Wilkinson, Ezra 
 
 Giles, Joel 
 
 Richardson, Nathan 
 
 Huntington, George H. Williams, J. B. 
 
 Gooch, Daniel W. 
 
 Richardson, Samuel H. 
 
 Hurlburt, Samuel A. Wilson, Milo 
 
 Gooding, Leonard 
 
 Ring, Elkanah, Jr. 
 
 Hyde, Benjamin D. Woods, Josiah B. 
 
 Graves, John W. 
 Greene, William B. 
 
 Rockwood, Joseph M. 
 Ross, David S. 
 
 Absent and not voting, 68. 
 
 Griswold, Josiah W. 
 
 Sanderson, Amasa 
 
 
 Hadlev, Samuel P. 
 
 Sherril, John 
 
 So the amendment was not agreed to. 
 
 Hallett, B. F. 
 
 Simmons, Perez 
 
 The question then recurring upon ordering the 
 
 Hapgood, Lyman W. 
 
 Simonds, John W. 
 
 resolves, as amended, to their final passage, 
 
 Hapgood, Seth 
 Hathaway, Elnathan P 
 Hay den, Isaac 
 Hazewell, Charles C. 
 
 Smith, Matthew 
 Sprague, Melzar 
 Spooner, Samuel W. 
 Stacy, Eben H. 
 
 Mr. HATHAWAY called for the yeas and 
 nays thereon, and they were ordered. 
 The PRESIDENT. The gentleman from Salem, 
 
 Heath, Ezra, 2d 
 
 Stevens, William 
 
 (Mr. Lord,) has asked for a division of the ques 
 
 Hewes, William H. 
 
 Stiles, Gideon 
 
 tion, and that the question be taken separately 
 
 Hobart, Henry 
 
 Swain, Alanson 
 
 upon the several parts thereof. 
 
 Hood, George 
 Howard, Martin 
 Howland, Abraham H. 
 
 Taft, Arnold 
 Thaver, Joseph 
 Thayer, Willard, 2d 
 
 Mr. LORD. In order to avoid any imputa 
 tion of an intention to take up the time of the 
 
 Hoyt, Henry K. 
 
 Thompson, Charles 
 
 Convention, I will withdraw my call for a division 
 
 Hunt, Charles E. 
 
 Tilton, Abraham 
 
 of the question, and have the vote taken upon 
 
 Hurlbut, Moses C. 
 
 Tyler, William 
 
 the whole at once. 
 
 Jacobs, John 
 Kendall, Isaac 
 Kimball, Joseph 
 Knowlton, J. S. C. 
 
 Underwood, Orison 
 Wallace, Frederick T. 
 Wallis, Freeland 
 Walker, Amasa 
 
 The question then being upon ordering the 
 resolves, as amended, to their final passage, and 
 the yeas and nays being taken thereon, there 
 
 Knowlton, William H. 
 
 Ward, Andrew H. were yeas, 181 ; nays, 120 as folio ws : 
 
288 
 
 ELECTIONS BY PLURALITY. 
 
 [64th day. 
 
 Friday,] 
 
 YEAS NAYS. 
 
 [July 22d. 
 
 
 YEAS. Rantoul, Robert 
 
 Thomas, John W. 
 
 
 
 Rawson, Silas 
 
 Tilton, Abraham 
 
 Abbott, Josiah G. 
 
 Gooch, Daniel W. 
 
 Rice, David 
 
 Tilton, Horatio W. 
 
 Adams, Shubael 1*. 
 
 Gooding, Leonard 
 
 Richardson, Daniel 
 
 Turner, David P. 
 
 Allen, James J3. 
 
 Graves, John W. 
 
 Richardson, Nathan 
 
 Tyler, William 
 
 Allen, Parsons 
 
 Green, Jabez 
 
 Richardson, Samuel H. 
 
 Underwood, Orison 
 
 Allis, Josiah 
 
 Greene, William B. 
 
 Ring, Elkanah, Jr. 
 
 Wallace, Frederick T. 
 
 Alvord, 1). W. 
 
 Griswold, Josiah W. 
 
 Rock wood, Joseph M. 
 
 Wallis, Freelaud 
 
 Ball, George S. 
 
 Griswold, Whiting 
 
 Ross, David S. 
 
 Walker, Amasa 
 
 Bancroft, Alpheus 
 
 Hadley, Samuel P. 
 
 Sherril, John 
 
 Ward, Andrew H. 
 
 Barrett, Marcus 
 
 Hall, Charles B. 
 
 Sikes, Chester 
 
 Warner, Samuel, Jr. 
 
 Bates, Eliakim A. 
 Bates, Moses, Jr. 
 Beach, Erasmus D. 
 Bcal, John 
 Bennett, Zephaniah 
 Bigelow, Edward B. 
 Bird, Francis W. 
 Bliss, Gad 0. 
 Booth, William S. 
 Boutwell, George S. 
 Bout well, Sewell 
 Bronson, Asa 
 
 Hallett, B. F. 
 Ilapgood, Lyman W. 
 Hapgood, Seth 
 Harmon, Phineas 
 Hawkes, Stephen E. 
 Heath, Ezra, 2d 
 Hewes, James 
 Hewes, William H. 
 Hobart, Henry 
 Holder, Nathaniel 
 Hood, George 
 Howard, Martin 
 
 Simmons, Perez 
 Simonds, John W. 
 Smith, Matthew 
 Sprague, Melzar 
 Spooner, Samuel W. 
 Stacy, Ebcn 11. 
 Stevens, Graiiville 
 Stevens, Joseph L., Jr. 
 Stevens, William 
 Stiles, Gideon 
 Swain, Alanson 
 T li t -A.rnold 
 
 Waters, Asa H. 
 Weston, Ger shorn, B. 
 White, George 
 Whitney, Daniel S. 
 Wilbur, Joseph 
 Wilson, Henry 
 Wilson, Willard 
 Winn, Jonathan B. 
 Winslow, Levi M. 
 Wood, Charles C. 
 Wood, Nathaniel 
 W ood Otis 
 
 Brown, Adolphus F. 
 Brown, Artemas 
 Brown, Hammond 
 
 Rowland, Abraham II. 
 Hovt, Henry K. 
 Hunt, Charles E. 
 
 Thayer, Joseph 
 Thayer, WiUard, 2d 
 
 Woods, Josiah B. 
 
 Brownell, Frederick 
 
 Hurlbut, Moses C. 
 
 
 
 Brownell, Joseph 
 
 Kendall, Isaac 
 
 NAitt. 
 
 Bryant, Patrick 
 
 Kimball, Joseph 
 
 Adams, Benjamin P. 
 
 Farwell, A. G. 
 
 Butler, Benjamin F. 
 
 Kingman, Joseph 
 
 Aldrich, P. Emory 
 
 Fowler, Samuel P. 
 
 Cady, Henry 
 
 Knight, Jefferson 
 
 Allen, Joel C. 
 
 French, Charles H. 
 
 Carruthcrs, William 
 
 Kiiowlton, J. S. C. 
 
 Andrews, Robert 
 
 Gilbert, Wanton C. 
 
 Case, Isaac 
 
 Knowltoii, William H. 
 
 Aspinwall, William 
 
 Giles, Joel 
 
 Chandler, Amariah 
 
 Knox, Albert 
 
 Atwood, David C. 
 
 Gould, Robert 
 
 Chapin, Henry 
 
 Ladd, Gardner P. 
 
 Austin, George 
 
 Goulding, Dalton 
 
 Churchill, J. McKeaii 
 
 Lawrence, Luther 
 
 Barrows, Joseph 
 
 Goulding, Jason 
 
 Clark, Henry 
 
 Leland, Alden 
 
 Bartlett, Russel 
 
 Hale, Artemas 
 
 Clark, Hansom 
 
 Lincoln, Abishai 
 
 Beebe, James M. 
 
 Hale, Nathan 
 
 Clarke, Stillman 
 
 Loomis, E. Justin 
 
 Bell, Luther V. 
 
 Hammond, A. B. 
 
 Crane, George B. 
 
 Marble, William P. 
 
 Bennett, William, Jr. 
 
 Hathawav, Elnathan P. 
 
 Cressy, Oliver S. 
 
 Mason, Charles 
 
 Blagden, George W. 
 
 Hazewell", Charles C. 
 
 Crittenden, Simeon 
 
 Header, Reuben 
 
 Bradbury, Ebenezer 
 
 Heard, Charles 
 
 Cross, Joseph W. 
 
 Merritt, Simeon 
 
 Braman, Milton P. 
 
 Henry, Samuel 
 
 Cushman, Thomas 
 
 Moore, James M. 
 
 Brewster, Osinyn 
 
 Horsey, Henry 
 
 Cutler, Simeon N. 
 
 Morss, Joseph B. 
 
 Brinlcy, Francis 
 
 Hillard, George S. 
 
 Davis, Charles G. 
 
 Morton, Elbridge G. 
 
 Briggs, George N. 
 
 Hobart, Aaron 
 
 Davis, Ebenezer 
 
 Morton, Marcus, Jr. 
 
 Bullock, Rui us 
 
 Hopkinson, Thomas 
 
 Davis, Isaac 
 
 Morton, William S. 
 
 Buinpus Cephas C. 
 
 Hough ton, Samuel 
 
 Dean, Silas 
 
 Nash, Hiram 
 
 Carter, Timothy W. 
 
 Hubbard, William J. 
 
 Den ton, Augustus 
 
 Newman, Charles 
 
 Chapin, Chester W. 
 
 Hunt, William 
 
 De Witt, Alexander 
 
 Nichols, William 
 
 Chapin, Daniel E. 
 
 Hunting-ton, Asahel 
 
 Dunham, Bradish 
 
 Nute, Andrew T. 
 
 Coggin, Jacob 
 
 Jackson, Samuel 
 
 Durgin, John M. 
 
 Ober, Joseph E. 
 
 Cogswell, Nathaniel 
 
 James, William 
 
 Eames, Pliilip 
 
 Onie, Benjamin S. 
 
 Conkey, Ithamar 
 
 Jenkins, John 
 
 Earle, John M. 
 
 Osgood, Charles 
 
 Cook, Charles E. 
 
 Jcnks, Samuel H. 
 
 Easland, Peter 
 
 Packer, E. Wing 
 
 Cooledge, Henry F. 
 
 Kellogg, Giles C. 
 
 Eaton, Calvin D. 
 
 Paine, Benjamin 
 
 Crosby, Leander 
 
 Kinsman, Henry W. 
 
 Edwards, Elisha 
 
 Parris, Jonathan 
 
 Crowell, Seth 
 
 Knight, Hiram 
 
 Edwards, Samuel 
 
 Peabody, Nathaniel 
 
 Dana, Richard II., Jr. 
 
 Kuhn, George H. 
 
 Fay, Sullivan 
 
 Pease, Jeremiah, Jr. 
 
 Davis, John 
 
 Ladd, John S. 
 
 Fisk, Lymaii 
 
 Penniman, John 
 
 Davis, Solomon 
 
 Lawton, Job G., Jr. 
 
 Foster, Aaron 
 
 Perkins, Jesse 
 
 Dawes, Henry L. 
 
 Lincoln, F. W., Jr. 
 
 Fowle, Samuel 
 
 Perkins, Noah C. 
 
 Denison, Hiram S. 
 
 Livermore, Isaac 
 
 Freeman, James M. 
 
 Phelps, Charles 
 
 Doaiie, James C. 
 
 Lord, Otis P. 
 
 French, Rodney . 
 
 Phinney, Silvaiius B. 
 
 Dorman, Moses 
 
 Lothrop, Samuel K. 
 
 French, Samuel 
 
 Pierce, Henry 
 
 Easton, James, 2d 
 
 Loud, Samuel P. 
 
 Gale, Lather 
 
 Pool, James M. 
 
 Eaton, Lilley 
 
 Lowell, John A. 
 
 Giles, Charles G. 
 
 Powers, Peter 
 
 Ely, Homer 
 
 Miller, Seth, Jr. 
 
64th day.] AMENDMENTS OF THE CONSTITUTION, &c. 289 
 
 Friday,] ABSENT FAY GRISWOLD HALLETT. [July 22d. 
 
 Monroe, James L. Sanderson, Amasa 
 
 Royce, James C. Tower, Ephraim 
 
 Morey, George Sargent, John 
 
 Sanderson, Chester Tyler, John S. 
 
 Morton, Marcus Schouler, William 
 
 Sheldon, Luther Tiles, Joel 
 
 Noyes, Daniel Sleeper, John S. 
 
 Sherman, Charles Yinton, George A. 
 
 Oliver, Henry K. Souther, John 
 
 Stetson, Caleb W alcott, Samuel B. 
 
 Orcutt, Nathan Stevenson, J. Thomas 
 
 Stevens, Charles G. Wales, Bradford L. 
 
 Paige, James W. Talbot, Thomas 
 
 Storrow, Charles S. Whitney, James S. 
 
 Park, John G. Tileston, Edmund P. 
 
 Strong, Alfred L. Wilbur, Daniel 
 
 Parker, Adolphus G. Train, Charles R. 
 
 Stutsoii, William Wilkins, John H. 
 
 Peabodv, George Turner, David 
 
 Sumner, Charles Wilkinson, Ezra 
 
 Perkins, Daniel A. Upham, Charles W. 
 
 Sumner, Increase Williams, Henry 
 
 Perkins, Jonathan C. Upton, George B. 
 
 Taber, Isaac C. Williams, J. B. 
 
 Plunkett, William C. Walker, Samuel 
 
 Taylor, Ralph Wilson, Milo 
 
 Pomroy, Jeremiah Warner, Marshal 
 
 Thompson, Charles Wood, William H. 
 
 Putnam, George Weeks, Cyrus 
 
 
 Putnam, John A. Wetmore, Thomas 
 
 Absent and not voting, 118. 
 
 Head, James Wheeler, William F. 
 
 
 Reed, Sampson White, Benjamin 
 
 So the resolves were ordered to their final 
 
 Rogers, John Wilder, Joel 
 
 passage. 
 
 Sampson, George R. Wright, Ezekiel 
 
 Mr. FAY, of Southborough, moved that the 
 
 
 Orders of the Day be laid upon the table. 
 
 ABSENT. 
 
 The motion was agreed to. 
 
 Abbott, Alfred A. Gardner, Henry J. 
 
 
 Allen, Charles Gardner, Johnson 
 
 
 Alley, John B. Gates, Elbridge 
 
 Leave of Absence. 
 
 Applcton, William Gilbert, Washington 
 
 Mr. FAY, from the Committee upon Leave of 
 
 Ayres, Samuel Gray, John C. 
 Baker, Hillel Greenleaf, Simon 
 
 Absence, reported : 
 
 Ballard, Alvah Haskell, George 
 Banks, Nath l P., Jr. Haskins, William 
 
 COMMONWEALTH OF MASSACHUSETTS. 
 
 Bartlett, Sidney Hayden, Isaac 
 
 In Convention, July 22, 1853. 
 
 Bigelow, Jacob Hayward, George 
 
 The Committee on Leave of Absence report, 
 
 Bishop, Henry W. Heywood, Levi 
 
 that leave of absence be granted to Mr. Meader, 
 
 Bliss, William C. Hinsdale, William 
 
 of Nantucket, and Mr. Cummings, of Ware, for 
 
 Bradford, William J. A Hobbs, Edwin 
 Breed, Hiram N. Hooper, Foster 
 
 the remainder of the session. 
 
 Brown, Alpheus R. Huntiiigton, Charles P 
 
 For the Committee, 
 
 Brown, Hiram C. Huntiiigton, George II. 
 
 SULLIVAN FAY, Chairman. 
 
 Buck, Asahel Hurlburt, Samuel A. 
 
 
 Bullen, Amos H. Hyde, Benjamin D. 
 
 The Report was accepted by the Convention, 
 
 Burlingame, Alison Ide, Abijah M., Jr. 
 
 and agreed to. 
 
 Childs, Josiah Jacobs, John 
 
 
 Choate, Ruftis Johnson, John 
 
 Amendments of the Constitution. 
 
 Clarke, Alpheus B. Kellogg, Martin R. 
 Clark, Salah Keyes, Edward L. 
 
 Mr. GRISWOLD. I move that the Commit 
 
 C;everly, William Knight, Joseph 
 
 tee of the Whole be discharged from the further 
 
 Cole, Lansing J. Knowlton, Charles L. 
 
 consideration of the resolves upon the subject 
 
 Cole, Sumner Langdon, Wilber C. 
 
 of future amendments of the Constitution, and 
 
 Copeland, Benjamin F. Little, Otis 
 Crockett, George W. Littlefield, Tristram 
 Crowniiishield, F. B. Marcy, Laban 
 
 that they be placed in the Orders of the Day next 
 after the resolves upon the subject of the lieu 
 
 Cummings, Joseph Marvin, Abijah P. 
 Curtis, Wilber Marvin, Theophilus R. 
 
 tenant-governor. 
 Mr. HALLETT. I hope the motion will not 
 
 Cushman, Henry W. Mixter, Samuel 
 
 prevail, and that the gentleman will not press 
 
 Davis, Robert T. Nayson, Jonathan 
 
 it. 1 do not see why we should not have the 
 
 Day, Gilman Norton, Alfred 
 Dehon, William Paine, Henry 
 Deming, Elijah S. Parker, Joel 
 
 right to pursue the same course in relation to this 
 subject, that we do as to all others. No subject 
 
 Duncan, Samuel Parker, Samuel D. 
 
 which has come before this Convention, has been 
 
 Ely, Joseph M. Parsons, Samuel C. 
 
 taken out of the Committee of the Whole, until 
 
 Eustis, William T. Partridge, John 
 
 the Committee of the Whole has seen fit to report 
 
 Fellows, James K. Parsons, Thomas A. 
 Fiske, Emery Payson, Thomas E. 
 Fitch, Ezekiel W. Preston, Jonathan 
 
 it back to the Convention. I regard this as the 
 most important fundamental proposition that we 
 
 Foster, Abram Prince, F. O. 
 
 can put into the Constitution. It will be very 
 
 French, Charles A. Richards, Luther 
 
 easy, at the proper time, to move to go into the 
 
 Frothingham, R., Jr. Rockwell, Julius 
 
 Committee of the Whole, and then take up the 
 
290 
 
 CONSTITUTIONAL CONVENTIONS, &c. 
 
 [64th day. 
 
 Friday,] 
 
 *GlUSWOLD CUSHMAN HALE IlALLETT. 
 
 [July 22d. 
 
 subject, consider it, and then report it to the 
 Convention. 
 
 Mr. GIIISWOLD. I supposed I had the con 
 currence of the gentleman for Wilbraham, but I 
 see I have not. The Convention will recollect 
 that we have been in the Committee of the Whole 
 as many as three or four times upon this subject ; 
 and it seems to me that we might as well take the 
 remainder of the discussion upon it in the Con 
 vention, as to go into Committee of the Whole 
 again. I think that would be a saving of time. 
 I did not make the motion to prevent the gentle 
 man from offering an amendment, but because I 
 thought we might dispose of it in that way sooner 
 than we otherwise could. 
 
 On motion of Mr. WALKER, the Convention, 
 at five minutes before two o clock, P. M., ad 
 journed until three o clock, P. M. 
 
 AFTERNOON SESSION. 
 
 The Convention reassembled at three o clock. 
 
 The Convention resumed the consideration of 
 the Orders of the Day, the next item being the 
 resolves on the subject of the 
 
 Lieutenant- Governor, 
 
 The question being on their final passage. They 
 are as follows : 
 
 ART. 1. There shall be annually elected a lieu 
 tenant-governor of the Commonwealth of Massa 
 chusetts, who shall be qualified in the same man 
 ner with the governor ; and the day and manner 
 of his election, the qualifications of the voters, the 
 return of the votes, and the declaration of the 
 election, shall be the same as in the election of a 
 governor. 
 
 And the lieutenant-governor shall hold his 
 office for one year next following the first Wed 
 nesday of January, and until another is chosen 
 and qualified in his stead. 
 
 ^ ART. 2. The governor, and in his absence, the 
 lieutenant-governor, shall be president of the 
 Council, but shall have no vote in Council ; and 
 the lieutenant-governor shall always be a member 
 of the Council, except when the chair of the gov 
 ernor shall be vacant. 
 
 ART. 3. Whenever, by reason of sickness or 
 absence from the Commonwealth, or otherwise, 
 the governor shall be unable to perform his offi 
 cial duties, the lieutenant-governor for the time 
 being shall have and exercise all the powers and 
 authorities, and perform all the duties of gover 
 nor ; and whenever the chair of the governor 
 shall be vacant, by reason of his resignation, 
 death, or removal from office, the lieutenant-gov 
 ernor shall be governor of the Commonwealth. 
 
 The question being taken, it was decided in the 
 affirmative. 
 
 So the resolutions were passed. 
 
 Specie Payments. 
 
 The next item on the calendar, being the Report 
 of the Committee on Banking, that it is inexpe 
 dient to insert in the Constitution any provision 
 on the subject of the suspension of specie pay 
 ments by banks, was taken up for consideration. 
 
 The Report was concurred in. 
 
 Unrestricted Representation. 
 
 The next item, being the Report of the Com 
 mittee on the House of Representatives, that it 
 is inexpedient to insert in the Constitution a pro 
 vision, declaring that towns and cities may be 
 represented by any citizens of the Commonwealth, 
 was taken up for consideration. 
 
 The Report was concurred in. 
 
 Quorum of the House of Representatives. 
 
 The resolve relating to this subject, was next 
 taken up. The question being on inserting " one 
 hundred" in place of "a majority of the mem 
 bers," as the number which should constitute a 
 quorum. 
 
 The amendment was adopted, and the resolve 
 as amended, passed to a second reading. 
 
 Pay of Officers. 
 
 The resolve on the subject of the pay of the 
 officers of the Convention, was next taken up, 
 the pending question being on its final passage. 
 
 The resolve was passed. 
 
 Termination of Debate. 
 
 On motion of Mr. CUSHMAN, of Bernards- 
 ton, it was ordered, that debate on the resolves 
 on the subject of future amendments to the Con 
 stitution, cease in one hour after the Convention 
 shall again go into Committee of the Whole on 
 that subject. 
 
 Constitutional Conventions. 
 
 On motion of Mr. CUSHMAN, the Conven 
 tion resolved itself into 
 
 COMMITTEE OF THE WHOLE, 
 
 On the resolves on the subject of Conventions 
 for amending the Constitution, Mr. Griswold, for 
 Erving, in the chair, the pending question being 
 on the amendment proposed by the gentleman 
 for Wilbraham, (Mr. Hallett). 
 
 The amendment was read by the Secretary. 
 
 Mr. HALE, of Bridgewater, gave notice that 
 he should offer an amendment to the third re 
 solve of the original Report, as soon as he could 
 get the floor for that purpose. 
 
 Mr. HALLETT, for Wilbraham. I have ex 
 plained this proposition at some length, upon a 
 
64th day.] 
 
 CONSTITUTIONAL CONVENTIONS. 
 
 291 
 
 Friday,] 
 
 HALLETT. 
 
 [July 22d. 
 
 former occasion, and I do not mean to go over 
 any ground that I can possibly avoid. I desire, 
 simply desire, to ask those members of the Con 
 vention, who, in the first week of our existence 
 here, authorized the election of a member for 
 Berlin, and proclaimed the constitutionality of 
 this Convention, beyond the power of legislative 
 action or repeal, whether they mean now to con 
 form to that doctrine, in making this Constitu 
 tion, or whether they intend to deny it r 
 
 The proposition, as it has been reported by the 
 Committee, does not conform to that doctrine ; 
 for the reason that it makes it dependent upon 
 the action of the legislature, whether the people 
 shall have a Convention in future, or not. Nei 
 ther does the proposition of the gentleman from 
 Boston, (Mr. Giles,) who has very honorably 
 maintained the principle, meet that issue, because 
 it says the people may meet, according to their 
 will, legally expressed ; but, when you come to 
 carry out the phraseology, you find that the will 
 of the people " legally expressed," must mean a 
 declaratory act of the legislature. 
 
 The second proposition of the gentleman from 
 Boston in relation to holding a Convention every 
 twenty years, is also objectionable, for the reason 
 that it makes the people elect delegates and hold 
 a Convention, whether they desire it or not. Now, 
 I do not suppose we want a provision that shall 
 compel the people to hold a Convention, until 
 they have declared their wish to hold one. These 
 are my objections to the propositions of the gen 
 tleman from Boston, though in other respects, I 
 agree with the general proposition he has laid 
 down. 
 
 Now, Sir, I desire to remark, in relation to 
 the proposition which I have had the honor to 
 present, and which is now before the Committee 
 for their consideration, that it has been concocted 
 after a good deal of deliberation, and after con 
 sultation with a good many gentlemen who wish 
 to meet the difficulty presented in this question, 
 which is, in fact, the Rhode Island question as 
 to the right of the people to make their own Con 
 stitutions. It is a question involving the doctrine 
 whether the sovereignty is with the people or 
 with the legislature ; and the proposition I have 
 presented, is one which, I think, I can satisfy 
 the Convention, meets the question fully. 
 
 The proposition now before us is this : that at 
 the general election, in 1873, and every twentieth 
 year thereafter, the people shall give their votes 
 upon the question whether there shall be a Con 
 vention to be held in conformity to the Act of 
 1852 ? If there are any town meetings held in 
 1873 for the election of governor, then the same 
 rules and regulations which apply to that election 
 
 will also apply in talcing this vote. These votes 
 are to be received, returned, counted, and declared, 
 and if there be found a majority in favor of call 
 ing a Convention, then your Constitution will 
 declare that to be the will of the people, and a 
 Convention must be held accordingly. The dele 
 gates are then to be chosen the first Monday 
 of the March next ensuing, and are to meet at 
 the State House on the first Wednesday in May 
 ensuing, with all the powers, and under the same 
 regulations, as are provided in the Act of 1852. 
 
 There you have the whole matter in your Con 
 stitution, entirely independent of the legislature 
 or any other power, to repeal it or interfere with 
 it in any manner. It is to be in conformity to the 
 Act of 1852, which, as we all know, provides 
 that the delegates shall be chosen in the same 
 manner precisely as the representatives are chosen ; 
 so that if there are members of the House of 
 Representatives chosen under the Constitution, 
 there will be delegates to the Convention chosen 
 in the same manner. This Act also provides 
 for the promulgation of the Constitution to the 
 people, and for every proceeding, precisely like 
 the Act under which the Convention of 1820 was 
 called. Now, this Act has, during the last forty 
 years, grown into common law ; and there need 
 be, therefore, no apprehension that it will not be 
 quite sufficient to meet the wants of the case 
 twenty years hence. 
 
 The first resolution proposed to be adopted, 
 provides for submitting the question to the 
 people every twenty years ; and if gentlemen 
 want to give the people the power to call a Con 
 vention which it is not in the power of the legis 
 lature to repeal or to interfere with, here is such 
 a provision. 
 
 The next resolution provides that the legisla 
 ture shall have power to submit the question 
 whether there shall be a Convention at any other 
 time than at the regular period of twenty years. 
 The present legislature have no power to call a 
 Convention. It is not in the Constitution. They 
 assumed the power under the authority of that 
 provision, which says the legislature may pass 
 laws for the general welfare ; but we surely do 
 not mean that the legislature shall pass laws or 
 submit propositions which are not authorized in 
 the Constitution, in future. We want to place 
 the question of the constitutionality of the legis 
 lature to call a Convention beyond a doubt, by 
 placing a provision directly to that effect in the 
 Constitution , and here it is in this second reso 
 lution. Well, Sir, when the legislature puts out 
 a proposition for calling a Convention, and the 
 people accept it, do you want to place it in the 
 power of the next legislature to come in and 
 
292 
 
 CONSTITUTIONAL CONVENTIONS. 
 
 [64th day. 
 
 Friday/ 
 
 HALLETT. 
 
 [July 22d. 
 
 upset all the people have done ? We denied that 
 doctrine here in this Convention ; we said that 
 the legislature had no right to repeal what a 
 former legislature had done, after the people had 
 given vitality to the proposition by their accept 
 ance of it. But, Sir, what said the learned gen 
 tleman from Boston, (Mr. Choate,) when the 
 Convention had the Berlin matter under consid 
 eration, on the 12th of last May. Let me quote 
 from the remarks of that learned gentleman : 
 
 " I repeat it, then : the historical fact is, that 
 the people expressed themselves in favor of a 
 Convention, and there they paused. What does 
 that pause imply ? This exactly that they there 
 upon leave it to their actual legislature, xmder 
 the existing Constitution, to go on, in its own 
 way, on its own responsibility, and to make a 
 law or laws, by which the popular vote for a 
 Convention may be carried out. Under that 
 repose, under that inaction of the people, after 
 that manifestation of their will in that general 
 form, it became a matter for mere law in its ordi 
 nary course, to devise and enact details ; and 
 thereupon the legislature made a law of details; 
 amendable, like any other law, by another legis 
 lature ; their successors amended it, and under 
 the law thus amended, we are here to-day." 
 
 That is the view taken by the gentleman from 
 Boston ; that when the legislature put out this 
 proposition, and the people said " ye.s," it was 
 simply saying that they would have a Conven 
 tion, and that they then left it to the legislature 
 to regulate its details, and that therefore, it being 
 a simple law, a subsequent legislature might 
 amend, or might repeal it. 
 
 Now, what does the still more learned, though 
 not so eloquent, gentleman from Cambridge, (Mr. 
 Parker,) the able professor of Harvard College, 
 say ? In what way did he meet our arguments 
 in support of the validity of this Convention? 
 lie said : 
 
 " What is the consequence of this ? Just the 
 whole matter in dispute, Sir. I do not under 
 stand the honorable member for Wilbraham to 
 maintain that this Act is a part of the Constitu 
 tion, or that it stands as an amendment to the 
 Constitution ; but he says that it is something 
 which the legislature cannot touch, because the 
 people have acted upon the subject. Well, Sir, 
 if I am correct in what I have said ; if it stands 
 as a law of the legislature ; if it was a law of the 
 legislature in its inception, and is nothing more 
 than a law of the legislature still, notwithstand 
 ing, by its terms, it required the answer of the 
 people before the last part of it should take effect, 
 and have any efficacy at all; if it stands, like 
 other laws of the legislature, as a constitutional 
 law, then, Sir, it is in the power of the legisla 
 ture, just like other laws. The people of this 
 Commonwealth have constituted the legislature 
 
 their agents, for the purpose of enacting laws, 
 and for the purpose of repealing laws." 
 
 Again, he says : 
 
 " I say it was legally competent for the legisla 
 ture, at the time they modih ed that law, to have 
 repealed it totally, so far as it stood a law upon 
 the statute book, to have put an end to all farther 
 action under it. It might have been done legally. 
 I do not say that a revolution might not have 
 occurred in consequence of such, a proceeding ; 
 that is another tiling. I am aware, Sir, that such 
 a disregard of the will of the people might justify 
 a resort to force ; but that is another thing. As 
 a law upon the statute book, having the force 
 and vigor of a law upon the statute book, and no 
 more, the legislature have the same power over 
 it which they have over any other law, and they 
 might have repealed it if they had seen fit to do 
 so. Why did they not do it? Because they 
 ought not to ; because it was not proper, under 
 the circumstances, that they should exercise that 
 power, and they exercised their power in a way 
 that they did think proper. I maintain farther, 
 Sir, and I am willing to place myself upon the 
 issue, that this Convention sits here to-day under 
 that as a statute law, and nothing more ; and the 
 legislature being still in session here, may consti 
 tutionally and legally put an end to the existence 
 of this Convention as a body assembled under the 
 Constitution and under law, before that session 
 closes. [Sensation.]" 
 
 Here the reporter well says, " sensation" 
 There was a sensation. When the learned pro 
 fessor announced that the legislature then in ses 
 sion had the power, by a repeal of the Act calling 
 the Convention, to turn us out of doors, there 
 was a great sensation in this body. But now, 
 when we come in here and propose a remedy for 
 such a state of things occurring in the future, the 
 only sensation it produces seems to be to have the 
 subject disposed of as soon as possible. Sir, 
 ought we to leave the Constitution without some 
 provision clearly defining what are the powers of 
 the legislature upon this subject ? When a learned 
 professor of law comes in here, and, with his legal 
 reputation, asserts that the Convention are mere 
 puppets in the hands of the legislature, to be 
 turned out of doors at the pleasure of our masters, 
 it follows, if you pass only the provision reported 
 by your Committee, that the Convention intends 
 to legalize the argument ; for if the legislature are 
 to pass a law to provide for a Convention, it fol 
 lows that they merely pass a law which any sub 
 sequent legislature may repeal ; and if it be so, 
 does it not place the Convention in the hands of 
 that subsequent legislature? We held, in the 
 Berlin argument, that if the legislature submitted 
 a proposition for holding a Convention, to the 
 people, which the people accepted, by their votes 
 of yea upon it then it was not a repealable law, 
 
64th day.] 
 
 CONSTITUTIONAL CONVENTIONS. 
 
 293 
 
 Friday,] 
 
 HALLETT. 
 
 [July 22d. 
 
 but the will of the people collected, and that a 
 subsequent legislature could not touch it or repeal 
 it. But if you take the proposition as it stands 
 in the Report of the Committee, which leaves it 
 for the legislature to submit the proposition to 
 the people in the first place, and then leaves it to 
 the legislature to provide for holding the Conven 
 tion, it will also leave it in the power of the legis 
 lature to repeal the Act calling the Convention, 
 if they think proper. Do gentlemen mean to do 
 that ? I think not. No\v, my substitute says 
 that the question shall go to the people as a whole. 
 If the people vote affirmatively upon it, there is 
 an end of the matter. The Convention lives. 
 The action is complete, and the legislature can 
 usurp no power whatever over it. 
 
 Then, the third clause provides for the general 
 security of the right of the people to hold a Con 
 vention, merely negativing any concession of that 
 right, and that, I think, covers the whole ground. 
 
 Now, Mr. Chairman, there is a very high legal 
 decision upon this point, which we must either 
 resist by force of arms hereafter, or we must 
 amend our Constitution so as to preserve this 
 right, which the court practically has denied, 
 or give up the right of the people to hold Con 
 ventions without the previous consent of the leg 
 islature. We must amend the Constitution, in 
 order to secure the people against that decision of 
 the United States court. We must do it, or the 
 people have lost the power of calling a Conven 
 tion without the consent of the legislature. Un 
 less you put this or a similar provision in your 
 Constitution, you recognize the doctrine of the 
 United States supreme court, that the people have 
 lost the power of calling a Convention, without 
 the consent of the legislature. I state this point 
 distinctly, from the record. A case arose in the 
 supreme court of the United States, in 1849, 
 which will decide the matter now before us, against 
 the people, unless we make provision to the con 
 trary. The case in point has occurred where 
 there were two governments in existence, as there 
 were in llhode Island ; one a government of the 
 freeholders, which persisted in holding its power 
 against the people, under the old Charter of the 
 King of England, and the other a Constitution and 
 government framed by a Convention called by a 
 large majority of the whole voters and of the 
 whole people where there were two Constitu 
 tions and two legislatures ; and there the question 
 was, which was the legal government? Well, 
 Sir, how did they proceed ? The advocates of the 
 people s government went before the court and 
 showed that a majority of seven thousand of the 
 people of Rhode Island had voted in favor of that 
 new Constitution, and they offered to produce the 
 
 testimony or deposition of every voter, in proof. 
 But what did the supreme court say to that ? 
 They said, all that might be very true, but it 
 could not be admitted as entitled to any weight 
 in deciding the question, because there was no 
 law and no Constitution under which that vote 
 was taken. There was no authentic Act by law 
 to collect the will of the people, and therefore the 
 people could never legally show they had any 
 will! 
 
 That was the argument of the counsel for the 
 charter government against the people, and it was 
 an argument which the court evaded, by disclaim 
 ing jurisdiction, while at the same time they vir 
 tually affirmed it, and thus assumed that there 
 must be some law or some constitutional pro 
 vision to collect the will of the people, or they 
 cannot speak. The will of the people is supreme, 
 they all say, whenever you find it out ; but in 
 order to find it out, you must get a grant of a 
 previous law from the legislature, or put some 
 provision in your Constitution to collect it. If you 
 have no such law, the will of the people goes for 
 nothing. They can, in fact, have no will. Hence, 
 unless you put into your organic law a provision 
 to collect the will of the people, it is all nonsense 
 about making government, that you read 111 the 
 Bill of Rights ; and the courts and bayonets 
 will put it down if you move a step. Now, do 
 we wish to have a Constitution that is liable to 
 any such legal construction r Why, Sir, if the 
 person had been president of the United State?, 
 who failed of being elected in 1852 if General 
 Scott had been president of the United States, the 
 law by which this Convention is sitting here to 
 day would have been repealed by the legislature 
 of last winter, who went as far as they could go, 
 without resort to arms ; and if the people had 
 undertaken to have elected their delegates, and 
 those delegates had met here in the State House, 
 the governor of the Commonwealth, who, in his 
 message, declared the Convention unconstitu 
 tional, or at least of doubtful constitutionality, 
 would have called upon the president of the 
 United States, and officially informed him that 
 there was an insurrection here, and the army and 
 navy of the United States would have been sent 
 here to put it down, and we should not have had 
 a Convention, unless we fought for it. That is 
 what the supreme court of the United States have 
 adopted as the rule of the judicial power follow 
 ing the political power. It all depends upon who 
 is president. 
 
 Now, do you want to leave posterity in the 
 same condition, subject to the military despotism 
 of a president of the United States ? If you do, 
 say so. Say it fairly, out and out, and provide 
 
294 
 
 CONSTITUTIONAL CONVENTIONS. 
 
 [64th day. 
 
 Friday,] 
 
 HALLE rx BURLIXGAM 3. 
 
 [July 22d. 
 
 that the people shall hold Conventions only ac 
 cording to the sovereign will of the legislature, 
 and strike that unmeaning article about the 
 right to frame government, out of the Bill of 
 Eights. 
 
 Now here is a principle which was laid down 
 by the United States court, though dissented 
 from, in effect, by the learned judge, now no 
 more Judge Woodbury but carried out by the 
 majority of the court. It is a principle which 
 would leave us nothing but simple revolution, 
 to reform or change government, under our pres 
 ent Constitution. They admit, the judges admit 
 the power of the people, but how do they say it 
 must be exercised? I read from Howard s Re 
 ports of the Supreme Court of the United States, 
 the note of the points in the two cases of " Mar 
 tin Luther vs. Luther M. Borden, et al," and 
 " Rachel Luther vs. Borden." 
 
 " At the period of the American Revolution, 
 Rhode Island did not, like the other States, adopt 
 a new Constitution, but continued the form of 
 government established by the Charter of Charles 
 II., making only such alterations, by acts of the 
 legislature, as were necessary to adapt it to their 
 condition and rights as an independent State. 
 
 "But no mode of proceeding was pointed out 
 by which amendments might be made. 
 
 " In 1841, a portion of the people held meetings, 
 and formed associations which resulted in the 
 election of a Convention to form a new Constitu 
 tion, to be submitted to the people for their adop 
 tion or rejection. 
 
 " The Convention framed a Constitution, di 
 rected a vote to be taken upon it, declared after 
 wards that it had been adopted and ratified by a 
 majority of the people of the State, and was the 
 paramount law and Constitution of Rhode Island. 
 
 "Under it, elections were held for governor, 
 members of the legislature and other officers, who 
 assembled together in May, 1842, and proceeded 
 to organize the new government. 
 
 "But the charter government did not acquiesce 
 in these proceedings. On the contrary, it passed 
 stringent laws, and finally passed an act declaring 
 the State under martial law. 
 
 " In May, 1843, a new Constitution which had 
 been framed by the charter government, went 
 into operation and has continued ever since." 
 
 I now read from the opinion of the court, as 
 far as it can be said to be an opinion, delivered by 
 chief justice Taney : 
 
 " No one, we believe, has ever doubted the 
 proposition, that, according to the institutions of 
 this country, the sovereignty of every State resides 
 in the people of the State, and that they may 
 alter and change their form of government at 
 pleasure. But whether they have changed it or 
 not, b ; abolishing an old government, and estab 
 lished a new one iu its place, is a question to 
 be settled by the political po * er. And when 
 
 that power has decided, the courts are bound to 
 take notice of its decision and folio wit." 
 
 Again, it is said in that report, as a consequence 
 of the above : 
 
 " If it be asked, what redress have the people, 
 if wronged in these matters, unless by resorting 
 to the judiciary, the answer is, they have the same 
 as in all other political matters. In those they 
 go to the ballot-boxes, to the legislature, or 
 executive, for the redress of such grievances as 
 are within the jurisdiction of each; and, to 
 such as are not, to Conventions and amend 
 ments of Constitutions. And when the former 
 fail, and these last are forbidden by statutes, all 
 that is left in extreme cases, where the suffering 
 is intolerable, and the prospect is good of relief 
 by action of the people without the forms of law, 
 is to do as did Hampden and Washington, and 
 venture action without these forms, and abide the 
 consequences." 
 
 Now, Sir, I do not want that the people of 
 Massachusetts should hereafter be compelled to 
 resort to any such measures as that ; and I have, 
 therefore, submitted this series of provisions, 
 recognizing the right of the people to alter and 
 amend their Constitution without any previous 
 action, or subsequent interference of the govern 
 ment. There is the whole argument. I have 
 not time to dwell any longer upon this subject 
 than to say that the doctrine of the supreme 
 court of the United States, and many very emi 
 nent and learned lawyers of this State is, that 
 the people cannot take the first step in reforming 
 the Constitution, or holding a Convention, unless 
 they get a grant of an act from the legislature, or 
 incorporate such a provision in their Constitutions 
 as is here proposed ; and that if they move with 
 out that first step emanating from the legislature, 
 unless it is provided for in detail in the Constitu 
 tion, they move in rebellion or revolution. This 
 provision, then, wholly independent of legislation, 
 is the only peaceful mode of reaching that result. 
 There is 110 inconvenience that will follow from 
 it whatever. It gives you all you desire, for re 
 forming the Constitution, and there leaves it. I 
 do earnestly hope that there will be no hesitation 
 on the part of the majority of this Convention, 
 in placing that amendment in the Constitution, 
 if they mean to stand upon the principles that 
 moved the people to call this Convention, and 
 thereby to recognize, in the organic law, practically, 
 as well as by a theory which the courts construe 
 away, the legitimate, inalienable, and operative 
 sovereignty of the people. 
 
 Mr. BURL1NGAME, for Northboro . Mr. 
 Chairman : Since our sittings commenced, we have 
 had under consideration a great number of grave 
 questions ; questions involving the power ot this 
 
64th day.] 
 
 CONSTITUTIONAL CONVENTIONS. 
 
 295 
 
 Friday,! 
 
 BuilLINGAME. 
 
 [July 22d. 
 
 Convention, derivative, and inherent; questions 
 touching the quality of a legislative enactment ; 
 questions touching the nature of a fundamental 
 law ; questions as to how these differ, how one 
 transcends the other, as the Creator transcends the 
 creature. But I maintain that this is the grand 
 est question, in some respects, upon which we 
 have been called to pass since our deliberations 
 commenced ; and yet we have but one hour, in 
 which to consider it. 
 
 As I differ upon this subject, from some gen 
 tlemen who have preceded me, I wish to have 
 that difference known. I wish to give some rea 
 sons, to show why we ought to adopt the amend 
 ment, proposed by my friend for Wilbraham, 
 (Mr. Ilullett). And preliminary, I start with the 
 great doctrine, that the people are the source of 
 power. I hope the Committee, when I say this, 
 will not tremble, because they may fear a speech 
 upon abstractions. When I say the people are 
 the source of power, I mean the term " people " 
 shall include every human being in whom the 
 good God has breathed the breath of life. If it 
 is admitted that the people are the source of pow 
 er and anybody who denies this, Mr. Webster 
 said, must argue without an adversary then the 
 next question is, how shall this power flow forth 
 from the people into practical government? In 
 the first place, as the people cannot act in their 
 primary capacity, it is necessary to delegate their 
 power ; and in the absence of government, and 
 when it has been overthrown by revolution, they 
 must act by spontaneous movement, according to 
 their common sense, and according to the meas 
 ure of their civilization. They must delegate 
 their power, and they must clothe their agents 
 with authority, and charge them with the great 
 duty of giving their collected will expression in 
 a Constitution. When they have done tins, and 
 when the work which these agents may do, shall 
 have been accepted by the people, it becomes the 
 fundamental law of the state. 
 
 Now, we have the machinery of government. 
 According to the delegate system on the Ameri 
 can principle, that the people are the source of 
 power, how shall we put it into operation ? Ne 
 cessity gave birth to another American idea the 
 representative system. The representative is 
 inferior to the delegate, in that he is charged 
 with the duty of performing ordinary legislation ; 
 and all he does, he must do under, and in obedi 
 ence to the Constitution, which the delegates, rep 
 resenting the will of the people, have made. We 
 have, then, two great American systems upon the 
 American principle that the people are the source 
 of power. So far, I suppose we all go along togeth 
 er. Here, our paths must separate. The question 
 
 now arises, how are the people to change their 
 fundamental law, when it is thus established ? 
 There are two schools in this country, and this 
 is the doctrine of one of them : inasmuch as the 
 people are the source of power, inasmuch as the 
 people are sovereign, inasmuch as that sovereignty 
 cannot be alienated by them, in such a manner 
 that it cannot be resumed when the safety of the 
 state shall require it, then, I say, it is for the 
 people to determine in what manner, and at what 
 time, they shall change their fundamental law. 
 That is the doctrine of one school the Democratic 
 school and it is the doctrine to which I give my 
 hearty assent. On the other hand, there is an 
 other school in this country, and there always 
 has been, and there always will be, probably, 
 which, while it admits in the abstract, that the 
 people are the source of power, and are sovereign, 
 yet denies the right to that sovereign power, prac 
 tically to act in a sovereign manner. 
 
 The doctrine of this party was stated most 
 clearly by Mr. Webster, in the great Khode Isl 
 and case, with the power of statement peculiar 
 to that man. This is the doctrine of that party, 
 as stated by him : the collected will of the people 
 is sovereign as sovereign, he said, as the will of 
 the Czar of Muscovy, when it is ascertained, and 
 this is his rule for ascertaining it. The will must 
 be collected legally, by some rule prescribed by 
 previous law. Do you not see, at a glance, that 
 a wide ocean rolls between these two doctrines ? 
 One places the power to initiate a change in the 
 fundamental law, in the legislature ; and the other 
 places it with the people. 
 
 One is the doctrine as laid down by the allied 
 sovereigns at Laybac, when they contended that 
 all reforms must proceed from the ruler ; and they 
 had the impiety to say that they had the Divine 
 authority for withholding or granting, all rights 
 and privileges, from, and to, the people. The 
 other is the American doctrine, born here on this 
 continent, on board the Mayflower, a little more 
 than two hundred years ago, when it fluttered its 
 weary wing into Massachusetts Bay. The other 
 is as old as tyranny ; it has stained a thousand 
 years with its crimes, and cannon may be thun 
 dering to-day on the banks of the Danube, in 
 its defence. Gentlemen may say that you can 
 leave this matter safely to the legislature. They 
 say when the people wish a change of their laws, 
 the legislature will understand it, and will sub 
 mit the question to the people. It has become 
 convenient, I confess, in this country, to allow 
 the legislature to collect the popular will, and 
 that mode will probably be adhered to. But 
 suppose the legislature refuse to collect the pop 
 ular will, then what are you to do ? You say it 
 
296 
 
 CONSTITUTIONAL CONVENTIONS. 
 
 [64th day. 
 
 Friday,] 
 
 BUIILINQAME. 
 
 [July 22d. 
 
 will not refuse. I say it may, and there is a 
 precedent that it will sometimes do so ; I refer to 
 the case of Rhode Island. There the people 
 struggled for sixty-five years, to get a change of 
 their Constitution, but the power being in the 
 hands of a few landholders, the legislature re 
 fused perpetually to act. They were driven to 
 act outside of the Constitution. They collected the 
 will of the majority of the legal voters, and seven 
 thousand majority of the adult male population ; 
 but then the court, subsequently, when the case 
 was tried, said it could not take evidence of these 
 irregular proceedings. 
 
 There happened to be, at that time, as the gen 
 tleman for Wilbraham said, an accidental presi 
 dent in the chair at Washington ; and, what is 
 of much more consequence, he had at his right ear 
 a man with brains enough to have made ten thou 
 sand such accidental presidents, belonging to the 
 opposite school upon this subject ; and by his 
 advice the president of the United States instructed 
 the officers of the United States government to 
 sustain the old government in Rhode Island ; 
 and when this was done when the United States 
 came with its whole po vver the arm of democ 
 racy in that State was unnerved ; though if one 
 gun had been iired, the whole country might have 
 rallied to its defence. It may be better that they 
 yielded that they bided their time, and sought a 
 peaceful solution of their difficulties. In the case 
 of Michigan, when that hardy Democrat, General 
 Jackson, occupied the chair of state, the territorial 
 government refused to call a Convention, and 
 the people assembled in their counties ; they 
 elected delegates ; they had a Convention ; they 
 made a Constitution ; they inaugurated a gov 
 ernment under it. The government of the Uni 
 ted States sent a governor there, but they did 
 not heed him ; they laughed him out of the State, 
 and he has never been heard of since. Then they 
 applied to the general government for admission 
 into the Union at that time I was a resident of 
 of the State General Jackson commended the 
 course pursued by us, and the Democrats of the 
 United States Senate, twenty- seven in all, under 
 the lead of Old Bullion, backed up the conduct 
 of the people of Michigan, and she was admitted 
 as a State ; and I remember with what pride I 
 saw her beautiful banner unfurled for the first 
 time, bearing the somewhat boastful motto, 
 though veiling it under a dead language: ",SY 
 quarts Peninsulam amocnam circumspice" which 
 freely rendered, is, " If you seek a beautiful 
 peninsula, look around you." I have now stated 
 the two opposing doctrines, and I have given you 
 two precedents illustrating them. 
 
 You have in. the Rhode Island case the decision 
 
 of the supreme court, inclining to the federal 
 side upon this subject. Yet, in the face of all 
 this, gentlemen may say that there is no necessity 
 for incorporating such a provision as is heie pro 
 posed, into the Constitution ; that it is enough to 
 acknowledge that the people are the source of 
 power ; that they are sovereign ; but I say it is 
 of no earthly use and I say this, having refer 
 ence to the decision of the supreme court in 
 the Rhode Island case unless you determine 
 how this sovereignty shall exercise that power. 
 It is because of these things, that I am in favor of 
 the amendment proposed by the delegate for 
 Wilbraham, (Mr. Hallett). I desire to incorpo 
 rate into the fundamental law, I desire to put 
 into the unbending text, something that shall be 
 so clear and certain upon this sxibject that there 
 cannot be any constitutional doubt about it ; so 
 that we shall not hold our Conventions upon any 
 such accidental circumstance, as whether General 
 Scott or Franklin Pierce happens to be president 
 of the United States ; so that we shall not have 
 held over us, in tcrrorem, the opinion of a su 
 preme court in this State, ready to give the benefit 
 of that doubt to the doubter. I am, therefore, in 
 favor of placing in the Constitution, in substance, 
 the amendment of the delegate for Wilbraham 
 (Mr. Hallett). 
 
 The first part, if I understand it, executes itself. 
 If the selectmen of any town refuse to receive 
 my vote, or the vote of any man, they are liable 
 to punishment. The second part of the resolve 
 clothes the legislature with the power of submit 
 ting to the people the proposition for a Conven 
 tion. It does not limit the people, but only the 
 servants of the people, as the people cannot limit 
 themselves. It gives the legislature power to 
 submit the question to the people, and that will 
 be its warrant for acting ; and when the question 
 is submitted, and the people have voted, that 
 closes the question as far as the legislature is con 
 cerned. Then men cannot come here in the face 
 of this language and say that they have a right to 
 repeal that enactment or fundamental law of the 
 people, and force the people of Massachusetts 
 into revolution. By adopting this proposition, we 
 shall have a peaceful and proper mode by which 
 we can change our fundamental law. The last 
 part of the proposition is of more importance, it 
 may be, than all the other propositions. 
 
 It declares, clearly and distinctly, the doctrine 
 of the democratic school for the first time in 
 Massachusetts ; that the people are the source of 
 power ; that they cannot alienate that power ; and 
 that it is for them to determine at what time and 
 in what manner they will change their funda 
 mental law. Men may say that it is not neces- 
 
64th day.] 
 
 CONSTITUTIONAL CONVENTIONS. 
 
 297 
 
 Friday,] 
 
 BURLINGAME HALE BRIGGS. 
 
 [July 22d. 
 
 sary to declare this great right of the people. 
 That it exists. Then I submit that it was not 
 necessary to have the Magna-Charta, the Bill of 
 Rights, or Declaration of Independence. I say 
 it is necessary, when the people have achieved a 
 right, to put it into the unbending text, so that 
 men who believe in law merely because it is law, 
 will not deny it, and so that others may stand by 
 it because of its merits. 
 
 I do not wish to prolong my remarks. I have 
 taken up too much time already, but it seems to 
 me this is the most important question, in some 
 respects, that we have had before us. I am 
 earnestly desirous that the proposition of the 
 delegate for Wilbraham, (Mr. Hallett,) in some 
 form, should pass. 
 
 Mr. HALE, of Bridgewater. This question, 
 Mr. Chairman, has assumed more importance 
 than was contemplated, I apprehend, by the Con 
 vention, when they decided to limit the discussion 
 to one hour. I believe three- fourths of that time 
 has already expired ; taken up by two gentlemen 
 in favor of the amendment proposed by the gen 
 tleman for Wilbraham, which he stated the other 
 day was a vital one to be decided by this Conven 
 tion. I presume that the Convention do not de 
 sire to determine this question under the discus 
 sion which has been had. I therefore move that 
 the Committee now rise and report progress, for 
 the purpose of moving a reconsideration of the 
 vote limiting the debate to one hour. I trust 
 that the Convention will see the propriety of 
 adopting that course, so as to give some opportu 
 nity, at least, to discuss a question of this magni 
 tude. 
 
 The motion that the Committee rise was not 
 agreed to. 
 
 Mr. HALE. I now propose, if it is in order, 
 to move an amendment to the third resolution. 
 I do not propose to discuss it. I move to strike 
 out the word "majority," wherever it occurs, 
 and insert the words " two-thirds." 
 
 The language of the resolution is, " a majority 
 of the whole number of senators and representa 
 tives." That, I suppose, would be a majority of 
 the whole number assembled in Convention. I 
 propose to strike out the word " majority " and 
 insert " two-thirds," so that it will be two-thirds 
 of the senators and of the representatives. 
 
 Mr. B1UGGS, of Pittsfield. Does not that 
 open up the whole question ? 
 
 The CHAIRMAN. I suppose it does. 
 
 Mr. BRIGGS. I concur in the view taken by 
 the two gentlemen who have preceded me, in the 
 idea that this is an important question, and one 
 which we ought to enter upon with great gravity, 
 and candor, and consideration. We propose here, 
 
 20 3 
 
 as in other parts of the Constitution, not only to 
 bind ourselves, but to bind those who shall come 
 after us, and prescribe the manner in which that 
 sovereign will of the people, that has been so often 
 alluded to, shall be exercised. The Report of the 
 Committee and I very much regret that the 
 chairman is not here prescribes one mode of ob 
 taining future amendments of the Constitution. 
 The gentleman for Wilbrahara, (Mr. Hallett,) 
 prescribes another mode. What are they ? The 
 first prescribes that in twenty years from this 
 time, and in each succeeding twenty years, the 
 question shall be submitted to the people, " Shall 
 there be a Convention to revise and alter the Con 
 stitution ? " that if the people so determine, their 
 legislature their legislature shall call a Conven 
 tion in such, manner as they shall deem wise 
 and proper. Lest under any circumstances the 
 legislature should fail to do its duty, the second 
 resolution, provides the manner in which that 
 purpose shall be accomplished. Then there is a 
 third resolution, that provides that the legislature 
 may propose amendments to the people, there 
 being a majority in favor of it for two successive 
 years, and that the people shall act upon these 
 propositions ; and, if adopted, their amendments 
 shall become part of the Constitution of the Com 
 monwealth. 
 
 The gentleman for Wilbraham provides, by his 
 amendment, that once in twenty years the people 
 shall be called upon to vote on what ? Mark, Sir, 
 and I call upon every gentleman who hears me, 
 to mark and note in what respect we propose to 
 hold the opinions of those, and the rights of those, 
 that shall succeed us, not merely that they shall 
 have a Convention, but shall have a Convention 
 to be held, not as their legislature may prescribe,, 
 but as the legislature of 1852 have prescribed. 
 That is the regard which is had for the opinions 
 and rights of the people. Sir, with one effort it is 
 proposed to do what, so far as I know, never has 
 been done by any body like this to incorporate 
 into a Constitution, the fundamental, lasting law 
 of your land, an entire statute. What becomes 
 of the will and independence of that people of 
 whom my young friend from Northborough dis 
 coursed so eloquently ? You may have a Conven 
 tion if you will have it according to the law of 
 1852. And, perhaps there is a construction of 
 this provision which makes it include the amend 
 ment of that law passed last winter. The gen 
 tleman did not mean to do that ; but, perhaps, 
 by a construction of that Constitution, as courts 
 construe statutes, it might perchance impose upon 
 the people the duty of holding the Convention ac 
 cording to both statutes ; for one is an amendment 
 of the other, and, in law, a part of the statute. 
 
298 
 
 CONSTITUTIONAL CONVENTIONS. 
 
 [64th day. 
 
 Friday,; 
 
 BlUGGS. 
 
 [July 22d. 
 
 Now, shall we do tins ? I appeal through you, 
 Mr. Chairman, to every delegate who hears me, 
 whether he intends, by his vote here, to impose 
 upon those who shall succeed us when we shall 
 be silent in the grave, a condition that if they 
 want a Convention to amend the Constitution, it 
 shall be held according to, and in compliance with, 
 a statute of Massachusetts passed in 1852 r Sir, 
 was such a thing ever heard of ? I hope gentle 
 men will pause before they undertake to lay such 
 a burden as this upon those who are to come after 
 us. I say nothing of the wisdom of that statute, or 
 otherwise. That is immaterial. It may be the 
 wisest statute ever passed ; but, if succeeding gen 
 erations want a Convention to alter their Constitu 
 tion, provide for them the greatest facilities to get 
 it ; but in Heaven s name leave to them and their 
 own legislature to provide in what manner they 
 will have it, and how it shall be brought on ; leave 
 open before them, in the broadest possible manner, 
 every right and every facility to call a Convention 
 and alter their Constitution in any mode they 
 please ; but do not undertake to impose upon them 
 a statute an entire statute with all its pro 
 visions, as one of the conditions under which that 
 Convention is to be held. 
 
 The gentleman points to a provision here as to 
 the number of delegates that towns shall be en 
 titled to, not exceeding the number of representa 
 tives to which each town or city was entitled last 
 year. So, Sir, of all these provisions, as I said 
 before I do not care what they are was it ever 
 heard from the beginning of free governments to 
 this time, that a Convention should undertake to 
 impose upon those that should come after them, 
 not only that they should have a right to have a 
 Convention, but how that Convention should be 
 called, by whom the delegates should be chosen, 
 and all the arrangements about it? And, jet, 
 Sir, here you have it ; and you have it from a 
 gentleman who proclaims over and over again his 
 regard for the sovereign rights of the people ; and 
 he proposes to protect the sovereign rights of future 
 people by providing that they shall never have a 
 Convention except they comply with the statute 
 of 18 o 2. Well, gentlemen, in the name of reason, 
 in the name of that liberty of which gentlemen 
 talk, in the name of that sovereignty before which 
 they bow, I ask whether you will do this ? 
 
 Then, Sir, the gentleman s amendment provides 
 that each legislature, every year, may, if they 
 choose, put the question to the people, whether 
 they will have an alteration of the Constitution. 
 Well, Sir, that is providing facilities by which 
 every change of party, every swelling political 
 wave that changes the administration of the gov 
 ernment of the State, may lead to a call upon the 
 
 people to say whether they will alter their fun 
 damental law. If you think that better and 
 wiser, than to have the legislature propose amend 
 ments between these periods of twenty years, I am 
 content with it. 
 
 Mr. HALLETT. Will the gentleman allow 
 me to ask, whether I understood him to say that 
 we do not allow the legislature to pass amend 
 ments ? 
 
 Mr. BRIGGS. No, Sir. It allows the legis 
 lature to submit to the people the question of a 
 Convention every year. It says : 
 
 The foregoing resolution shall in no wise re 
 strain or impair the reserved right of the people, 
 in their sovereign capacity, at all times to alter 
 and change their Constitution and frame of gov 
 ernment. 
 
 In the name of common sense, what does this 
 mean? Here you say that once in twenty years, 
 about half way in a generation, the question shall 
 be submitted to the people, whether they will 
 have a Convention. Then you provide that their 
 legislature may put the question annually to them, 
 and then you resolve that by their reserved sov 
 ereignty they shall have this right. What does 
 that mean ? I confess I do not know. In rap 
 tures, almost, my young friend, (Mr. Burlingame,) 
 breaks out in encomiums, in unkiiown strains, 
 upon this new declaration of the rights of man. 
 For the first time on this earth, I understood him 
 to say, this right is embodied in a Constitution. 
 Sir, I commend to my young friend to look into 
 that glorious old Bill of Rights, drawn tip by a 
 man no summer soldier, or summer patriot; 
 drawn up by a man under sentence of a government 
 against which he had rebelled ; drawn up by a 
 man and passed by a body of men who had been 
 bapti/ed in blood, and whose patriotism was pu 
 rified by the fires of the Revolution a man, Sir, 
 who, when he penned that declaration, and that 
 Bill of Rights, knew not whether he should suffer 
 as a traitor, suspended between the heavens and 
 the earth, or receive from future generations the 
 gratitude of freemen. See whether this man, and 
 those who acted with him, had any such concep 
 tion as this : 
 
 " Government is instituted for the common 
 good; for the protection, safety, prosperity and 
 happiness of the people ; and not for the profit, 
 honor, or private interest of any one man, family, 
 or class of men ; therefore, the people alone have 
 an incontestible, unalienable, and indefeasible 
 right to institute government; and to reform, 
 alter, or totally change the same, when their pro 
 tection, safety, prosperity and happiness requir it." 
 
 Sir, what are the last few words of that third 
 
64th day.] 
 
 CONSTITUTIONAL CONVENTIONS. 
 
 299 
 
 Friday,] 
 
 BRIGGS HALE HALLETT SIMMONS UPTON SARGENT COLE. [July 22d. 
 
 resolution, but an echo of these glorious sentiments, 
 these great principles of human rights, planted as 
 deep, and as firm and everlasting as the granite 
 rocks of the native town of their author ? What 
 else is it ? And yet this amendment is declared 
 to be the first proclamation of these noble senti 
 ments. And in what manner does my young 
 friend, and my friend for Wilbraham, propose to 
 carry out this provision ? Why, Sir, that those 
 who are to succeed us may have a right to alter 
 or amend in any manner they please, the Consti 
 tution and Frame of Government ? No, Sir, no ; 
 they may have a right to call a Convention if they 
 will do it in the manner prescribed in the statute 
 of 1852 ; and not in any manner that they shall 
 please. But they may vote on the question 
 whether they will have a Convention according to 
 the act of 1852. And this is carrying out the 
 principle that they may alter and amend the Con 
 stitution when and how they please. 
 
 Sir, this is a great question. I will not go into 
 the question at all whether the people are the 
 fountain of power. Sir, who doubts it ? I could 
 not discover where my young friend drew the 
 dividing line between the different opinions of 
 what he calls the two schools, held in tlvis coun 
 try, notwithstanding the keenness of my young 
 friend s remark, unless this was it 
 
 [The hour for closing debate having arrived, 
 the remarks of the gentlemen were, at this point, 
 interrupted.] 
 
 Mr. HALE, of Bridge water, modified his mo 
 tion so that a majority of the Senate and two- 
 thirds of the House of Representatives should be 
 required to ratify the amendments to the Consti 
 tution. 
 
 The question being taken upon the motion of 
 Mr. Hale, as modified, it was not agreed to. 
 
 Mr. HALLETT modified his amendment by 
 adding after the words " March next succeeding," 
 the words, " in conformity with the law then in 
 force for the election of representatives," so that 
 the clause would read as follows : 
 
 And thereupon delegates shall be chosen on 
 the first Monday of March next succeeding, in 
 conformity with the law then in force for the 
 election of representatives, and such delegates 
 shall meet in Convention in the State House on 
 the fir.st Wednesday of May succeeding, in the 
 same manner and with the same authority as is 
 provided in the second, third, and fourth sections 
 of said Act. 
 
 Mr. SIMMONS, of Hanover, moved to amend 
 the substitute proposed by Mr. Hallett as an 
 amendment, by adding thereto the following : 
 
 And it shall be the duty of magistrates and 
 persons in authority, to verify and recognize the 
 
 proceedings of all meetings of the people holden 
 for that purpose, to the end that the will of the 
 majority may be ascertained and obeyed by the 
 constitutional authorities. 
 
 The question being taken on this amendment, 
 it was not agreed to. 
 
 Mr. TJPTOX, of Boston, moved to amend the 
 resolve, by striking out the words " 1873, and in 
 each twentieth year thereafter," and inserting in 
 lieu thereof, the words " 1858, and in each fifth 
 year thereafter." 
 
 The question being taken on this amendment, 
 it was not agreed to. 
 
 Mr. SARGEXT, of Cambridge, moved to 
 amend the resolution, by striking out the words 
 " 1873, and in each twentieth year thereafter," 
 and inserting in lieu thereof, the words " 1860, 
 and in each tenth year thereafter." 
 
 The question being taken, upon a division, there 
 were ayes, 48 ; noes, 178 so the motion was 
 not agreed to. 
 
 Mr. COLE, of Cheshire, moved to amend the 
 resolution by striking, out, after the word "Con 
 stitution " in the tenth line, the following words : 
 " in conformity to the provisions of the Act of 
 1852, chapter 188, relating to the calling a Con 
 vention of delegates of the people, for the pur 
 pose of revising the Constitution," so that the 
 resolution, as amended, would read as follows : 
 
 Resolved, That it is expedient to provide in the 
 Constitution, that a Convention to revise or 
 amend this Constitution, may be called and held 
 in the following manner. At the general election 
 which shall be in the year eighteen hundred and 
 seventy-three, and in each twentieth year there 
 after, the qualified voters in State elections shall 
 give in their votes to be received, counted, re 
 turned and declared, in the same manner as by 
 law is provided in the choice of general officers 
 at such election ; upon the question, " Shall there 
 be a Convention to revise the Constitution r" and 
 if it shall appear, by the returns made, that a 
 majority of the qualified voters throughotit the 
 State, who shall assemble and vote thereon, are 
 in favor of such revision, the same shall be 
 deemed and taken to be the will of the people of 
 the Commonwealth, that a Convention should 
 meet accordingly, &c. 
 
 The question being taken upon the amend 
 ment, it was not agreed to. 
 
 Mr. HALE, of Bridgewater, moved to amend 
 the resolution, by striking out the last clause, as 
 follows : 
 
 The foregoing provisions, shall in no wise re 
 strain or impair the reserved right of the people 
 in their sovereign capacity, at all times, to reform, 
 alter, or totally change their Constitution and 
 Frame of Government. 
 
300 
 
 CONSTITUTIONAL CONVENTIONS. 
 
 [64th day. 
 
 Friday,] 
 
 PARKER BRIGGS UPTON. 
 
 [July 22d. 
 
 And inserting in lieu thereof, the following : 
 
 And the right of the people at all times, to 
 amend their Constitution of Government, by 
 Convention, or otherwise, according to their will, 
 legally expressed, shall never be restrained or 
 obstructed in this Commonwealth. 
 
 Mr. PARKER, of Cambridge. As the order 
 which has been adopted precludes farther debate, 
 I will ask whether the Chair gives the privilege 
 of inquiry for the purpose of ascertaining con 
 struction ? If I may be allowed, I wish to make 
 an inquiry as to the effect of the amendment 
 which is proposed by the gentleman for Wil- 
 braham ; but if not, I must reserve my inquiry 
 until the next stage. 
 
 The CHAIRMAN. The Chair thinks that no 
 debate will be in order. 
 
 Mr. PARKER. If no debate is in order, I 
 desire to know whether that precludes an inquiry ? 
 
 The CHAIRMAN. It depends very much 
 upon what the inquiry is. 
 
 Mr. PARKER. The inquiry relates to the 
 construction of the amendment the effect of it. 
 
 The CHAIRMAN. The Chair thinks that 
 would lead to debate, as it would require an 
 answer. 
 
 The question being then taken on the amend 
 ment proposed by Mr. Hale, it was not agreed to. 
 
 The question then recurred on the amendment 
 of Mr. Hallett, being to substitute his resolution 
 as modified, for the resolutions reported by the 
 Committee, and the resolution was read. 
 
 The question being taken, on a division, there 
 were ayes, 158 ; noes, 101 so it was agreed to. 
 
 Mr. BUTLER, of Lowell, moved that the 
 Committee rise, and report the substitute to the 
 Convention, with a recommendation that it ought 
 to be adopted. 
 
 The motion was agreed to. 
 
 The President pro tern., having resumed the 
 chair of 
 
 THE CONVENTION, 
 
 The chairman, Mr. Griswold, for Erving, re 
 ported that the Committee of the Whole had had 
 under consideration the Report of the Committee 
 and resolves on the subject of amendments to 
 the Constitution, and that they had instructed 
 him to report the same back to the Convention, 
 with amendments. The Committee of the Whole 
 had amended the Report, by striking out the sec 
 ond resolution, and, afterwards, by substituting 
 another in lieu of the remaining resolutions. 
 
 The question was first stated on concurring 
 with the Report of the Committee of the Whole, 
 to strike out the second resolution, as follows : 
 
 Resolved, That it is expedient farther to pro 
 vide in the Constitution, that, whenever the leg 
 islature shall fail to submit to the people, at the 
 periods designated in the foregoing resolve, the 
 question of calling a Convention for the purposes 
 indicated therein, the qualified voters in State 
 elections, in the several cities and towns, may, at 
 the next general election thereafter, and upon 
 notice of such failure by the Secretary of the 
 Commonwealth, whose duty it shall be to issue 
 such notice, proceed to vote upon said question 
 as though it had been propounded by the legisla 
 ture ; and if, upon a return to the Governor and 
 Council, of the vote so given, it shall appear that 
 a majority have voted in favor of the proposition, 
 the Governor shall forthwith issue his proclama 
 tion, calling upon the voters of said cities and 
 towns, at meetings legally warned for that pur 
 pose, to elect delegates to such Convention ; the 
 time and place for holding its session, being ex 
 pressed therein. 
 
 The question being taken, the amendment of 
 the Committee of the W T hole was concurred in. 
 
 The question was then stated, on the next 
 amendment reported from Committee of the 
 W T hole, being to strike out all the resolves report 
 ed by the Committee on Amendments and En 
 rolments of the Constitution, and to insert in 
 lieu thereof, the resolution submitted by Mr. Ilal- 
 lett. 
 
 Mr. BRIGGS, of Pittsfield, moved to amend 
 the amendment, by striking out the following 
 words in the tenth, eleventh, twelfth, and thir 
 teenth lines, viz. : "In. conformity to tiie pro 
 visions of the Act of 1852, chapter 188, relating 
 to the calling a Convention of delegates of the 
 people for the purpose of revising the Constitu 
 tion," and also, by striking out the following 
 words at the close of the same paragraph : " same 
 manner and with the same authority as is pro 
 vided in the second, third, and fourth sections of 
 said Act," and inserting in lieu thereof, the fol 
 lowing: "manner to be provided for by the leg 
 islature, to be chosen at said election," so that the 
 latter part of the paragraph, as amended, would 
 read as follows : 
 
 And, thereupon, delegates shall be chosen on 
 the first Monday of March next succeeding, in 
 conformity with the law then in force for the 
 election of representatives, and such delegates 
 shall meet in Convention in the State House on 
 the first Wednesday of May succeeding, in the 
 manner to be provided for by the legislature, to 
 be chosen at said election. 
 
 Mr. BRIGGS asked for the yeas and nays on 
 this amendment, and they were ordered. 
 
 Mr. UPTON, of Boston. The Convention seem 
 to have determined to adopt this substitute which 
 was introduced by the gentleman for Wilbraham ; 
 
64th day.] 
 
 CONSTITUTIONAL CONVENTIONS. 
 
 301 
 
 Friday,] 
 
 UPTON BUTLER. 
 
 [July 22d. 
 
 and although I had the honor to be a member of 
 the Committee which reported the original reso 
 lutions, the chairman of which is not now in his 
 place, I do not propose to inflict any speech on 
 the Convention. I should have liked to have 
 rei erred, for the information of the Convention, 
 to the Constitutions of several of the other States, 
 in regard to this subject ; and principally for the 
 purpose of showing to this body, that it is pro 
 posed to insert into the Constitution of Massa 
 chusetts if the amendment of the member for 
 "VVilbraham is adopted something which is con 
 tained in that of no other State in the Union. 
 The Report of the Committee, which I hold to 
 be better than the substitute, states the question 
 to be proposed to the people : " Shall there be a 
 Convention to revise the Constitution, and amend 
 the same ? " That is the simple question to be 
 submitted to the people ; and the other matter of 
 fixing the proper basis of that Convention, is to 
 be left to the legislature ; and I appeal to the 
 members of this Convention, whether it is not 
 best to leave the basis to the legialature. When 
 ever it is determined that it is necessary to call a 
 Convention, the legislature for the time being 
 may submit the question to the people : " Shall 
 there be a Convention to revise the Constitution, 
 and amend the same ? " They will also have the 
 power to put the question of basis, which they 
 might do in two forms, thus : Shall the dele 
 gates to the Convention be chosen in the same 
 manner ; that the then existing House of Repre 
 sentatives is chosen ; or shall the delegates to the 
 Convention be chosen by districts made by dividing 
 the senatorial districts, by a representation, in 
 one word, of the people of the Commonwealth, 
 and not of town corporations, for the purpose of 
 revising the Constitution of the Commonwealth ? 
 That is the question, and that is the whole ques 
 tion. The Report of your Committee covers that 
 ground, and it also covers another ground that 
 is, in regard to future Conventions, whether you 
 shall have a representation of town corporations, 
 and town corporations merely ; whether one- 
 fourth part of the people of this Commonwealth, 
 representing a majority of the House of Repre 
 sentatives shall say, that hereafter in this Com 
 monwealth, no Convention shall ever be called, 
 unless they give their free will and assent to the 
 same ; or whether the matter shall be left to the 
 whole people of the Commonwealth to decide, 
 through a majority of the people, represented by 
 a majority of the legal voters of the Common 
 wealth. That is the question. And when my 
 friend from Michigan undertakes to tell us what 
 the State of Michigan did, why did he not tell us 
 that the representation in that State is by the 
 
 people assembled in districts ? I say, Mr. Presi 
 dent, that as a-delegate in this Convention, I am 
 ready to meet that question, and I am ready that 
 our Constitution shall be amended so as to have 
 the question submitted every year to the people : 
 " Does our Constitution need amending r" And, 
 if they decide it does, let a delegation of the peo 
 ple not a delegation of the town corporations of 
 the Commonwealth but a delegation of the peo 
 ple of the Commonwealth, here assemble and pre 
 pare the necessary amendments. I say, Sir, that 
 the Report of your Committee covers the demo 
 cratic ground, and the only democratic ground ; 
 it leaves the question open, to be submitted to 
 the people. First, submit the question, whether 
 a Convention shall be called ; and then, what shall 
 be the basis upon which your delegates shall be 
 chosen ? But, if it is proposed to say to the peo 
 ple of this Commonwealth, that the delegates to 
 that Convention shall be chosen on the basis of 
 the House of Representatives, and on that basis 
 only, then it will not be a Convention called on 
 democratic principles, but it will be a representa 
 tion of town corporations, and not of the people. 
 As a member of the Committee, I feel bound to 
 define my position, and having done so, I take 
 my seat. 
 
 Mr. BUTLER, of Lowell. I am sorry, Sir, 
 that the gentleman from Boston should have 
 undertaken to have started off upon the idea that 
 this was a foregone conclusion, and that it really 
 was a case for the exhibition of heat and temper, 
 rather than the exhibition of argument. He 
 spoke so rapidly, under his excited feelings upon 
 the subject and doubtless he was well excited in 
 view of the tremendous consequences which he 
 foresees I say he spoke so rapidly, that I some 
 what doubt whether I exactly understood him. 
 If, however, I did understand him, it was to 
 this effect : that if we pass this amendment as it 
 came from the Committee of the Whole, we shall 
 provide that the Constitution shall be hereafter 
 amended by the towns ; in other words, that the 
 towns are to elect delegates to any future Con 
 vention which may be held. If that is really so, 
 it would be a pretty strong argument, I grant ; 
 and I think the Convention would go with him. 
 If he really thinks it is so, I do not blame him 
 for the heat which he has manifested. I should 
 get hot myself ; I should warm up considerably, 
 if that were the case. But, the difficulty is, that 
 the gentleman does not seem to have read the 
 provision with due care. It provides that in each 
 twentieth year the question shall be submitted to 
 the qualified voters of the State, whether we shall 
 have a Convention in a certain manner, to revise 
 the Constitution ; and if they say that we shall, 
 
302 
 
 CONSTITUTIONAL CONVENTIONS. 
 
 [64th day. 
 
 Friday,] 
 
 UPTON BUTLER LORD. 
 
 [July 22d. 
 
 then the delegates shall come together on the 
 basis of representation, as it shall then be estab 
 lished. Well, Sir, if the people in the mean 
 time shall have thought that the basis is an un 
 just one, they will undoubtedly adopt another 
 basis perhaps the district system. 
 
 Mr. UPTON. I will ask the gentleman 
 whether, by this amendment, whenever a Con 
 vention shall be called, it will not be called upon 
 the basis which we now establish ; and whether 
 that is not a basis of town representation, and not 
 a representation of the whole people of the State ? 
 
 Mr. BUTLER. It will undoubtedly be called 
 upon the basis which we have now made. It 
 will be submitted to the qualified voters ; and if 
 they should, in the mean time, say that this sys 
 tem of town representation is so intolerable as not 
 to be borne, they will, undoubtedly, propose to 
 change it, and refuse to endure it any longer. 
 Then the delegates will come together, and the 
 majority of the whole people will alter the Con 
 stitution. Town delegates may propose this or 
 that ; but unless it is a proposition which to the 
 whole people seems necessary to be adopted, it 
 cannot become a provision in the Constitution. 
 How shall we stand then? The whole people 
 will have adopted the Constitution, which cannot 
 be altered but by the whole people. And now if 
 the people should adopt this form of government, 
 that form will stand till when ? Why, Sir, till 
 the whole people get ready to alter it. And if all 
 the towns should agree but one, and that one 
 town should contain a majority of the population, 
 it cannot be changed until the majority in that 
 town agree to it. It is a majority of the whole 
 people. The gentleman shakes his head as if he 
 did not believe it. I should like to know how it 
 can be otherwise ? You cannot have a Convention 
 till the majority of the people say so ; and when 
 they do say so, then a Convention can come here 
 and sit as long as we have done very much too 
 long, I i ear, for the good of the Commonwealth 
 and then, after all, it is the whole people who 
 must make any change in the Constitution. 
 
 Mr. UPTON. Will the gentleman from Low 
 ell allow me one word ? 
 
 Mr. BUTLER. O yes, Sir; a thousand, if 
 you choose. 
 
 Mr. UPTON. I only mean to say, that by a 
 corporate representation, you cannot get the opin 
 ion of the whole people through their delegates. 
 It is a town system of representation, and not a 
 system based upon population. That is what I 
 mean to say. It provides that the delegates shall 
 be chosen under a town representation, and not 
 by the whole people of the Commonwealth. 
 
 Mr. BUTLER. The difficulty under which 
 
 the gentleman is laboring, is, in the first place, 
 that he mistakes the temper of the Convention for 
 his own, [a laugh,] and in the second place, that 
 he mistakes the fact, that the people live in towns. 
 What is a commonwealth r It is not at one time 
 a commonwealth, and at another time a town. A 
 commonwealth is made up of towns. There is 
 no commonwealth without totnis. Strike out of 
 existence all the towns, and there will be no 
 commonwealth here. The difficulty of the gen 
 tleman is, that we do not provide, in some way or 
 other, a district system of representation. 
 
 And now I have got at what the gentleman 
 wished. When he made the amendment which 
 seemed to me to be altogether more progressive 
 than even that of my friend for Northborough, 
 when he proposed that we should have a Conven 
 tion in 1858, and every fifth year afterwards, I 
 understand what he wants to get at ; he is in 
 hopes of getting some district system by which 
 he can so alter the Constitution as to get a com 
 plete district system for all time to come. I saw 
 what he was after like the nurse that wanted to 
 kill the child in her arms by stuffing it with 
 sweet- cake. He professes to be conservative ; 
 but, Sir, I am a great deal more conservative than 
 he is. He is one of the conservatives of the 
 "Young American" people, while I am getting 
 to be an "Old Fogy" on this question ! 
 
 Sir, I see no difficulty in this matter whatever. 
 We must make some basis of representation. The 
 Commonwealth must be represented, and repre 
 sented in a way which the Convention say is the 
 proper one, or else the people will not be repre 
 sented at all. If the amendment is adopted, and 
 the Constitution accepted by the people, we shall 
 then have a Constitution under which the people 
 of the Commonwealth agree to live ; and it will 
 remain in that form until a majority of the peo 
 ple agree to alter it, and that is all there is of it. 
 
 Now, one word upon the amendment of the 
 gentleman from Pittsneld. If I understood it, it 
 is the same amendment which was offered by the 
 gentleman from Cheshire, except that it provides 
 that the legislature shall fix upon the manner in 
 which the Convention shall be held. 
 
 Mr. LORD, of Salem. I desire that the gen 
 tleman from Lowell would allow me to ask him 
 whether, if a Convention is called in 1873, there 
 might not be just as many delegates as there are 
 in this Convention, chosen from the same local 
 ities, whatever the population of these localities 
 may be at the time ? On reading carefully the 
 proposition of the gentleman for Wilbraham, I 
 think he will come to that conclusion. 
 
 Mr. BUTLER. I had thought so. It struck 
 me in the same way that it seems to have struck 
 
64th day.] 
 
 CONSTITUTIONAL CONVENTIONS. 
 
 303 
 
 Friday,] 
 
 BUTLER. 
 
 [July 22d. 
 
 the gentleman from Salem, until I looked at it 
 more carefully. It provides that " thereupon the 
 delegates shall be chosen on the first Monday of 
 March next succeeding, in conformity with the 
 provisions of law for then electing members of the 
 House of Representatives." I do not know that 
 I quote the words exactly. I speak from mem 
 ory ; but that is the substance of the amendment, 
 at any rate. It will be as "then" in force ; so 
 that it must be exactly as the House of Repre 
 sentatives is based in 1873, and every twenty 
 years thereafter ; and if there is anything wring 
 about this, the legislature will have a right, each 
 year, to ask the people to call a Convention to 
 gether, until they get it righted ; so that if this 
 great wrong has been done, which has excited my 
 friend from Boston so much, he can get it righted 
 by the people, between now and then. 
 
 Now, Sir, I was going to refer for a moment to 
 the amendment of the gentleman from Pittsfield, 
 who seems to have adopted the child of the gen 
 tleman from Cheshire, probably because he had 
 none of his own. And what is it ? It is a prop 
 osition that the legislature shall prescribe the 
 mode in which the Convention shall be called. If 
 the people agree that a Convention shall be called, 
 then I believe that the legislature is to prescribe 
 the manner in which it is to be called. I believe 
 I have got it right. 
 
 Mr. BRIGGS. The proposition is, that it 
 shall be held in a manner provided by certain 
 sections of that law. 
 
 Mr. BUTLER. I want the Convention to see 
 the exact difference between the two propositions. 
 The proposed amendment provides, that after the 
 people have called a Convention, it shall be held 
 in such a manner as the then legislature shall 
 provide. This proposition is to have a Conven 
 tion in a given manner, whether the legislature 
 are willing or unwilling ; that we should have 
 just such a body as this, always, of course, with 
 more talent and ability, and temper, which they 
 will get so much better twenty years hence ; but 
 we are to have just such a body, constituted and 
 held just in the same way as this body is. 
 
 Now I understand this to be the radical differ 
 ence between the two propositions : one of them 
 puts into the fundamental law that the Conven 
 tion shall be held without a reference to the 
 actual powers that be, so that no question of 
 license law, or fugitive slave law, or one law or 
 another law, or presidential election ; or so that 
 no bolting out of a small faction, on this side or 
 on that side ; so that, in short, no extraneous 
 influence can put an accidental majority into the 
 legislature, which shall have any power ~to con 
 trol the action of the people ; so that the same 
 
 thing shall never again be witnessed in this Com 
 monwealth, which we saw here last winter ; that 
 it shall be among the things that were, never to 
 be seen again that of the legislature assuming 
 the power to interfere with the whole people in 
 regard to their Convention. That is the exact 
 difference, if I understand it, between the two 
 propositions. One is to provide, by the funda 
 mental law, irrepealable, and not to be construed 
 away by anybody, not to be touched by any leg 
 islature ; such as cannot be interfered with by any 
 legislature ; in a Convention of the people, when 
 ever they will it to have, in fact, what we have 
 now in theory, the vox populi second only to the 
 vox Dei that the legislature shall not interfere. 
 That is just the difference which I wish to im 
 press upon the Convention, and then I have 
 urged all I wish to say upon the proposition of 
 the gentleman from Pittsfield. 
 
 Now, I take it that every man who desires that 
 the legislature hereafter may have power to inter 
 fere with the will of the people upon a call for a 
 Convention, will vote for the amendment of the 
 gentleman from Pittsfield. Every man, on the 
 other hand, who desires that future Conventions 
 shall be, as I trust and believe this to have been, 
 above and beyond the reach of any legislative 
 action, will vote for the proposition as it stands. 
 Sir, it is quite plain that we can get here and 
 express the will of the people without the inter 
 ference of the legislature. Why do we want the 
 legislature to tinker upon the matter ? When the 
 people have spoken and said that they will have 
 a Convention, why do we want the legislature to 
 prescribe the means, or to refuse to prescribe the 
 means, by which it shall be held ? Why should 
 we give them the power to say : "You may have 
 a Convention, but that Convention shall sit upon 
 the top of the Hoosac Mountain, or underneath it, 
 if you please." Why give them the right to say : 
 " You shall have a Convention ; but, if you do 
 have it, you shall sit without any pay ; you shall 
 sit having about you the safeguards of the law. 
 You shall have a Convention, but every one who 
 comes to it shall come in a particular way, and 
 be dressed in a particular uniform, and inarch 
 through a particular line of sentinels, and come 
 in at a particular door." Some gentleman near 
 me whispers that no legislature will ever be so 
 foolish as to do such a thing as that. Sir, to what 
 extent the folly of the legislature may can-y them, 
 the gentleman from Salem and myself would not 
 disagree in saying on whatever else we might 
 disagree that that point was without a limit. 
 We should probably disagree as to the side on 
 which that folly would exist, but we should not 
 disagree as to the fact that it might be without a 
 
304 
 
 CONSTITUTIONAL CONVENTIONS. 
 
 [64th day. 
 
 Friday,] 
 
 LORD. 
 
 [July 22d. 
 
 limit. I should be of opinion that the legislature 
 which would coolly discuss the basis of the regu 
 lations under which delegates should be chosen 
 and I will commend to the consideration of gentle 
 men here, the legislative caucus of last winter, 
 where the question of complying with the peo 
 ple s will was discussed, and only defeated by a 
 majority of five I say, after that, no man can 
 say to what extent the folly of the legislature 
 may go, and we are only to put safeguards about 
 it. Suppose that five had voted the other way, 
 where should we have been now ? We should 
 have been sitting here, but under the strong hand. 
 I do not wish to leave anything to the future 
 legislature, and, therefore, I am constrained to 
 vote against the proposition of the gentleman 
 from Pittsficld, (Mr. Briggs). 
 
 Mr. LORD. When I arose to make the in 
 quiry of the gentleman from Lowell, I was not 
 aware that the proposition had been modified, and 
 I agree with him, that with that modification, the 
 representation in the Convention would be ac 
 cording to the basis of representation existing at 
 the time when the Convention would be called. 
 But it becomes us to look and see what that basis 
 is. Is that a representation of the people as it 
 now r stands ? Now, Sir, we have adopted a mode 
 of representation in the House of Representatives, 
 and that plan would not have been carried, in my 
 judgment, except for the plausible speech of the 
 distinguished delegate who represents Berlin, 
 (Mr. Boutvvell). It was put in that speech, that 
 this was not a representation of the people, but 
 that it was a representation, to some extent, justi 
 fied as a compensation for the mode of fixing the 
 basis of the Senate ; that the Senate should have 
 been based upon legal voters, instead of being 
 based upon population ; and that being the case, 
 it became necessary to make the House of Repre 
 sentatives such no, I will not do the gentleman 
 for Berlin the injustice to say it, because he did 
 not undertake to justify it upon that ground but 
 he said it was not quite so bad, considering that 
 it might be looked upon as a compensation. 
 
 Now, Sir, the great question which presents 
 itself to us here, is this : shall we, by a constitu 
 tional enactment, provide that the next Constitu 
 tional Convention which is called, shall not be 
 composed of persons who shall represent an equal 
 proportion of people r Shall we provide here in the 
 Constitution, as matter of fundamental law, that 
 the people of this Commonwealth shall not be 
 equally represented in the Constitutional Conven 
 tion ? That is the question. There is no man 
 that pretends that the people are equally repre 
 sented in the House of Representatives, upon the 
 basis which we have fixed. Now, shall we say, 
 
 as a matter of constitutional law, that when the 
 people speak, they shall send delegates who do 
 not represent the people equally ? And, Sir, I 
 I want to know; with that amendment adopted 
 and I think it will require the astuteness, not 
 only of the gentleman from Lowell, (Mr. Butler,) 
 but also that of the gentleman for Wilbraham, 
 (Mr. Hallett,) to tell me what representation 
 those sixty-four towns are entitled to in that Con 
 stitutional Convention, when they are not entitled 
 to half a representative each in the House of Rep 
 resentatives ? 
 
 Mr. SIMMONS, of Bedford, (in his seat). 
 Entitled to somebody here half the time. 
 
 Mr. LORD. The gentleman near me says they 
 may have somebody here half the time. 
 
 A VOICE. Six-tenths of the time. 
 
 Mr. LORD. So it is. I accept of the amend 
 ment. We are providing here, not by hasty leg 
 islative act, a fundamental law which shall fix the 
 basis upon which all future Conventions shall be 
 called ; because, Sir, I submit that no Conventions 
 can be called hereafter, except by force and vio 
 lence, unless it is called according to that basis to 
 which I have referred ; for the very provision 
 which says that the legislature may call a Con 
 vention in other years besides the years which the 
 Constitution provides, says, also, that it shall be 
 called in the same manner, and upon the same 
 basis. Therefore, you can get no law through, 
 the legislature, except in violation of the Consti 
 tution, that does not provide that the people shall 
 not be equally represented in a Convention, which 
 undertakes to report a constitutional amendment 
 to the people. And, Sir, the argument which the 
 gentleman from Lowell makes, that there is 110 
 Convention to be called without a majority of the 
 people in favor of it in the first place, and no 
 amendment to be adopted unless a majority of the 
 people concur in it afterwards, is of no force what 
 ever ; because, if that has any force, why not say 
 that the county commissioners of the county of 
 Berkshire shall have the power, in the first place, 
 of submitting amendments to the people, because, 
 unless the people choose to ratify them they do 
 not become a part of the Constitution ? The diffi 
 culty is, we cannot get an amendment before the 
 people, if you make a constitutional provision 
 which does not provide for an equal representa 
 tion of the people. How else can we get amend 
 ments before the people ? The people of this 
 Commonwealth this day demand equal represen 
 tation ; but they cannot get it, and why ? Because 
 the people are not equally represented here. 
 Should every man in it, from every quarter of 
 this Commonwealth, demand equality of repre 
 sentation, you will not let them vote upon that 
 
64th day.] 
 
 CONSTITUTIONAL CONVENTIONS. 
 
 305 
 
 Friday,] 
 
 LORD PARKER. 
 
 [July 22d. 
 
 question. Why ? Simply because you do not 
 represent the people. The majority of this Con 
 vention is chosen, as every-body knows, and as 
 has been charged over and over again, by a third 
 part of the legal voters of this Commonwealth. 
 Then, how are the people to amend the Constitu 
 tion, if you are not to allow them to speak in Con 
 vention ? 
 
 Now, Sir, it is pretty unimportant, in my judg 
 ment, whether the gentleman from Lowell, (Mr. 
 Butler,) and myself, think the legislature will act 
 foolishly or not. I think, as Constitution makers, 
 we are bound to presume that future legisla 
 tures will act according to the Constitution ; 
 we are bound to presume that the people will 
 select such agents and such representatives as will 
 properly carry into effect their views. I have no 
 such distrust of the people as to suppose that they 
 will send up here representatives who will not 
 conform to their will. If they do, the evil is only 
 temporary, because the same constituency which 
 sent them up, can instruct them while they are 
 here, unless we have taken that good old pro 
 vision from the Constitution, and I hope we have 
 not, and if they do not like their doings while 
 they are here, they can send others to take their 
 places. Now, I say, it is entirely unimportant 
 how gentlemen who will be so little known in 
 1873, and so little cared for at that time, as the 
 gentleman from Lowell, (Mr. Butler,) and my 
 self, think the legislature will manage if they have 
 the power. I do not, however, propose at all to 
 enter upon the discussion of that point. 
 
 I think, Sir, if our fathers had told us, in 1820, 
 that we should not ha r e had a Convention unless 
 we had delegates chosen just as they should pre 
 scribe, that once in a while we should hear it said 
 that it was not in the power of one generation to 
 undertake to bind down and enchain their suc 
 cessors and posterity to all future times. I think 
 it would have been said here, and said with a 
 great deal more force, and certainly with a great 
 deal more truth, than many things which have 
 been advanced here politically, that if they had 
 undertaken to say that when the people chose, 
 through their constituted organ, to select a Con 
 vention to revise the Constitution, they had not 
 the power to say how they should be represented. 
 That would have been a "fossil," indeed, which 
 thirty years ago should have undertaken to say to 
 us of to-day, that we should not have a Conven 
 tion unless we should stick to the old property 
 qualification in the voter and in the delegate. 
 Suppose, in 1820, that the Convention had said, 
 that hereafter no Convention should be called, 
 except by a majority of those voters who had a 
 freehold estate, should not we have called that a 
 
 " fossil " ? that they had undertaken to bind their 
 successors, and that they had no such power ? 
 
 Sir, I do not profess to be remarkably progres 
 sive, but I hold that in making a Constitution, we 
 should exercise such powers as we have ; not only 
 to make a Constitution which shall meet the exi 
 gencies of the day, but one which, according to 
 human judgment, and so far as we can bring 
 human foresight to bear upon it, shall meet the 
 exigencies of the future. But to undertake to say 
 that our successors, when we are slumbering, and 
 the mould " shall have gathered upon our memo 
 ries, as it will have gathered upon our tombs," 
 shall not have a Constitutional Convention, or a 
 Constitution, unless they take them according to 
 the opinions of those who, living in 1853, profess 
 to be wiser than those who may come after them, 
 is, in my opinion, a great mistake. I am willing 
 to declare that the people have a right to have a 
 Convention. There is no difficulty in the people s 
 having a Convention when they want it, and 
 there is no difficulty in putting that into the Con 
 stitution. 
 
 Mr. PARKER, of Cambridge. I proposed, 
 while this subject was before the Committee of 
 the Whole, if it had been in order, to make an 
 inquiry for the purpose of ascertaining the true 
 construction of the proposed amendment. Hav 
 ing no opportunity at that time, under the rules, 
 I desire now to call the attention of the Conven 
 tion to it as adopted and reported by the Com 
 mittee, with the same view. It provides that in 
 1873, and in every twentieth year thereafter, the 
 question shall be submitted to the people " Shall 
 there be a Convention to revise the Constitution 
 in conformity to the provisions of the Act of 
 1852, chapter 188, relating to calling a Conven 
 tion of delegates of the people, for the purpose of 
 revising the Constitution ? " That is the ques 
 tion which is to be submitted to the people, and 
 upon that their vote is to be required. If they 
 vote in the affirmative, then there are certain other 
 provisions. 
 
 Now, Sir, the Act of 1852 contains, among 
 other things, a provision that in case the answer 
 shall be in the affirmative, the inhabitants of the 
 Commonwealth, " now entitled" (that is, enti 
 tled in 1852,) in any one year to send one or 
 more representatives to the general court, shall, 
 on the first Monday of March, &c., elect one or 
 more delegates, not exceeding the number of 
 representatives to which each town or city " was 
 entitled in the last year," (that is, in 1852) ; 
 and it provides " that at a meeting of the inhabi 
 tants for that purpose, every person entitled to 
 vote for representatives in the general court, shall 
 have the right to vote in the choice of delegates ; 
 
306 
 
 CONSTITUTIONAL CONVENTIONS. 
 
 [64th day. 
 
 Friday,] 
 
 PARKER. 
 
 [July 22d. 
 
 and the same officers of the several cities and 
 towns shall proceed in such election, as they now 
 proceed in the election of representatives to the 
 general court, and that the votes shall be received 
 in the same manner as noio provided in case of 
 representatives to the general court ; and that the 
 same laws now in force regulating the duties of 
 town and city officers, shall apply and be in full 
 force and operation as to all meetings held under 
 this Act," &c. The inquiry which I wish to make 
 is, whether, as a matter of legal construction, if 
 this question is submitted to the people, and 
 they answer in the affirmative, they will not have 
 responded that the Convention should be called 
 precisely according to the terms, and under the 
 terms of the Act of 1852 ; whether all the provis 
 ions of that Act, and all the references made by 
 that Act, to other laws in force at that time, will 
 not become stereotyped, and be part and parcel 
 of the Constitution, so that reference must be 
 made to them in 1873, and in every twentieth 
 year thereafter, in order to ascertain how the 
 delegates are to be chosen, and their number, 
 and the laws which shall govern their election ? 
 If I understand the true construction of this 
 clause, it makes all the provisions of the Act of 
 1852 a part of your constitutional law upon this 
 subject, and more than that, it makes all the acts 
 referred to in that Act all the existing laws which 
 were in force for the election of delegates to this 
 Convention also a part of the Constitution ; so 
 that sixty, eighty, or one hundred years hence, if 
 this clause shall still remain, the people must refer 
 to the Act of 1852, and hunt up the laws then in 
 existence to which that Act refers, before they can 
 know how to proceed in calling their Convention. 
 Well, Sir, as this amendment was originally sub 
 mitted by the gentleman for Wilbraham, all the 
 proceedings were to be in perfect conformity 
 with that Act. It provided that if the people 
 voted to call a Convention, the delegates should 
 be chosen on the first Monday in March, next 
 succeeding, and that they should meet at the 
 State House, on the first Wednesday of May 
 next succeeding, in the same manner and with 
 the same authority as is provided in the second, 
 third and fourth sections of said Act that is, ac 
 cording to the provisions of the Act of 1852. 
 
 But the proposition was modified afterwards in 
 Committee, and another provision inserted, which 
 is substantially this : 
 
 Thereupon, delegates shall be chosen on the 
 first Monday of March next succeeding, in con 
 formity icith the laws then in force for the election 
 of representatives. 
 
 Now, Sir, I wish to know how far this pro 
 
 vision will or will not be in conflict with the 
 question put to the people, and answered by them ? 
 Will the election, if made in conformity with the 
 laws then in force for the election of representa 
 tives, be made as the people have willed that it 
 shall be done, by answering the question submit 
 ted to them in the affirmative ? If it will not, 
 then these two provisions are in conflict with each 
 other. The people say they will have a Conven 
 tion according to the Act of 1852, with all its 
 references to other acts then in force ; whereas a 
 subsequent part of the same proposition requires 
 that the Convention shall be called, and delegates 
 chosen, in the manner then provided for the elec 
 tion of representatives. 
 
 If there be this conflict, then I would inquire 
 which part is to stand ? Is a construction to be 
 put upon the question submitted to and answered 
 by the people, to make it conform to this subse 
 quent provision, or is a construction to be put 
 upon that subsequent provision, to make it con 
 form to the question ? 
 
 But there is something more here which seems 
 to me to need explanation. This modification 
 which has been inserted, makes the latter part 
 of the provision read in this way : 
 
 And, therefore, delegates shall be chosen on 
 the first Monday of March next succeeding, in 
 conformity to the laws then in force for the elec 
 tion of representatives, and such delegates shall 
 meet in the State House, on the first Wednesday 
 of May succeeding, in the same manner, and 
 with the same authority, as is provided in the 2d, 
 3d, and 4th sections of said Act. 
 
 Now, can this provision stand with all its parts, 
 in consistency with each other, or is the first por 
 tion of it, which was originally drawn in con 
 formity with the question to be put to the people, 
 in conflict with the modification which has been 
 made, so that the election of delegates must be in 
 accordance with the then existing laws, and yet 
 in conformity with the Act of 1852 ? 
 
 Again, the first part of the amendment provides 
 that, " at the next general election which shall 
 be in the year 1873, and in each twentieth year 
 thereafter, the qualified voters shall give in their 
 votes," &c. Now, the qualified voters in State 
 elections, according to the provisions which it is 
 proposed to incorporate into the Constitution at 
 this time, will not be, or may not be, persons of 
 the same description as those who were the quali 
 fied voters in 1852. If the amendment which 
 you have already adopted is ratified, the payment 
 of a tax will not be required to qualify a \ erson. 
 to vote. This amendment will, therefore, pro 
 vide that one set of voters, all persons qualified 
 
64th day.] 
 
 CONSTITUTIONAL CONVENTIONS. 
 
 307 
 
 Friday,] 
 
 BIRD HALLETT. 
 
 [July 22d. 
 
 by residence, &c., whether they have paid a tax 
 or not, may vote upon the question : " Shall there 
 be a Convention held according to the provisions 
 of the Act of 1852 ? " But, in the choice of dele 
 gates, the election being according to the provis 
 ions of the Act of 1852, and the laws then in 
 force, another set of voters, those only who have 
 paid a tax, can vote. So that you will submit 
 to one class of men the question whether a Con 
 vention shall be called, and to another class of 
 men, the choice of delegates to the Convention. 
 
 These are questions of legal construction, and 
 before the Convention proceeds to make this prop 
 osition a part of the Constitution, they should be 
 satisfac torily ans wered . 
 
 Mr. BIRD, of Walpole. I have not much to 
 say upon the subject before the Convention, ex 
 cept that I shall call for a division of the question 
 when the vote is taken. I am willing and desirous 
 to vote for the first proposition of the gentleman 
 from Pittsfield, (Mr. Briggs). I do not like to 
 vote against the proposition of the gentlemen for 
 "Wilbraham, (Mr. Hallett,) because I generally 
 agree with him upon matters of democratic prin 
 ciple, but I am not willing to incorporate into 
 the fundamental law of the Commonwealth, a 
 provision which shall bind the people in 1873 in 
 relation to the details of calling a Constitutional 
 Convention. The Act of 1852 worked very well 
 last year ; it might not work so well twenty years 
 hence. 
 
 In relation to the other part of the amendment 
 presented by the gentleman from Pittsfield, I hope 
 it will be withdrawn, or if it is not, that it will be 
 rejected. I understand the gentleman is not par 
 ticularly tenacious about retaining the latter part 
 of his proposition, and I would, therefore, sug 
 gest that all after the word " succeeding," be 
 stricken out. That clause of the proposition 
 would then read : 
 
 And thereupon delegates shall be chosen on 
 the first Monday of March next succeeding, in 
 conformity with the existing laws, in relation to 
 the House of Representatives ; and such delegates 
 shall meet in Convention in the State House on 
 the first Wednesday of May succeeding. 
 
 I would omit the remainder of the paragraph. 
 It will then provide that the question of calling a 
 Convention shall be taken every twenty years ; 
 and if there be a majority of the people of the 
 State in favor of calling a Convention, then the 
 delegates shall be chosen on the first Monday of 
 March next succeeding, and they shall meet in the 
 State House the first Wednesday of May next 
 succeeding. 
 
 Gentlemen may say that with the proposition 
 
 left in this shape, the legislature in the mean time, 
 then in session, may pass acts virtually repealing 
 the calling the Convention, or such as will render 
 their meeting extremely difficult. Now, Sir, I 
 have no fear of that. I believe that when we 
 have provided in our organic law that the ques 
 tion shall be submitted to the people, whether 
 there shall be a Convention called, and when a 
 majority of the people have voted in the affirma 
 tive, no legislature will be found to contravene 
 the will of the people. I do not think we need 
 make any provision to prevent it. Certainly, 
 while the memory of the last legislature lives, no 
 future legislature will try the experiment. I there 
 fore hope the first part of the amendment of the 
 gentleman from Pittsfield will be adopted, and the 
 last part stricken out. 
 
 Mr. HALLETT. In regard to the suggestions 
 made by the learned gentleman from Cambridge, 
 (Mr. Parker,) I am very glad he has shown that 
 by applying his astute mind to the criticism of 
 this proposition, it results in producing nothing 
 against it. If the learned gentleman were now 
 upon the bench, and a question of the constitu 
 tionality of this provision should come before him, 
 and no stronger reasons could be adduced to 
 prove its invalidity than he has suggested against 
 the proposition, he would have too much respect 
 for public sentiment and for justice, to decide 
 otherwise than in favor of its fair construction. 
 He objects, very technically, that there is some 
 thing said in the Act of 1852, about the laws 
 " now " in force, and, therefore, the construction 
 must apply to the laws in force in 1852. Why, 
 Sir, he might just as well have gone back to the 
 Act of 1820 for holding a Convention, for there 
 was something said in that Act about the laws 
 " now " in force. In this resolution now under 
 consideration, it is provided that the election of 
 delegates to a Convention in 1873, shall be carried 
 on in conformity with the laws " then- in force. 
 That construes and applies the law to 1873. The 
 Act of 1820 is the same verbatim, almost as 
 that of 1852, which has answered every purpose 
 now, after a period of thirty-three years ; and yet 
 when we talk of using it for twenty years more 
 to call Conventions, in the same general manner, 
 gentlemen try to terrify us by apprehensions of 
 binding the people to carry into effect in 1873, a 
 law of 1853. 
 
 The learned gentleman from Cambridge, (Mr. 
 Parker,) represents these provisions, the law of 
 1852, and the contemplated action of 1873, as 
 being in conflict with each other, and wants to 
 know which we will take. I can see no difficulty 
 or doubt in the matter. I should like to ask any 
 judge upon the bench, whether, if he had a statute 
 
308 
 
 CONSTITUTIONAL CONVENTIONS. 
 
 [64th day. 
 
 Friday,] 
 
 HALLETT. 
 
 [July 22d. 
 
 before him declaring that such a thing should be 
 done in accordance with the law " now " in force, 
 that is, in 1820 or 1852, and also a plain constitu 
 tional provision before him, saying that the same 
 thing shall be done in accordance with the law 
 "then" in force in 1873, which he would take, 
 the " now " of 1852, or the " then " in the con 
 stitutional provision ? I think it is too plain to 
 need an explanation. 
 
 The rule of construction is, that the Constitu 
 tion is the paramount law, and is to be so con 
 strued as to carry out the will of the people, as 
 the law-making power expressed in their Consti 
 tution, and to make all the provisions of law 
 conform to that. Now, what do we propose to 
 enact in this provision ? Simply a constitutional 
 provision by which the people can hold a Conven 
 tion, without being tied down to ask the consent 
 of the legislature, subject to the arrogant assump 
 tion that the legislature can repeal the law call 
 ing a Convention, and send the delegates home. 
 I have studied this subject for ten years. Its 
 importance in elementary government, cannot be 
 over estimated. Have other gentlemen, who 
 object here, studied it ? If they have, let them 
 show me that they understand it, and mean to 
 gxiard the rights of the people against the usur 
 pations of a legislature, and I will take their 
 opinions. It is a very important matter, I admit ; 
 but I cannot see the judgment or propriety cf 
 gentlemen who have scarcely spent a thought 
 upon the subject, endangering so great a protec 
 tion to the people, by hasty suggestions, all of 
 which go to take this inherent power away from 
 the people and give it to the legislature. If they 
 have examined it, and they are just as capable 
 of examining it as I am, I am willing to defer 
 to them ; but if they have not examined a ques 
 tion so delicate and difficult, they are no more 
 competent to point out what should be done, 
 than they would be to navigate a ship to Califor 
 nia, without having studied the art of navigation 
 for an hour. 
 
 As regards this technical question of construc 
 tion, I apprehend no man who desires to secure the 
 object I have in view, will fairly, soberly, and 
 honestly, have a moment s difficulty with regard 
 to it. The only question before us is, will you 
 so amend your Constitution as to provide a 
 fundamental organic law for holding Conventions, 
 which executes itself, without the aid of the 
 legislature ; or will you lay down the principle 
 that the people can amend their Constitution only 
 through the previous consent of the legislature ? 
 That is precisely the question upon which we are 
 called to act. And here is the basis of a provis 
 ion for the new Constitution, that will execute 
 
 itself without the aid of the legislature ; and I 
 undertake to say, the people, when they want 
 another Convention in twenty years, will find no 
 difficulty at all in construing it. None whatever. 
 Let me assure those who are sincerely in favor of 
 the rights of the people in this respect, that they 
 will find no difficulty from the lawyers, and 
 none from the judges, when we once get it into 
 the Constitution ; but before we get it there, all 
 manner of troubles, and all manner of doubts, and 
 all manner of technicalities, will be thrown in 
 the way of its adoption by the Convention, and 
 by the people. I never knew or read of an 
 instance where the people were struggling to get 
 back their lost rights, either through a Constitu 
 tion, a legislature, or a government, in this coun 
 try, or under the despotisms of the old world, but 
 there were found lawyers who fear the ignorance 
 of the people, and were always interposing diffi 
 culties, raising technicalities, and placing every 
 possible inconvenience in the way, until the peo 
 ple have, in many instances, become alarmed, or 
 embarrassed, and been driven from their rights. 
 I conjure the friends of the great rights of the 
 people in this Convention not to be alarmed 
 at the difficulties which have been attempted to 
 be thrown around this provision. I tell them 
 there is no difficulty in relation to the matter at 
 all. The simple, plain proposition, is, that the 
 towns which are entitled to send representatives 
 to the general court in 1873, if the people of the 
 Commonwealth decide to hold a Convention, 
 will elect delegates to the Convention in con 
 formity with the law then in existence for the 
 election of representatives. The resolution of 
 amendment says : " in conformity with the law 
 then in force," and whatever is the law then in 
 force with regard to representatives, it will apply 
 to delegates to the Convention. I should like to 
 extend it still farther, but that might fail ; and if 
 it is not explicit enough, you may add the basis 
 in the year when the valuation of estates was last 
 settled. 
 
 The same idea is already twice expressed in the 
 amendment ; but in order that it may be so ex 
 plicit that no lawyer can give it a wrong construc 
 tion, I propose, at a proper time, to offer this 
 amendment, or what is equivalent to it. I think 
 the construction is perfectly clear as it now 
 stands, and lean see no reason for anything farther. 
 But I would omit the reference to the Act of 1852, 
 and incorporate all the powers of the Convention, 
 which is the same thing, even if it should take up 
 a dozen pages in the Constitution, for the purpose 
 of securing the rights of the people, rather than 
 that those rights should be lost, and the calling 
 of a Convention be placed in the power of the 
 
64th day.] 
 
 CONSTITUTIONAL CONVENTIONS. 
 
 309 
 
 Friday,] 
 
 HALLETT PAHKER. 
 
 [July 22d. 
 
 legislature, for want of a proper construction of 
 the Constitution. I want it to be so explicit that 
 there can be no getting round it ; for if we fail 
 now, there will be no meetings of the people in 
 Convention for generations to come. I want the 
 people should have the power of amending their 
 own Constitution as they may see fit, without doing 
 it as the United States court has declared they 
 must with a rope round their necks. Our Bill of 
 Rights says that " the people alone have an incon- 
 testible, inalienable, and indefeasible right to in 
 stitute government, and to reform, alter, or totally 
 to change the same." Now, Sir, that is a funda 
 mental right which overrides all limitations upon 
 the part of the people, and I want to make pro 
 vision in this Constitution so that they may ex 
 ercise it ; for it amounts to nothing more now, as 
 the supreme court of the United States have 
 evasively decided in the Rhode Island causes, 
 than simply saying that the people may do it, if 
 their legislature and their court, and the president 
 of the United States will let them ; but if they 
 undertake it without the consent of their rulers, 
 they are to be hanged as rebels. 
 
 The gentleman from Cambridge says that if we 
 insert this provision in the Constitution, we de 
 prive the people of the right of amending their 
 Constitution in the way they would like here 
 after ; when he knows that means they cannot 
 amend it without a law ; and thus he joins in that 
 very cry which has come to us from the supreme 
 court of the United States, from federal lawyers, 
 from every man opposed to the practical sover 
 eignty of the people, who has taken up this sub 
 ject, and who contends that the people shall not 
 amend their Constitution without the legislature 
 will give them permission ! The gentleman says 
 farther, " do not insert this provision, because you 
 are undertaking to say what the people in 1873 
 shall do towards amending their Constitution ! " 
 But what can they do without it, according to his 
 doctrine ? If we do not incorporate such a pro 
 vision into our fundamental law, he maintains, 
 the United States court maintain, and all lawyers 
 who deny the people s sovereignty in practice, 
 hold, that at the first step the people take for 
 calling a meeting for a Convention, or for deposit 
 ing votes for delegates, the legislature has the 
 power to pass an act declaring it a riotous pro 
 ceeding ; and the military, and the army and navy 
 of the United States may be called out to put it 
 down. Now, instead of the revolution of blood 
 which the learned gentleman from Cambridge, 
 (Mr. Parker,) allows the people as their only 
 remedy, I want a revolution of peaceful change, 
 when the people desire to reform government ; 
 and for the sake of securing that object, now 
 
 denied by the judges and lawyers, I desire to see 
 incorporated in the Constitution the amendment 
 I have offered, or one to the same effect, for I go 
 for the substance only. 
 
 For the sake of the present generation, for the 
 sake of the reaffirmation of a great truth now 
 denied, and for the sake of posterity, I hope it 
 may be inserted in this Constitution as a funda 
 mental law, and become a precedent for all peo 
 ple who mean to guard their inalienable rights 
 against constructive usurpation. 
 
 Mr. PARKER, of Cambridge. I misunder 
 stood the gentleman for Wilbraham, (Mr. Hal- 
 lett,) or he misunderstands me. I certainly have 
 given no indication of any wish to confound the 
 people with technicalities. If that was my desire 
 I should leave this provision to be adopted, and 
 leave the people to be confounded in their attempts 
 to ascertain its meaning. On the contrary, I 
 desire if possible, that whatever provisions are 
 inserted in the Constitution, shall be so free from 
 technicalities that there will be no doubt respect 
 ing their meaning, and no difficulty in readily 
 understanding them. I have opposed nothing, 
 nor have I advocated anything. I rise merely 
 for the purpose of pointing out for the considera 
 tion of the members of the Convention the lan 
 guage as it stands, and to inquire what construc 
 tion is to be placed upon it ; indicating, perhaps, 
 the opinion that the response of the people to the 
 question sent to them, if that is to be regarded as 
 the effective thing in the calling of the Conven 
 tion, will confine the number of delegates and 
 the manner of choc sing them to the mode pro 
 vided by the Act of 1852 ; and then adding the 
 inquiry whether there had been anything inserted 
 in the proposition which provides for a different 
 rule of representation ; and if so, whether that 
 was not contrary to the question submitted to the 
 people, and their response, and to other provis 
 ions immediately connected with it ? 
 
 The gentleman speaks of the Act of 1820, and 
 says that the language of the Act of 1852 is iden 
 tical with that of the Act of 1820. What of that ? 
 There is nothing in the Constitution referring to 
 the Act of 1820, and it is not proposed to insert 
 anything referring to that Act. The point of the 
 inquiry is, what will be the effect of this pro 
 vision referring to the Act of 1852, if inserted in 
 the Constitution ? The Act of 1852, as I said 
 before, required the election in 1853 to be accord 
 ing to the provisions of the laws then in force. 
 It has been contended here that the response of 
 the people to the question in the Act of 1852, " Is 
 it expedient that delegates be chosen?" &c., 
 adopted all the provisions of that Act in such a 
 manner, that whether regarded as a law or as a 
 
310 
 
 REPORT FROM A COMMITTEE. 
 
 [65th day. 
 
 Saturday," 
 
 PARKER HALLETT BATES BUTLER. 
 
 [July 23d. 
 
 " proposition," the legislature could not change 
 them at all ; that the response of the people gave 
 life and efficacy to the Act ; and that it was not in 
 the power of the legislature to modify it. I con 
 tended that the legislature had such power, and 
 power to repeal it, because it was but a law ; and 
 that the vote of the people being merely that it 
 was expedient that delegates should be chosen 
 without any declaration respecting time or man 
 ner, had no operation to change the character of 
 the Act itself; and I am ready to stand by that 
 opinion, notwithstanding all which has been urged 
 against it. 
 
 But if this provision is made a part of the Con 
 stitution, the legislature cannot repeal or modify 
 it ; and if the question is put whether a Conven 
 tion shall be called in a particular manner, and 
 answered in the affirmative, the effect of that 
 response may be conclusively to determine the 
 mode and manner. Then comes the question, is 
 the provision referring to the laws in force at the 
 time, for the election of representatives, consis 
 tent with such a response ? And farther, is that 
 provision consistent with what is immediately 
 connected with it, viz. : that delegates shall be 
 chosen to meet in Convention in the same man 
 ner as is provided in the 2d, 3d, and -1th sections 
 of the Act of 1852. 
 
 Mr. HALLETT. Does it say that they must 
 be chosen in the same manner as by the Act of 
 1852 ? I will ask the gentleman if the 2d, 3d, 
 and 4th sections of the Act of 1852 are inconsis 
 tent with this provision ? whether they do not 
 relate to the meeting and the powers of the dele 
 gates ? 
 
 Mr. PARKER. ; The gentleman introduces 
 another question of construction. The 2d sec 
 tion of the Act of 1852, has nothing in relation to 
 the meeting of delegates in Convention, or their 
 powers ; and I think that it relates exclusively to 
 the manner of their choice. I ask, then, whether 
 the last part of the proposition, as amended, is 
 consistent with itself; and whether the whole 
 proposition must not be construed together in 
 such a manner, that the elections will have to be 
 made in conformity with the 2d section of the Act 
 of 1852, and whether the new matter introduced, 
 providing for conformity with the laws in force at 
 the time, for the election of representatives, must 
 not be rejected on account of its inconsistency 
 with the other provisions. It only shows that we 
 are involved still farther in difficulties respecting 
 the construction and meaning of this proposition. 
 
 Mr. BRIGGS. I suppose the Convention will 
 hardly take the vote upon this question to-night. 
 I move, therefore, that the Convention do now 
 adjourn. 
 
 The question was taken on the motion, and it 
 was agreed to. 
 
 So the Convention adjourned until to-morrow 
 at nine o clock, A. M. 
 
 SATURDAY, July 23, 1853. 
 
 The Convention assembled pursuant to adjourn 
 ment, and was called to order by the President 
 pro tempore, at 9 o clock. 
 
 Prayer by the Chaplain. 
 
 The journal of yesterday s proceedings was read. 
 
 Report from a Committee. 
 Mr. BATES, of Plymouth, from the Committee 
 on Reporting and Printing, submitted the follow 
 ing Report : 
 
 COMMONWEALTH OF MASSACHUSETTS. 
 
 In Convention, July 23. 
 
 The Committee on Reporting and Printing, to 
 whom was referred the subject of reporting and 
 publishing the proceedings and debates of this 
 Convention, have considered the same and report : 
 Inasmuch as much of the labor of printing, pub 
 lishing and binding the Reports will not be com 
 pleted until after the Convention shall have closed 
 its labors, the Committee recommend the adop 
 tion of the following resolution. 
 For the Committee, 
 
 M. BATES, JR., Chairman. 
 
 Resolved, That the Committee appointed to su 
 perintend the publication of the reports of the 
 debates and proceedings of this Convention, be 
 authorized, in connection with the President and 
 State Auditor, to allow the accounts for such 
 service, and the Governor is hereby requested to 
 draw his order on the treasury for the payment 
 of the same. 
 
 The resolution was ordered to a second reading 
 to-morrow. 
 
 Judicial Tenure of Office. 
 
 Mr. BUTLER, of Lowell. I ask leave to in 
 troduce a resolve, which I will move to refer to 
 the Committee of the Whole. 
 
 The resolve was read as follows : 
 
 Resolved, That all judicial commissions which 
 shall issue to any person from and after the first 
 day of August, in the year one thousand eight 
 hundred and fifty-three, shall confer no greater 
 tenure of office than the term of ten years. 
 
 Mr. BUTLER. The Convention having 
 adopted a resolution that hereafter the term of 
 judicial office shall be ten years, and having 
 adopted another rule, to wit : that all judges now 
 
65th day.] 
 
 JUDICIAL TENURE OF OFFICE. 
 
 311 
 
 Saturday," 
 
 BUTLER SCHOULER. 
 
 [July 23d. 
 
 in commission shall hold their offices for life, 
 and as this Constitution cannot be adopted and 
 go into effect until some future day, the office of 
 the resolve which I have now introduced, is to 
 do what must be done by design, or happen by 
 accident, to wit : limit the term of office of those 
 judges who may receive their commissions before 
 the Constitution goes into effect. By a well- 
 known mle of construction, the term would refer 
 to the day on which the Constitution shall go 
 into effect, or be ratified by the people, as for 
 example, say the first day of January next. Now 
 suppose that between this and the first day of 
 January, three or more of the judges should die 
 or resign ; then, Sir, we must, as in the case of 
 judge of probate, appoint some live young Whig, 
 I suppose, who might outlive all of us. To avoid 
 this, I propose this resolution ; and I hope it will 
 meet the concurrence of all those who wish to 
 deal fairly in this matter. And now that I am 
 upon this topic, let me say a word concerning the 
 judge of probate for Essex County. 
 
 The PRESIDENT. The Chair must interrupt 
 the gentleman. It is not in order to discuss the 
 general question of the judiciary upon this mo 
 tion, but only the propriety of referring this reso 
 lution to the Committee of the Whole. 
 
 Mr. BUTLER. I desire to show the necessity 
 for the adoption of this resolution ; and I intend 
 to ask a suspension of the rule, so that, dispensing 
 with the formality of sending it to the Committee 
 of the Whole, it may at once pass to a second 
 reading. And without meaning to say anything, 
 of course, against the present judiciary, supposing 
 they would do as all others would under like 
 circumstances, I say, suppose either from acci 
 dent, or necessity, or design, there should be a 
 vacancy, and nothing should be done to alter the 
 tenure of office while this Convention is going 
 into effect, how would the matter stand ? In one 
 of the States of this Union, when an alteration 
 was made in the Constitution of the State, which 
 provided that the commission s of the then exist 
 ing judiciary should expire, and that they should 
 not be eligible to reappointment, but that new 
 judges should be appointed to hold office for 
 twelve years, an old and shrewd judge resigned 
 his commission just before the Constitution took 
 effect, so that he was no longer judge, and as soon 
 as it went into operation he was reappointed, and 
 had twelve years more added to his judicial life, 
 and actually died in office. 
 
 Mr. HOPKINSON, of Boston. He must have 
 been a Democrat. 
 
 Mr. BUTLER. I supoose he must have been 
 for this reason, that he had all the qualities of 
 mind to make a good Democrat, except, perhaps, 
 
 honesty of purpose. He had great ability, and if 
 he had had honesty, he would have been a good 
 Democrat. I move you, Sir, that the rule be sus 
 pended, and that this resolution be put upon its 
 second reading. 
 
 Mr. SCHOULER, of Boston. I do not know 
 as I understand the intent or purpose of the reso 
 lution which has just been submitted by the 
 gentleman from Lowell ; and I desire to ask that 
 gentleman, whether he intends to incorporate that 
 resolution into the Constitution, or whether it is 
 to be a law outside of that instrument ? I should 
 like to know if we have any right to make laws 
 in this Convention r By the Constitution of the 
 State it is required, that the Senate and House of 
 Representatives shall make the laws; and as I 
 understand this resolution to be no more nor less 
 than a law, I want to be informed from what 
 quarter this body obtains the power to act upon 
 it ? If the gentleman intends to incorporate it 
 into the Constitution, it is another matter. I 
 should like to hear the resolution read once more. 
 
 The resolution was accordingly read. 
 
 Mr. SCHOULER. I would inquire if it is 
 not of the character of an ex jiost facto law r It 
 does not propose any amendment to the Constitu 
 tion, for we have already acted upon that part of 
 the Constitution, relating to the judiciary, but 
 is distinctly in the shape of a resolve, and must 
 be acted upon as a law. 
 
 Mr. BUTLER. With a view simply of reply 
 ing to the gentleman from Boston, I would say, 
 that I have submitted this resolve to the best 
 lawyers of the Convention, and they have been 
 unanimous in the expression of their sentiments 
 in its favor ; and, if necessary, I will call on any 
 one of those gentlemen to say, whether any such 
 difficulty exists, as has been suggested by my 
 friend. 
 
 The PRESIDENT. The Chair would inform 
 the gentleman from Lowell, that all debate upon 
 this question is oi;t of order, although explana 
 tions may be allowed to be made. 
 
 Mr. SCHOULER. As I desire to examine this 
 subject more particularly, I ask that the resolu 
 tion may be placed in the Orders of the Day, for 
 to-morrow. 
 
 The PRESIDENT. The question is on the 
 motion of the gentleman from Lowell, to suspend 
 the rules. 
 
 The question then being taken upon the motion 
 to suspend the rules, it was, upon a division 
 ayes, 141 ; noes, 52 decided in the affirmative. 
 
 The question then recurred on the motion of 
 Mr. Schouler, to place the resolution in the Orders 
 of the Day, for to-morrow, and it was decided in 
 the affirmative. 
 
312 
 
 CONSTITUTIONAL CONVENTIONS, &c. 
 
 [65th day. 
 
 Saturday,] 
 
 CUSHMAN GRISWOLD BIUGGS. 
 
 [July 23d. 
 
 Submission of Amendments to the Constitution to 
 
 the People. 
 
 On motion by Mr. CTJSHMAN, of Bernards- 
 ton, it was 
 
 Ordered, That the Committee on Reducing 
 Amendments to the Constitution to a suitable 
 form to be submitted to the people, be requested 
 to prepare an Address to the people to accompany 
 the Revised Constitution. 
 
 Orders of the Day. 
 
 On motion by Mr. GRISWOLD, for Erving, 
 the Convention proceeded to the consideration of 
 the Orders of the Day, the first item being the 
 subject of 
 
 Amendments to the Constitution. 
 
 The pending question being on Mr. Briggs 
 amendment to the amendment of the gentleman 
 for Wilbraham, (Mr. Hallett). 
 
 Mr. BRIGGS, of Pittsfield. I said, last eve 
 ning, when I moved an adjournment, that I 
 wished to say a few words upon this subject ; 
 and I now embrace this opportunity of present 
 ing a few thoughts for the consideration of the 
 Convention, assuring them that I will occupy but 
 a few minutes of their time. The gentleman 
 from Lowell, (Mr. Butler,) and the gentleman 
 for Wilbraham, (Mr. Hallett,) said, that the 
 issue presented upon the amendment I offered, 
 was this : whether the question should be left 
 open without any provision, as to the manner in 
 which the Convention should be called, the man 
 ner in which it should be conducted, or whether 
 we should settle these matters. I agree with these 
 gentlemen, so far as my proposition is concerned, 
 that this is the precise point, and they met that 
 point manfully and directly in their arguments. 
 As to the character of the existing law of 1852, 
 its meaning, and the construction which should 
 be given to it, the gentleman for Wilbraham, 
 (Mr. Hallett,) and the gentleman from Cambridge, 
 (Mr. Parker,) differ widely. Then let me ask in 
 the outset, would it be wise to incorporate into the 
 Constitution a law about which legal gentlemen 
 upon this floor differ, and -which is to be binding 
 upon the people in all future time ? I do not dis 
 pute that it may be right to provide, in the most 
 general, clear, and positive terms, that the legis 
 lature hereafter may yearly, if they please, sub 
 mit the question to the people ; and that once in 
 twenty years the people shall, without the inter 
 ference of the legislature, vote directly upon the 
 question whether they will have a Convention 
 or not; but I do not think it wise or just, that 
 they shall be compelled to vote, whether they 
 will have a Convention or not, formed in a par 
 
 ticular way, under a law which has been made 
 by a legislature years and generations past ; and 
 that they shall not be left themselves to make 
 their own provision, through their own legisla 
 ture, chosen by themselves. I do think, as I 
 said before, that it infringes upon that great right 
 which the gentleman for Wilbraham is so anxious 
 to preserve ; and it confines the people down to a 
 particular form in which they shall vote upon the 
 question of calling a Convention. It says to 
 them, you may have a Convention if you choose 
 to vote for having it called in a specified manner, 
 and under a law regulating the particular mode 
 in which that Convention is to be organized. It 
 seems to me if gentlemen will reflect upon the 
 subject, they will see, that it is infringing upon 
 the rights of those who are to follow us. It is 
 placing chains and fetters about them so far as 
 the mode of calling a Convention is concerned, and 
 so far as concerns all the steps which the legisla 
 ture must take in regard to it. Is it right so to 
 do ? The amendment I have offered, proposes 
 to leave this subject open. It proposes to do sub 
 stantially, what the Report of the Committee pro 
 poses to do. I say while I prefer my own 
 amendment, or that of the gentleman from 
 Cheshire, (Mr. Cole,) to the other amendments 
 which have been offered, I should much prefer to 
 take the resolutions reported by the Committee, 
 which it seems to me, present the matter clearly, 
 distinctly, and simply, of submitting the question 
 to the people, whether they will have a Conven 
 tion ; and if they decide to have it, a legislature 
 chosen by themselves shall pass all the necessary 
 measures in order to carry out that expression of 
 the people. 
 
 Then, Sir, as I said before, I do not understand 
 precisely what my friend for Wilbraham means 
 by that portion of the Bill of Rights which he 
 has appended to his proposition. He says, in 
 reference to my reading of the Bill of Rights 
 here, that I seemed to have overlooked the fact 
 that that Bill of Rights furnishes no means for 
 carrying itself out. What does his amendment 
 do ? It provides two modes in which the people 
 may have an opportunity to vote on the question 
 of calling a Convention ; a specific mode for call 
 ing a Convention, and then it declares that this 
 shall not be an infringement of that reserved, 
 sovereign right, which the people have to alter, 
 amend, or change their form of government as 
 they please. 
 
 Well, Sir, if he means by that, that it shall be 
 an effective, operative proposition, what is it ? 
 He has provided two modes for calling a Conven 
 tion, and then declares that shall have no effect 
 whatever ; that the people are not bound by it. 
 
65th day.] 
 
 CONSTITUTIONAL CONVENTIONS. 
 
 313 
 
 Saturday,] 
 
 BBIGGS. 
 
 [July 23d. 
 
 They may regard, or disregard it. They may rise 
 up in their sovereign capacity, and constitutionally 
 too, and amend the Constitution in any manner 
 which they see fit. As I have often said, I be 
 lieve in the sovereignty of the people, in their 
 right and power to do as they please ; and those 
 people have a right to make a Constitution, and 
 when they have made that Constitution they are 
 bound, all the people of the State are bound by 
 the Constitution which they make, until it shall 
 be altered, changed, or abolished, in just such a 
 mode as they shall provide that it may be altered, 
 changed, or abolished. Is this an infringement of 
 the sovereignty of the people ? Sir, what do you 
 want of a Constitution ? It is, to be sure, to pro 
 vide a government ; but that government is to 
 make laws, and those laws are to bind the people 
 who have made the Constitution, and who will 
 be the law-makers. And all the people, as well 
 as every individual of the people, are bound by 
 the laws made in conformity to the Constitution, 
 are bound by that Constitution itself, which they 
 have adopted and confirmed. And, whenever the 
 people, whether in a republican government, or a 
 despotic government, take the matter into their 
 own hands in a way not provided in the Consti 
 tution, and undertake to change the Constitution, 
 whether by the peaceable mode of the ballot-box, 
 or amidst the clash of arms, it is a revolution. 
 And, whenever the people choose to have a revo 
 lution, they may have one if there are enough of 
 them to carry it through. But, we propose to do 
 things differently ; we are a constitutional people 
 as well as a free people. 
 
 Now, Sir, the proposition of the gentleman 
 provides, that the legal voters shall, at stated 
 periods, express their wish upon the subject of a 
 Convention ; but his last proposition is, that the 
 people, whenever they please, may as they please, 
 amend, change, or abolish their government. 
 Does he mean by that clause the legal voters, or 
 does he extend his proposition farther, and go 
 with my joung friend who spoke yesterday, (Mr. 
 Burlingarne,) and say that the people include 
 every human being in whose bosom God has 
 planted a rational and immortal soul ? 
 
 Sir, the Rhode Island case has been referred to 
 a case in which my friend for Wilbraham has 
 been once a legal actor, and which he has studied 
 deeply, and made himself acquainted with the 
 great principles of freedom applied to it. The 
 Rhode Island case is precisely this : the legal 
 voters of Rhode Island refused to alter their Con 
 stitution ; but a large class of citizens of Rhode 
 Island, from whom this privilege of voting, was 
 withheld by the existing Constitution, took it into 
 their own hands, with a portion of the legal 
 
 21 3 
 
 voters, to change their government ; and they did 
 \tproforma, and organized a government. That 
 was the time when it was said, that the accidental 
 president interposed against liberty, and in behalf 
 of the existing government. That question was 
 taken up to the highest tribunal in the land and, 
 let me tell my young friend, a Democratic tribunal 
 and they declared, what ? They declared the 
 great principle, that the regularly constituted con 
 stitutional government could not be overthrown, 
 except through constitutional and legal means. 
 
 Now, suppose that the legislature intermediate 
 between these two periods of twenty years, should 
 refuse to put the question to the people, and that 
 the men of Massachusetts, not the legal voters 
 alone, but these thousands and thousands of 
 foreigners who are daily corning in among us from 
 the land of oppiession and wrong, should take it 
 their into heads to say, this is our home, we have 
 come here to live, we do not approve of your 
 naturalization laws ; we are men, and the moment 
 that we tread your soil we claim the right to par 
 ticipate in your government. Now, suppose a suf 
 ficient number of legal voters join with them to 
 make a majority of the men of Massachusetts, 
 and they should rise up in their majesty, and 
 reform and alter our government, and take pos 
 session of it through their appointed ofiicers. 
 Would that be a legal government ? Does the 
 gentleman mean, by his declaration of rights, to 
 embrace such a case as that ? 
 
 Sir, another case has been alluded to, the case 
 of Michigan. Little territorial Michigan undertook 
 to form a State government unlike anything 
 which took place in Rhode Island. Michigan 
 was a territory of the United States. Formerly 
 the mode of forming a State government in a ter 
 ritory, was this : congress passed a law author 
 izing the people of the territory to choose their 
 officers and organize a government. But in later 
 times that ceremony has been omitted ; and the 
 people, self-moved, in these territories, chose their 
 officers, appointed their delegates, framed their 
 Constitution, and then went and asked to be- 
 admitted as a State into the Union ; and if they 
 had conformed essentially with the requisitions 
 which had theretofore been observed, congress 
 uniformly has admitted them into the family of 
 States. That was the case with Michigan. My 
 young friend paid a compliment to that sturdy old 
 veteran and patriot, Gen. Jackson, and contrasted 
 him with the accidental president, in the case of 
 Rhode Island. He represented him as interfering 
 and leading little Michigan, from her territorial 
 condition, and placing her among the family of 
 States. Sir, my young friend is a little mistaken 
 about this matter. Gen. Jackson had nothing 
 
314 
 
 CONSTITUTIONAL CONVENTIONS. 
 
 [65th day. 
 
 Saturday, 
 
 BKIGGS HALLETT FIIENCH. 
 
 [July 23d. 
 
 more to do with admitting Michigan into the 
 Union, or forming her Constitution, than Bolivar, 
 in South America. I remember something about 
 that, and how little Michigan came to congress 
 with her representatives and senators 
 
 Mr. HALLETT. I wish to correct one state 
 ment of fact, if the gentleman pleases, at this 
 point. I understood the gentleman to say, that 
 a majority of the people of Ilhode Island, did 
 not vote for forming a new Constitution. 
 
 Mr. BHIGGS. I stated that there was not a 
 majority of the legal voters. 
 
 Mr. HALLETT. Yes, Sir ; there was a ma 
 jority of the legal voters, and of the male popula 
 tion. There was a majority of three thousand 
 freeholders, and a majority of the population. 
 
 Mr. BPJGGS. Then I was mistaken on that 
 point. I remember when little Michigan came 
 and knocked for admission, and I remember when 
 the door was slammed in her face for many long 
 weeks, if not months. And, I can tell you why 
 it was so. It was so, because the three great 
 States that lay south of her, claimed a portion of 
 her territory, and refused to vote for her admission, 
 until that question was settled. And what was 
 the result ? With the same lawless thirst for ter 
 ritory, and disregard for rights and law, that those 
 despots of the European continent manifested 
 when they cut up and divided poor mangled Po 
 land, they persisted in their rapacity until they 
 accomplished their purpose. I remember on an 
 occasion of a debate on that question, of hearing 
 that " old man eloquent," that just and great man 
 who now sleeps at Quincy, say upon this ques 
 tion: "How stands it, who are the parties ? On 
 the one side are twenty-seven representatives from 
 three States, holding more than thirty electoral 
 votes in their hands, and all the force of this great 
 republic, demanding territory from Michigan. 
 On the other hand, stands the little territory in 
 point of numbers, with one delegate on this floor, 
 with a voice, but without a vote, and the princi 
 ples of eternal justice on his side. But, Sir, such 
 are the indications here, that no one can doubt 
 what will be the result." And what was the re 
 sult r Michigan was shorn of a portion of her 
 fairest territory ; it was cut off and given to the 
 spoilers, and then Michigan was permitted to come 
 into the Union. That is not a case at all parallel 
 in support of the case which my young friend so 
 eloquently advocated on this floor. 
 
 Now, without going into the question as to 
 the difficulty which will be encountered by the 
 construction to be put upon the law which it is 
 proposed to incorporate into the Constitution, let 
 me ask you for we all have one interest in this 
 matter ; few of us who act here will ever be con 
 
 cerned in another Convention such as this ; the 
 white and whitening heads around me admonish 
 us that most of us, before that twenty years shall 
 come, will have passed to our account then let 
 me ask each of my associates here, if he thinks 
 he is authorized to impose conditions upon those 
 who are to come after us, as to the mode and 
 manner in which they may hold a Convention ? 
 
 Sir, there is another difficulty. "What do we 
 propose to do ? Sir, what are the provisions of 
 the law which we intend to incorporate here ? 
 Who knows what they are ? Who can rise up 
 and tell us what he is voting upon when he 
 votes to adopt this provision, which requires that 
 when the people wish to call a Convention to 
 alter their Constitution, they shall do it in con 
 formity with a certain law, and of course, in con 
 formity with all the laws which that refers to r 
 Who is there who can rise up and tell us what 
 the law proposes to do in its specific provisions ? 
 We know what the proposition of the gentleman 
 is outside of that law. Suppose a gentleman 
 should vote for this, and it should be adopted into 
 the Constitution ; when his constituents meet on 
 the first of November and they call on him to 
 know why he voted for this amendment, and ask 
 him what he voted for, when he voted for the 
 law of 1852, can he tell them ? Then they may 
 inquire, why did you vote for it ? Suppose my 
 constituents ask me, why did you vote against it ? 
 did you know what it is ? I should say no. I 
 voted against it because I held that we had no 
 right to impose any such conditions, as binding 
 upon succeeding generations in calling a Conven 
 tion, and I did not care what its provisions were, 
 whether wise or unwise. But my objection was, 
 that we had no right to impose such conditions ; 
 that I preferred the course marked out by the 
 Committee who reported the resolution before us, 
 that we should put the question to the people 
 whether they would have a Convention, and if 
 they chose to have one, they could judge quite 
 as well as we can, what sort of law they wanted 
 to govern it, and much better ; and, therefore, I 
 voted against it. But those who vote for it, can 
 give no such reason. 
 
 As I have said before, I should prefer the prop 
 osition of the Committee to the amendment. 
 The amendment which I offer, only restores the 
 amendment of the gentleman for Wilbraham, to 
 the form of the original proposition of the Com 
 mittee. 
 
 Mr. FRENCH, of New Bedford. I simply 
 wish to say, that I am in favor of the proposition 
 of the gentleman for Wilbraham. I desire that 
 there should be incorporated into the Constitu 
 tion an article that will enable the people to have 
 
65th day.] 
 
 CONSTITUTIONAL CONVENTIONS. 
 
 315 
 
 Saturday,] 
 
 FRENCH DAWES. 
 
 [July 23d. 
 
 a Convention without the interference of a sub 
 sequent legislature. 
 
 Being reminded, yesterday, by the gentleman 
 for Wilbraham, (Mr. Ilallett,) that if another 
 party were in power at Washington, that if Gen 
 eral Scott had been elected, this Convention 
 might not have had the opportunity of revising 
 the Constitution, and, remembering the effort 
 that was made by the late legislature to repeal 
 the Act calling this Convention, and, remember 
 ing also, the opinions which have been expressed 
 upon this floor, of a distinguished gentleman in 
 this Convention from Cambridge, (Mr. Parker,) 
 that the legislature, even after we had assembled, 
 had a right to repeal that Act under which we 
 were convened, and send us home, or turn us 
 out of doors, I think it is worth while that we 
 should incorporate something into the new Con 
 stitution, that will obviate that difficulty in fu 
 ture. We know the reverence that some very 
 learned and distinguished gentlemen in this 
 country have had, for law and power, when it 
 was on their side of the question, and how they 
 have expressed themselves with regard to it when 
 it was opposed to them. 
 
 In the campaign of 1840, what did we witness ? 
 A large and powerful party coming into that con 
 test with this motto upon their tongues and upon 
 their BANNEHS : " Peaceably if we can, forcibly if 
 we must." They entered into that contest, and 
 their organs and their speakers put forth these 
 sentiments : we will appeal to the ballot-box once 
 more, and if that is not successful, then blood 
 will flow. 
 
 We will appeal to the ballot-box this time, and 
 if we do not succeed, blood will flow. That was 
 the language of speakers high in authority in the 
 United States ; that was the doctrine which they 
 put forth. They went on to say that the ad 
 ministration had "ruined the country." I will 
 quote their language, Sir. " We will make one 
 more appeal at the ballot-box, and if that does not 
 prove successful, we will march to Washington 
 and drive out these marauders by force." Do gen 
 tlemen deny that ? If they do, I will put in the 
 proof. Now, Sir, when we are revising our Con 
 stitution, remembering these things, I ask you, 
 Sir, if it does not become us to put the citizens of 
 Massachusetts beyond the reach of such men and 
 such a party. Therefore, Sir, let us incorporate 
 into this Constitution a self-acting clause, as it 
 is termed, not for the purpose of putting limits 
 upon the people, as has been remarked by the 
 gentleman who preceded me, but for the purpose 
 of enabling the people to have a Convention to 
 revise their Constitution if they wish, accidental 
 legislatures or accidental governments which 
 
 may be in power to the contrary notwithstand 
 ing. 
 
 Now, Mr. President, the simple proposition is 
 this : shall we put into the Constitution an arti 
 cle that will enable the people, in a plain, legal, 
 constitutional manner, to have a Convention to 
 revise their Constitution, without reference to the 
 party that may be in power at the time ? That is 
 the length and breadth of it ; and I earnestly de 
 sire that every gentleman will weigh this matter 
 remembering the past, and casting his imagina 
 tion forward to the future and on this occasion 
 do something ; yes, Sir, do just that which shall 
 retain or rather leave where we find it in the 
 hands of the people, the power to call a Conven 
 tion to revise, alter, or abolish the Constitution 
 that we may form for them, should they accept it, 
 without the interference of any subsequent legis 
 lature any subsequent body of men, acting as a 
 party, or as a State or General Government. 
 
 Mr. D AWES, of Adams. I think, Mr. Presi 
 dent, that we are in danger of overdoing this mat 
 ter. I, tor one, am disposed to go for the largest 
 liberty ; but, Sir, I cannot go quite so far as the 
 gentleman for Wilbraham is desirous of going. 
 We are told by him, and the gentleman for North- 
 borough, (Mr. Burlingame,) that there are two 
 schools of politics in this matter ; one is the school 
 to which the gentleman says he belongs, of those 
 who desire to give force to the will of the people, 
 no matter how it is expressed ; and the other is 
 the school which would give the will of the people 
 force when legally expressed. The one has charms 
 about it which attracted my friend for North- 
 borough and the gentleman for Wilbraham ; but 
 the other strikes them as horrid. I have nothing 
 to say about those schools, but I think this dis 
 cussion has developed the fact that there are two 
 more schools ; and, for my own part, I wish to 
 have it put upon record to which of these schools 
 I belong. One of these schools is of those who 
 say that we must take care of posterity, and the 
 other school believe in letting posterity take care 
 of themselves. For one, I prefer to let posterity take 
 care of themselves ; I am desirous of letting them 
 have the largest liberty, untrammelled by any re 
 strictions of our day and generation ; and when 
 we shall have provided in the Constitution that we 
 shall submit to the people, that the people may 
 call a Convention just when they please, to alter 
 their Constitution, I think that we shall have done 
 all that can be expected of us by those who shall 
 come after us. But, Sir, when we undertake to 
 provide for them the form and the method of their 
 proceeding, and say that all the wisdom that is to 
 be hereafter in Massachusetts, is to be as nothing 
 in comparison with the wisdom which existed in 
 
316 
 
 CONSTITUTIONAL CONVENTIONS. 
 
 [65th day. 
 
 Saturday,] 
 
 DAWES. 
 
 [July 23d. 
 
 185 2 or 1853, 1 think we are going a little too far. 
 We provide in one part of this resolution that the 
 people shall vote on a call for a Convention just 
 when they please ; and then we also say that they 
 shall vote on one once in tvven ty years, whether or 
 no. This reminds me of the clergyman who made 
 an appointment in this manner : "On the next 
 Sabbath I shall preach in this place, Providence 
 permitting ; and I shall preach here two weeks 
 from this time, whether or no ! " [Laughter.] Let 
 us content ourselves with providing in the Consti 
 tution that the people shall have the right to alter 
 their Constitution by a Convention if they please, 
 and just when they please ; and having provided 
 that, what in the name of reason is the use of 
 saying that every twenty years they shall, whether 
 they will or not, assemble and vote whether they 
 will have a Convention according to a particular 
 form? Do our friends distrust the people that 
 are to come after us ? It seems to me that this is all 
 lip-service. Why, Sir, of all the gods men wor 
 ship, no one is put off with so much pharisaical 
 outside show and lip-service, as this god, the 
 people. Men have been continually getting up 
 I do not mean here, particularly and calling on 
 the people, saying, " Lord, Lord, have we not 
 prophesied in thy name ; and in thy name cast 
 out devils ; and in thy name done many wonder 
 ful works ? " Have we not done this and done 
 that for the dear people ? Sir, it we let the dear 
 people alone, they will take care of themselves. 
 Are gentlemen afraid that in twenty years from 
 this time, the people will be so contrary that they 
 will not do as they have a mind to ? For my 
 own part, I am willing to trust them. When we 
 provide that they shall have a Convention, I am 
 not afraid that any legislature that shall come 
 after us will trouble them. This very cry of our 
 friends the last winter, that the legislature had 
 an idea in their minds that they would trouble 
 the Convention, as my friend for Northborough 
 will remember, raised " the rattling thunder of the 
 people about their ears, and brought down an 
 avalanche of indignation upon them." Why, 
 Sir, it scared them almost out of house and home, 
 when the people rose in their majesty. Now, are 
 our friends afraid to trust the people or the 
 legislature who shall come after us ? If the peo 
 ple want a Convention to amend their Constitu 
 tion, we can here provide for that in the Consti 
 tution which we submit to them. When that is 
 done, I am willing to risk them, and rest there. I 
 would like to see the legislature that would at 
 tempt to interfere with the voice of the people, 
 thus expressed. That, Sir, is a phantom that 
 cannot be raised. We know what awful conse 
 quences, a few months ago, within the recollec 
 
 tion of all of us, visited those against whora the 
 cry was raised, though false, that they intended in 
 the legislature, to interfere with the will of the peo 
 ple in respect to this Convention. But, Sir, is it any 
 worse supposing they should attempt it is it 
 any worse for the legislature of 1873 to undertake 
 to control this matter, than for us to control it by 
 the Act of the legislature of 1852 ? Is the legis 
 lature of 1852 all that is left? Are they the only 
 minds that can provide for arranging the neces 
 sary details of a Convention ? But, to go back to 
 what I said in the first place, what is the need of 
 going farther than this, and saying that for all 
 coming time the people of this Commonwealth, 
 whenever they like it on the first Monday in 
 November, or the first Monday in June, if you 
 please when they shall have so voted, may have 
 a Convention to alter their Constitution ? If you 
 are going to direct that they shall do it so and so, 
 you might as well undertake to provide that 
 the gentleman who now presides over this body, 
 shall be the president of the next Convention, or 
 that my honorable friend for Wilbraham shall 
 represent Wilbraham then ! There is a great 
 variety of details into which there is just as much 
 propriety and necessity for entering, as there is 
 that we should enter into the details that we are 
 providing for in this resolution. Take the four 
 first sections of that Act; and what do they 
 provide for ? Why, Sir, they branch out into 
 details and ramifications of every kind. 
 
 I want to know by what sort of patent right 
 this legislature of 1852 had the exclusive monop 
 oly of deciding the method in which the Consti 
 tution shall be amended. And this is declared 
 by those who say that they want to set the ex 
 ample here. They say that this is the first time 
 and the only time that they shall have ; if they 
 omit to do it then, they omit it forever to say that 
 the people shall alter their Constitution as they 
 please. Now, Sir, the only way to provide that 
 the people shall alter their Constitution as they 
 please, is to say so. The only way to make it 
 secure and certain that the people may alter it by 
 a Convention, untrammelled by legislative action, 
 is to say so ; but do not, in the very voice in 
 which you say so, require them to do it in a par 
 ticular form, for fear that the legislature chosen 
 by the same votes that shall call the Convention, 
 may do what it was so falsely said that the legis 
 lature of the past winter entertained a serious 
 idea of doing, but were frightened out of by the 
 voice of the people. Sir, I belong to that school 
 if my friend from Lowell will permit me to say so 
 that school of "live young men " who are willing 
 to let posterity take care of themselves when they 
 want a Convention, and are not troubled about 
 
65th day.] 
 
 CONSTITUTIONAL CONVENTIONS. 
 
 317 
 
 Saturday,] 
 
 DAWES GKISWOLD NAYSOX HALLETT. 
 
 [July 23d. 
 
 the way they will do it. My impression is, Sir, 
 that we are not the wisest body that ever assem 
 bled, or that ever will assemble. I apprehend, 
 Sir, that there may be such a thing as a legisla 
 ture in 1873, as wise as the legislature of last 
 year, and that it is among the possibilities that 
 there may be a Convention in that year, as wise 
 as this Convention. When we shall have pre 
 pared and submitted to the people a Constitution 
 that shall answer the exigencies of 1853, and 
 meet the present wants of the people of this State, 
 we shall, it appears to me, have accomplished all 
 for which we have been sent here. We shall 
 have done our duty and may be permitted to lay 
 off the robes of office and meet the welcome, 
 " Well done ! good and faithful servants." But, 
 Sir, if we undertake to make a Constitution, not 
 only for to-day, but for all coming time, and to 
 put into our Constitution of to-day that whoever 
 undertakes hereafter to improve upon it, shall do 
 it in a particular form, it seems to me that we are 
 departing from the programme which has been 
 alluded to so often here. We do not find any 
 such authority as this laid down there ; and we 
 shall have gone beyond our commissions if we 
 trouble ourselves about those who are abun 
 dantly able to take care of themselves. I think we 
 have provided already the method of revising the 
 Constitution hereafter. We simply say that the 
 people of this Commonwealth shall have power, at 
 all times, when they shall so choose, to amend 
 their Constitxition by a Convention or otherwise, 
 as shall be legally provided. If anybody desires 
 to have the Constitution amended illegally, he 
 might wish a farther provision. I think it 
 is just as much as we can do to meet the ex 
 igencies of the present time, without troubling 
 ourselves at all about what those who shall 
 live twenty years from this time shall think 
 ought to be done, or the best method of doing 
 it. 
 
 Mr. SIMMONS, of Hanover, obtained the 
 floor, but gave way to 
 
 Mr. GUIS WOLD, for Erving. I understand, 
 Mr. President, that gentlemen who have charge 
 of this subject, are preparing and intending to 
 submit some modification of the substitute upon 
 which we are now acting ; and if this proposition 
 is to be modified hereafter before it shall finally 
 be adopted, it seems to me that we are merely 
 discussing an irrelevant issue, and the time which 
 we spend in discussing the subject now may 
 therefore be lost. I rise, not for the purpose of 
 entering into debate, but for the purpose of mov 
 ing that the farther consideration of this subject 
 be postponed until Monday next, at ten o clock, 
 in order to give the friends of this measure time 
 
 to put their views into such shape as may be ac 
 ceptable to the Convention. 
 
 Mr. NAYSON. I desire to say a single word, 
 Mr. President, in reference to the motion just 
 made by the gentleman representing Erving. I 
 understood the gentleman to suggest as a reason 
 why this subject should be postponed, the fact 
 that gentlemen who were supposed to have this 
 matter in charge, had agreed to a modification of 
 the proposition now under discussion, and that 
 sufficient time had not elapsed to allow that mod 
 ification to assume a definite shape to be presented 
 to the Convention. I wish merely to say, that if 
 the remark of the gentleman for Erving was un 
 derstood to apply to the chairman of the Com 
 mittee to whom that matter was referred, or to 
 any members of that Committee, the gentleman 
 is mistaken in his supposition. I wish to say in 
 justice to my colleagues upon that Committee, 
 that so far as I have been able to ascertain, the 
 views which that Committee have presented, and 
 which are contained in document No. 75, are still 
 entertained without any change by that Com 
 mittee. Although the Committee of the Whole 
 has seen fit to substitute for that Report the prop 
 osition submitted by the gentleman for Wilbra- 
 ham, the members of the Committee have not 
 changed their views, nor is there any probability 
 that any such change will take place in the future 
 discussion of this subject. I do not mention this 
 as a circumstance of any importance, but merely 
 in order to prevent a false impression being de 
 rived from the remarks of the gentleman for Erv 
 ing. So far as I have been able to observe, the 
 Committee concurred entirely in the Report, and 
 whatever may be the ultimate action of the Con 
 vention in regard to it, no change has taken place 
 in the mind of any single member of that Com 
 mittee. 
 
 Mr. GRISWOLD. I wish simply to state 
 that I did not allude to the chairman, of the Com 
 mittee, nor to any members of that Committee. 
 I believe the proposition now under discussion is 
 the substitute proposed by the gentleman for 
 Wilbraham. I referred more particularly to him 
 and to those who were in favor of his proposition. 
 
 Mr. HALLETT. I understand the sugges 
 tion of the gentleman for Erving to be, to 
 postpone the consideration of this question until 
 ten o clock, on Monday. If there is any diffi 
 culty in the minds of gentlemen as to the people 
 having a right to change the Constitution, with 
 out reference to the legislature, so that they sup 
 pose that anything else can be presented, so as to 
 give them that power, I have no objection to this 
 postponement. I have no doubt, however, that 
 the resolves, as they stand now, are perfectly 
 
318 
 
 BANKING, &c. 
 
 [65th day. 
 
 Saturday,] 
 
 DUXCAX SCHOULEII HALLETT DANA FllOTHIXGHAM. 
 
 [July 23d, 
 
 practicable, and involve a principle, which I be 
 lieve the Convention is disposed to adopt. But, 
 if gentlemen are alarmed at the provisions of 
 these resolutions, I have no objection to their 
 postponement until Monday next, when we may, 
 probably, have a fuller house. If, on the other 
 hand, a majority of the Convention present think 
 that the Convention is ready for the question, I 
 should like to have it taken now, so that the 
 matter may be finally disposed of. I think, upon 
 full examination, the resolves will be found to be 
 perfectly satisfactory. 
 
 The motion to postpone the farther considera 
 tion of the resolutions, until Monday next, was 
 agreed to. 
 
 Quorum of the House of Representatives. 
 
 The Convention next proceeded to the consid 
 eration of the resolve on the subject of a Quorum 
 of the House of Representatives ; the question 
 being on the final passage of the resolution, 
 
 Mr. DUNCAN, of Williamstown, moved to 
 lay the Orders of the Day upon the table. 
 
 The motion was rejected. 
 
 Mr. SCHOULEII, of Boston, moved to amend 
 the resolution, by striking out the words " one 
 hundred," and inserting the word " sixty," so 
 that sixty members should constitute a quorum. 
 
 The amendment was not agreed to. 
 
 The resolution was then finally passed. 
 
 Counting and Recording of Votes. 
 
 Mr. DUNCAN, of Williamstown, submitted 
 the following resolution : 
 
 Resolved, That the Constitution ought to be so 
 amended as to make provision for securing, as 
 sorting, counting, and recording of votes, uni 
 formly, in the elections of all officers throughout 
 the State. 
 
 The resolution was referred to the Committee 
 of the Whole. 
 
 Motion to Reconsider. 
 
 Mr. HALLETT, for Wilbrahara, moved to 
 reconsider the vote of yesterday, by which the 
 Convention passed the resolutions in relation to 
 the Council. 
 
 The motion was placed among the Orders of 
 the Day. 
 
 Committee on the Preservation of the Records. 
 
 Mr. DANA, for Manchester, asked to be ex 
 cused from serving on the Committee on the 
 Preservation of Records, being upon two other 
 Committees. 
 
 The request was granted, and Mr. Ilazewell, 
 
 of Concord, was appointed, by the Chair, to sup 
 ply the vacancy thus created in that Committee. 
 
 ^Banking. 
 
 Mr. GRISWOLD, for Erving. I move that 
 the Convention resolve itself into Committee of 
 the Whole, on the resolves on the subject of 
 Banking. 
 
 The motion was agreed to, and the Convention 
 resolved itself into 
 
 COMMITTEE OP THE WHOLE, 
 
 Mr. Butler, of Lowell, in the chair. 
 
 The resolutions were read by the Secretary, as 
 follows : 
 
 Resolved, That it is expedient to insert into 
 the Constitution articles providing 
 
 1. That the legislature shall have no power to 
 pass any act granting any special charter for 
 banking purposes, or any special act to increase 
 the capital stock of any charter bank ; but corpo 
 rations may be formed for such purposes, or the 
 capital stock of charter banks may be increased, 
 under general laws. 
 
 2. That the legislature shall provide by law 
 for the registry of all notes or bills, authorized 
 by general laws to be issued, or put in circulation 
 as money ; and shall require ample security for 
 the redemption of such notes, in specie. 
 
 Mr. FROTHINGHAM, of Charlestown. Mr. 
 Chairman : I will not waste words in urging 
 before this Committee that the subject of the 
 currency is one of great magnitude. It is suffi 
 cient to say that it is a question of so large a 
 character, that I willingly would have avoided 
 the duty of meeting it, and have seen it in the 
 hands of others. But gentlemen whose good 
 opinion I value, did me the honor to request me 
 to bring this matter to the notice of the Conven 
 tion ; and as, in view of the action that was 
 thought to be necessary, only a portion of the 
 great question would have to be reviewed, and as 
 the principles of this portion were simple in their 
 character, and, as I apprehend, as to the action 
 contemplated, could be easily and successfully 
 defended, I agreed to comply with the request. 
 Hence resolves on this subject were introduced. 
 These were referred to a Special Committee. This 
 Committee has on it gentlemen of much experi 
 ence in banking, who take one side or the other 
 of this question. After much deliberation, they, 
 with great unanimity I may say that only 
 three voted against its adoption agreed to the 
 Report that is now under consideration. 
 
 And, in the first place, the action recommended 
 by the Committee does not propose to interfere 
 with existing banks, only so far as to prevent, by 
 special acts, an increase of their capital stock, but 
 
65th day.] 
 
 BANKING. 
 
 319 
 
 Saturday, 
 
 FROTHINGHAM. 
 
 [July 23d. 
 
 it leaves them to be dealt with by the legislature. 
 In the next place, in relation to an opinion prev 
 alent among the members, allow me to say, that 
 the prior action of the Convention, in the matter 
 of the formation of corporations, does not, I 
 apprehend, so much as touch the main and vital 
 point of this Report. 
 
 The Report of the Committee proposes to 
 prohibit the legislature from granting special 
 charters for banking purposes, and to prohibit 
 the increase of the capital stock of any char 
 tered bank by any special act ; but to allow banks 
 to form, or the capital stock of banks to be in 
 creased, under general laws. It proposes, also, 
 to make it obligatory on the legislature, in any 
 general laws they pass in reference to the issue of 
 circulating notes, to require ample security that 
 such notes shall be redeemed in specie. These 
 are the propositions ; and the question is, shall 
 they be incorporated into the organic law of the 
 Commonwealth ? 
 
 The consideration of these propositions opens 
 up the whole question of the currency. To treat 
 this elaborately, it might, perhaps, be considered 
 not only not irrelevant, but proper and even nec 
 essary, to go somewhat over the history of bank 
 ing in the old world, and show how it has been 
 in times past, and how it exists there to-day. 
 But this is not essential to the purpose of explain 
 ing the views of the Report, and will be passed 
 over. And it might not be deemed out of place, 
 to trace somewhat at length the footsteps of 
 banking in our own country, and view it as it 
 has been in the different States from the adoption 
 of the Constitution down to the present time. It 
 would be no hard task to go over the many 
 speeches and statistical tables, on this topic, and 
 present pregnant facts to show our large experience 
 in banking. But this, too, is not necessarily 
 connected with the question immediately before 
 the Committee. But the same remark will hardly 
 apply to the history of paper issues in our own 
 Commonwealth. It may be deemed almost a 
 dereliction of duty not to go minutely over this 
 history. But a brief glance at this past, and a re 
 mark upon it, are all, however, considering the 
 time allotted, that I shall venture to attempt. 
 
 Review the currency question here, on this 
 soil, from the commencement of colonization 
 down to the adoption of the present Constitution, 
 and it will be found that there has been every 
 variety of experience, in the use and the abuse of 
 a paper circulation. For a generation our fa 
 thers got along with a variety of articles for 
 money, among which figured the simple wamp- 
 umpeage of the Indians. Then came the attempt, 
 in 1652, to supply coin from their own mint. A 
 
 private bank was proposed in 1685. In 1690 the 
 colonists first set the example, in their province 
 bills, of a paper issue, which they kept up for 
 sixty years. To this succeeded the famous silver 
 scheme of the merchants, and the no less cele 
 brated land bank scheme of speculators. And 
 this colonial experience was ended, in the paper 
 issue during the Revolution. Surely here is ma 
 terial for a history of no small interest, and one 
 that might be scanned with no little profit. Here 
 are, indeed, most useful lessons. But I shall not 
 go over this detail. 
 
 Take next what immediately concerns the ac 
 tion of to-day the origin and progress of our 
 present system of banking or the history of 
 paper issues from 1780 to our own time. A brief 
 sketch is all that time will allow me to make. It 
 was amidst the suffering and ruin occasioned by 
 the existing paper money that the present system 
 of banking commenced. Let those who think 
 that this suffering was light, go into an investiga 
 tion of the matter. Look at the record ; look at 
 the facts that are thereto be found, a 1 d say whether 
 the suffering was light or not. The State com 
 menced chartering bank capital here in 1781, first 
 with the old Massachusetts Bank, and then with 
 the Union Bank in 1792. In 1802, the banking 
 capital was $2,225,000. In 1816 it was $11,- 
 475,000. In 1829, it was $20,420,000. In 1837, 
 it was $38,250,000. In 1852, it was $43,270,000 ; 
 and in 1853, it is $53,830,000, withapower of issue 
 equal to $67,000,000. Such is a glance at the 
 progress of banking, and the existing capital in 
 banking in this Commonwealth. 
 
 And in reference to the whole of it, com 
 mencing with the commencement of Massachu 
 setts history and coming down to our own times, 
 it may be remarked, that whatever may be the 
 benefits that accrue to commerce and to the com 
 munity from paper money in all its various kinds, 
 Massachusetts has experienced those benefits. 
 And whatever evils there have been in the world, 
 whatever robbery of labor, whatever the mercan 
 tile community have experienced in the matter of 
 fluctuations all the evils have been experienced 
 here on the soil of Massachusetts. Take, for in 
 stance, the period before the adoption of the Con 
 stitution. We had our continual and periodical 
 reversions in trade ; and they were almost inva 
 riably traced, directly or indirectly, to the emis 
 sion of paper. Take the experience we have had 
 since the adoption of the Constitution, and who 
 is there who will not admit that our commercial 
 interests have been put in jeopardy by the enor 
 mous inflations, and, at times, by the alarming 
 insecurity of our paper issues? Need I quote 
 the melancholy statistics of 1837 ? Need I quote 
 
320 
 
 BANKING. 
 
 [65th day. 
 
 Saturday,] 
 
 FttOTHINGHAM. 
 
 [July 23d. 
 
 later or earlier similar statistics ? Is not this fact 
 admitted by one and all ? In reference to this 
 experience of Massachusetts alone, allow me to 
 quote the words of one whose words are apt to 
 be regarded, even by those who may not take the 
 same view of this matter that the Committee 
 take, and apply them to it. It was in 1841 that 
 Daniel Webster said, in one of his remarkable 
 speeches : 
 
 " We are well instructed by experience let us 
 not be lost to experience. Let not all the good, 
 all the comforts, all the blessings, which now 
 seem in prospect for all classes, be blighted, 
 ruined, and destroyed, by running into danger 
 which we may avoid. The rocks before us are 
 all visible all high out of water. They lift 
 themselves up, covered with the fragments of the 
 awful wrecks and ruin of other times. Let us 
 avoid them. Let the master, and the pilot, and 
 the helmsman, and all the crew be wideawake, 
 
 This is an injunction which this Convention 
 may deign to respect. 
 
 In reference to the whole of this experience, 
 too, permit me to make another brief remark. I 
 am sure it would surprise even the intelligent 
 members of this Convention, if they would go 
 back and read the communications which have 
 been made, both to our ancient, great and general 
 court, and to our modern legislature, by patriotic 
 men who have been placed at the head of affairs. 
 They have often, from their high and indepen 
 dent and impartial seat of power, discharged their 
 duty to the people of this Commonwealth, in 
 tliis matter of banking. They have called their 
 attention repeatedly, to the exorbitant paper 
 issues, and recommended the duty of imposing 
 severer restrictions upon them. But I have not 
 time to quote even these to any extent. 
 
 Let me refer but to one. Governor Davis, in 
 1834, only three years before the great bank ex 
 plosion, gave advice as sound as could be given 
 on the subject of banking, to the legislature. He 
 dwelt on the inadequacy of the specie basis, pre 
 dicted loss to bill-holders, and recommended 
 " some way of giving greater stability to the local 
 currency." And what was the effect of that 
 warning ? How was it heeded ? Let the batch of 
 banks that immediately followed, attest. It fell, 
 like a thrice-told tale upon drowsy ears. It was 
 not heeded by the representatives of the people, 
 when they should have looked to the interests of 
 the people. There is one extract from these gub 
 ernatorial messages, that will be quoted, because 
 it seems to meet the present state of things pre 
 cisely, both as to the danger there was and is, and 
 as to the plain duty there is now before us. I 
 
 allude to another gentleman whose name will be 
 received by this Convention, with respect 
 Hon. Edward Everett ; and I refer to what 
 he said to the legislature, in his message of 1838. 
 I ask the attention of the Convention to his few, 
 concise, and true words. It was after the crash of 
 1837, when millions of bank capital were sunk, 
 and hundreds and thousands of laboring men, 
 and of others, suffered in consequence of enor 
 mous defalcations. He says, in his message of 
 1838 : 
 
 " In the system on which our banks are con 
 ducted, the general soundness of a great majority 
 of them is not inconsistent with the impending 
 insolvency of individual banks, kept up to the 
 last moment by possessing a credit with their as 
 sociates, and then sinking at once, to the heavy 
 loss of the unwary, and of those least able to bear 
 it. The possibility of occurrences like these ought 
 to be prevented." 
 
 Here is a precise statement of the working 
 of the system, and its dangers; and here, too, is 
 a true statement of the duty of the people. The 
 possibility mind the word the possibility of oc 
 currences like what then had just been witnessed, 
 ought to be prevented. 
 
 Now, let me ask legal gentlemen upon this 
 floor, let me ask bank directors upon this floor, 
 let me ask one and all, to point to a clause 
 upon the statute book that will be efficient to 
 prevent the possibility of future occurrences just 
 like those which we have had in the past of Mas 
 sachusetts ? Are we not just as likely to have 
 them in the future of Massachusetts ? There are 
 no such provisions of law. There is no adequate 
 preventive security. There is the same system 
 and the same danger. 
 
 Now, assuming that it has been proved, or that 
 it is a fact that cannot be denied, that there has 
 been a great evil in the Commonwealth, I take it 
 there may be a reform work here at least in ref 
 erence to the future. 
 
 If reformers desire to do something, here is an 
 opportunity. They will endeavor to do what can 
 be done to prevent the future occurrence of such 
 evils. And, perhaps, no Convention called to 
 revise the Constitution of Massachusetts, could 
 have been called between the year 1837, and any 
 future time, when this question of the duty of the 
 people, acting in their sovereign capacity, in refer 
 ence to banks and banking, would not have come 
 up, and would not have been obliged to have been 
 met. How shall this Convention meet this duty ? 
 Will they meet it boldly, like men who feel that 
 something should be done to benefit the people, 
 and protect them ? Will they meet it like men 
 
65th day.] 
 
 BANKING. 
 
 321 
 
 Saturday,] 
 
 FROTIIINGHAM. 
 
 [July 23d. 
 
 ready and willing to stand on sound principle, and 
 let consequences take care of themselves ? Or 
 will they meet it timidly, and as though they 
 were afraid to trust the people, as though they 
 were not ready for a sound principle and safe 
 practice ? That is the question. 
 
 And the next thing is, what ought the govern 
 ment to do in its capacity of agent of the people ; 
 and what ought the people, acting as sovereigns, 
 to put into their organic law, as guide and direc 
 tion to their agents, in relation to banks and bank 
 ing ? How shall the Convention meet this duty ? 
 
 To answer this question properly, it may 
 be well to keep in view two things ; one is the 
 trade in money, and the other is the making of 
 money. One ia the use of an article as it is, and 
 the other is the production of an article. In other 
 words, it may be well to keep in view, clearly and 
 distinctly, the difference between these two func 
 tions of banking, to wit : one that of deposit and 
 loans, and the other that of the issue of bills. 
 Now there may be banks of deposit and loan, of 
 heavy capital, without their having a dollar of 
 issue, and therefore, without the danger of their 
 doing any injury to commerce or to the people. 
 There are banks out of the Commonwealth, for 
 instance, which have a large deposit and exchange 
 business, and which do not issue a dollar of paper 
 money. It is apprehended that the duty of the 
 government in relation to these two species of 
 banks, is widely different. 
 
 Take the banks of deposit and loan. Our 
 merchants desire to use a bank for the purpose of 
 placing their money in it for safe keeping. They 
 look around and find an institution which suits 
 them, as to character, locality, integrity of the 
 board of directors, as to prospects of getting facil 
 ities for business, and they choose this bank for 
 their accommodation and become depositors in it. 
 The bank acts on this principle, that though the 
 deposits are liable to be drawn out at any time 
 by the individuals who deposited them, yet that 
 they will not be all drawn out on one day, but 
 that a certain average amount will always be left 
 in the bank. On this average amount they safely 
 make loans, and derive their profits from them. 
 This custom of deposit and loan is carried out by 
 almost all in transactions between man and man. 
 Let the large brokers in State Street, who do a 
 business larger than some of the banks, testify to 
 the extent to which this business of deposit and 
 loans is carried on. Now, is it the duty of the 
 government to come in and guarantee to the indi 
 vidual who lends money in this w r ay to another 
 individual, that it shall be repaid ? I think not. 
 
 Nor has there been any difficulty in" rela 
 tion to that species of banks. They do not add 
 
 at all to paper expansion and its varied evils. 
 Take, for an illustration, the Scotch banks, though 
 I am aware that these banks have the power of 
 issue. There has been a system of banking in 
 Scotland for one hundred and fifty years. And 
 it is an established fact, that it has stood through 
 rebellions, through the suspension of specie pay 
 ment by the bank of England, through all com 
 mercial fluctuations ; and during all that period 
 the people of Scotland have not lost so much by 
 the failure of banks, as Massachusetts has in one 
 year ; to say nothing of other States. And what 
 is a distinguishing feature of the Scotch system of 
 banking ? It is the practice of receiving depos 
 its, which has contributed much to make them so 
 safe. They bank, to a very great extent, on exist 
 ing capital. Now banks of that sort banks purely 
 of deposit and loan perform a great and beneficial 
 part in the great business of society. Sound pol 
 icy requires that they should be interfered with 
 as little as possible. Let this business regulate 
 itself. Therefore, the resolve on your table pro 
 poses to leave that deposit and loan business en 
 tirely alone. It does not touch it. It proposes 
 no restrictions on it, but leaves it to the legisla 
 ture ; and those who go into it will have all the 
 security which is afforded by the existing laws. 
 
 The function of banks on which I next propose 
 to remark, is that of making issues or of supplying 
 a paper circulation, ir relation to which there has 
 been and is such endless speculation. It is the 
 peculiar character of this species of credit the 
 character that law has given to it, that makes the 
 interference of government necessary. 
 
 Here it is well to look at things, not theoreti 
 cally, but practically, and to consider certain 
 questions as settled. It is no longer an open 
 question, whether the State has the constitutional 
 power to authorize a paper currency, for the 
 power is in full exercise. It is no longer an open 
 question, whether there shall be a mixed circula 
 tion, composed of paper and coin, for this now 
 mingles in all the daily round of business. Nor 
 is it a question, whether individual credit shall 
 be allowed its natural advantages ; that is, whether 
 individuals of established character for personal 
 integrity and pecuniary responsibility, shall be 
 allowed the full benefit of such reputation, to put 
 out their notes to go as money. Existing penalties 
 have long existed that cut off this natural right, 
 and create a different credit, that goes as money. 
 In a word, a system has had full play for eighty 
 years, and every measure tending to reform, 
 should have reference to it. 
 
 Here, then, exists, in Massachusetts, as in other 
 States, a species of credit that is made by law 
 different from individual credit. It is a paper 
 
322 
 
 BANKING. 
 
 [65th day. 
 
 Saturday,] 
 
 FROTHINGHAM. 
 
 [July 23d. 
 
 currency, authorized by the State, and which the 
 State considers it to be its duty to watch over and 
 protect. And what is this currency ? It consists 
 of notes or bills, payable in specie, at the place of 
 issue, by the power that issues them, without in 
 terest, at the will of the holders of them. It is 
 vital that these bills possess this convertible power, 
 and that there should be confidence that this 
 power is a real power. Now, this element of 
 convertibility is acknowledged to be a vital ele 
 ment throughout the world, or wherever sound 
 banking principles are recognized and acted on. 
 And the public good requires that this confidence 
 should be based on substantial foundations ; and 
 hence every proper method should be taken to 
 secure an ability to exercise this power. For the 
 people have no choice as to the use of what exists 
 as currency. Every one who does business and 
 who here does not do business is obliged to 
 make use of the existing circulating medium, or 
 his business can hardly go on. Thus paper money 
 has become interwoven into the daily transactions 
 of life. With the coin it makes the currency. 
 And this is the life-blood of commerce. If it circu 
 lates through the body politic, sound and healthy, 
 it will exercise a sound and healthy influence ; if 
 it is corrupt and becomes stagnant, it vitiates the 
 commercial world, and indeed affects the interests 
 of the whole public. This cannot be denied. 
 Hence consists the magnitude of this question. 
 Indeed, the regulation of the currency, or fixing 
 the value of coin, is universally regarded as an 
 attribute of sovereignty ; and the emission of paper 
 issues has much to do with this value. Again, I 
 remark, that as to the use of a currency, the peo 
 ple have no choice. They are obliged, of neces 
 sity, to make use of the existing supply. 
 
 Now, the State has assumed the duty of supply 
 ing this currency ; but instead of supplying it by 
 itself directly, it delegates this attribute of sov 
 ereignty, this power to make money, to private cor 
 porations ; and it is the connection of these institu 
 tions with this delegated power, that furnishes a 
 justification for the whole entangling code of laws, 
 in relation to banks, with which the statute books 
 are filled. There is nothing else that would jus 
 tify such a code. And the whole purpose of these 
 laws is, to secure the convertibility, at the will of 
 the holder, of a piece of bank paper, at all times, 
 into cash. That is the end and aim of the 
 whole. 
 
 Now, need facts be adduced to prove that while, 
 tinder the present safeguards, this convertibility 
 is obtained in times of prosperity, yet that it has 
 not been secured in periods of commercial revul 
 sion ? Need time be spent to prove how much 
 the people have suffered from depreciated paper ? 
 
 Need it be shown, that in other times than those 
 of commercial revulsion, that in individual cases, 
 this object has not been reached ? Indeed, who 
 will contend that this vital point has been guarded 
 as it ought to have been ? Who cannot recall, 
 without the aid of statistics, the losses, the enor 
 mous evils, that have flowed from a neglect of 
 this point losses and demoralization experienced 
 in this State alone, to say nothing of what has 
 been seen in other States ? It is a lamentable 
 fact, that evidences of the want of proper care on 
 this point are continually multiplying. Within 
 a short time, close by us, in the State of Connect 
 icut, several banks have exploded, and what 
 security have the bill-holders that the bills will 
 not depreciate, or even that ultimately they could 
 be converted into cash ? 
 
 Now, on what principle has the State acted in 
 reference to a proper and efficient security for the 
 convertibility of paper into specie ? It has passed 
 certain laws, such as they are, it would be easy 
 to enumerate them, but it has left the execution 
 of these laws in the hands of the banks. They 
 determine whether they shall be observed or not. 
 Take, for illustration, one which is considered to 
 be the best of all the laws in reference to bank 
 ingthat vital law, which requires that there shall 
 be a deposit of fifty per cent, of the capital stock 
 in specie, before a bank can go into operation 
 and issue bills. Is it not well known that it has 
 been, and is, systematically violated ? 
 
 But, in the next place, if these laws were ob 
 served, they would not afford efficient protection, 
 because they do not meet the precise point of se 
 curity. Besides, they are based upon a wrong 
 principle. The principle ought to be, that when 
 such a high power as that of sovereignty is dele 
 gated to individuals or corporations, the State 
 should take into its own hands security that that 
 power will not be abused. It should require a 
 bond for good behavior. This it has failed to do. 
 It leaves the fulfilment in the hands of the banks, 
 and hence it is that there has been so much of 
 insecurity and loss in connection with these insti 
 tutions. 
 
 Now, this second provision in the resolve 
 under consideration, is designed to make it 
 obligatory on the legislature to require security. 
 It proposes to the people to say to the legisla 
 ture : "If you charter any banks, if you allow 
 any paper money to be issued by the banks, it 
 shall be your duty to require that a register of 
 all such money shall be kept, and that ample 
 security shall be furnished that all such money 
 shall be convertible into specie whenever it may 
 be required." That is in the nature of a simple 
 rule. It leaves all matters of detail entirely in 
 
65th day.] 
 
 BANKING. 
 
 323 
 
 Saturday,] 
 
 FROTHINGHAM. 
 
 [July 23d. 
 
 the hands of the legislature. This power is left to 
 devise ways and means relative to what that se 
 curity shall be. 
 
 But, the question may be asked, what does the 
 phrase " ample security " mean ? Does it mean 
 that there shall be a deposit of stocks, of real 
 estate, of bonds and mortgages, or of specie in the 
 hands of the authorities of the Commonwealth ? 
 The answer is, that it leaves the whole matter to 
 the legislature. We merely say that if they 
 authorize banks to issue bills, they must see to 
 it that they take ample security that the public 
 do not suffer, and are not even liable to suffer, by 
 their issue. I ask if that is not right in princi 
 ple ? Is it asking more than a reasonable and 
 just requirement from those to whom is delegated 
 such a splendid privilege ? Is it too much to 
 ask, from currency makers, a bond of indemnity ? 
 Such a bond, the honest will not object to giv 
 ing, while in case of fraud, it ought by all means 
 to be held by the public. 
 
 In the second place, this security principle is in 
 accordance with sound commercial principles. It 
 will make the notes issued by banks resemble bills 
 of exchange, by means of which such an immense 
 business is done. Now, what is it that makes 
 bills of exchange, in general, so convenient and 
 safe ? Why is it that, comparatively speaking, 
 they perform their office so regularly, without 
 interference by government, and subject only to 
 the laws that govern trade ? It is this : because 
 behind each bill of exchange there is property 
 against which the bill is drawn, and which accom 
 panies it to the place of destination, and the 
 sale of which satisfies the face of the bill. That 
 is the whole of it. It is upon this principle that 
 the whole export and import trade of the country 
 is carried on. It is upon this principle that the 
 immense inland trade along the great lakes, and 
 up and down the Mississippi, and to and from 
 the ports of the Atlantic and Pacific, is carried 
 on. When the total of all this is added up, 
 the amount will be found to be enormous. It 
 cannot be less than ten or twelve hundred mil 
 lions annually. And all this immense transfer goes 
 on regularly, safely, each bill of exchange con 
 tinuing to be good as long as the property behind 
 it is good. In this way the bill quietly performs 
 the function of money. 
 
 Now, the benefits of bills of exchange, no one 
 will deny. Nor are these benefits counterbalanced 
 by enormous evils, as in the case of bank issues. 
 But why is it that the ruinous fluctuations in 
 trade, and commercial revulsions are never 
 ascribed to the operation of these bills ? Who 
 ever hears such mischief laid to their door ?" Why 
 is it that this cannot justly be done ? Here in 
 
 this country alone, is paper of this sort to an an 
 nual sum of a thousand millions of dollars, and 
 yet no one talks of its being an inflated paper. It 
 is because such bills are not all credit. It is be 
 cause have behind them a basis of value. As long 
 as the property behind bills continues its value, 
 the bills will be good. Hence it is that they can 
 not be the cause of the fluctuations of trade. 
 Now, compared with the amount of bills of 
 exchange, the paper circulation is small ; and yet 
 it is to the working of this, to this paper issue, 
 that these fluctuations and revulsions are almost 
 exclusively and justly charged. This is because 
 these bank issues are based on credit, and not on 
 property. They are based on mercantile paper. 
 Now in this, one piece of property, in its various 
 exchanges as it passes from hand to hand, often 
 becomes the basis of several pieces of discounted 
 paper, each of the same value as the first; or 
 worse still, they are based on accommodation 
 notes, made without the transfer of a dollar of 
 property. Now, can there be any other differ 
 ence between the two, bank notes and bills of 
 exchange ? Bills of exchange have behind them 
 property upon which they are based, while paper 
 money is based upon credit, and often credit 
 extended to its utmost bounds. That is the differ 
 ence, and that is the only difference between 
 them. Therefore, to make paper circulation as 
 safe as bills of exchange, it is necessary to have 
 it based upon the same principle. If it be 
 required that property, that value, to the amount 
 of the paper circulation issued, shall be deposited, 
 as a collateral bond of security, there will be no 
 more trouble in relation to it. That is the princi 
 ple upon which the paper circulation of Massa 
 chusetts ought to rest. It is a sound principle. 
 It is an impregnable one. Let it be proposed to 
 the people. When they have adopted it and when 
 it comes to be acted on by their agents, they will 
 be secured against the immense losses by this 
 paper circulation such as they have suffered in 
 the past ; and if they will look into it and under 
 stand it, they will sanction the principle. 
 
 And such is the growing demand for bank 
 capital, that the adoption of it, or of some re 
 straint, has got to be a matter of absolute neces 
 sity. There is a strong tendency to the creation 
 of bank capital in times of inflation. Such times 
 now exist. In this State, the increase has been 
 very great. In 1851, there were seven millions 
 authorized ; in 1853, ten millions. Is it neces 
 sary to go into details as to the manner in which 
 this increase is commonly obtained ? At the last 
 session, such was the predicted effect of previous 
 grants of capital, eighteen millions of capital were 
 applied for, and ten of it Avere granted. But who 
 
324 
 
 BANKING. 
 
 [65th day. 
 
 Saturday,] 
 
 FfiOTHINGHAM. 
 
 [July 23d. 
 
 justifies the legislature in granting such an in 
 crease ? Did the public good demand it ? Is 
 this the opinion of our soundest commercial men ? 
 Is it the general opinion that this was a wise 
 policy ? Is this the language heard on every 
 side, in the streets, in the press of all parties ? 
 Then why was the grant made? Because the 
 power of interest was too strong for the resistance 
 of principle. The advocates for a sound policy 
 were powerless before the fearful combination 
 arrayed against them. And so it will be sure to 
 be in the future. The great boon is to obtain 
 the power of issues, and this, too, in such a way 
 that individual credit may be turned into the 
 article called a currency. This paper money is 
 the insane root that takes the reason prisoner. 
 It is this that utters the horseleech cry. The 
 more bank capital of this sort there is created, the 
 more paper issue there is authorized, the greater 
 will be the demand for more. This is the natural 
 law of credit. It is imperious in its demand. Its 
 condition must be complied with. Nothing is 
 more certain than this : that the more paper issue 
 there is authorized, the more there will be called 
 for, and, in fact, obliged to be authorized. That 
 is the developed law elsewhere. That has been 
 the developed law here, on this soil, and from 
 the beginning of the paper career in Massachu 
 setts, down to this hour. Will any say that 
 it will be safe to go on ? But how can it be 
 checked ? If any mode can be devised to do it, 
 will it not be wise for the people, in their sover 
 eignty, to adopt it ? 
 
 The only practicable thing that promises to 
 check it, is for the people to make a rule that, 
 in future, their agents, the legislature, when 
 they delegate this attribute of their sovereignty 
 of making money, shall require a bond of indem 
 nity for a faithful execution of the trust. It is 
 to require them to take ample security that what 
 they authorize, and assume to protect, as money, 
 shall, under no circumstances, become depreciated 
 and valueless. Unless the people say to their 
 agents " you shall not allow any more paper 
 money to be issued, unless you take from those 
 you allow to issue it, ample security," you will 
 have this creation of more and more paper money 
 going on, from year to year, until there is another 
 revulsion, another scattering of wreck and ruin, 
 another general burst of indignation, throughout 
 the Commonwealth, against those who have falsi 
 fied their pledges, and who have proved recreant 
 to the trusts committed to them of protecting the 
 rights of the people. 
 
 Mr. Chairman : The advantages of the adop 
 tion of the security principle as against the credit 
 principle would be numerous. It would tend to 
 
 secure for paper issues a foundation of solid 
 capital ; it would constitute a salutary restraint 
 against extravagant expansion ; it would secure, 
 in its mode of registry, a more careful way of 
 making issues ; it would be more safe for the 
 stockholders ; it would be more secure to the de 
 positors ; it would be more beneficial to the pub 
 lic ; it would maintain confidence in the banks 
 in times of peril ; it would give to each bank an 
 individual character, and abasis of independence ; 
 it would tend to impel an increase of specie ; 
 and in its general feature of caution and safety, 
 promote honesty, and thus guard against that 
 demoralization that has so marked the history of 
 banking ; while, under general laws, it would de 
 prive banking of its monopoly feature, and would 
 here, as it does wherever the security principle 
 has been tried, allow capital to go into bank busi 
 ness, and out of it, as the wants of trade dictate. 
 
 This policy would guarantee the public that 
 paper issues were on solid capital, upon actual 
 value, that could not be disputed. Supposing 
 that the ample security which the legislature 
 would require would be a deposit of value, as 
 a condition for the emission of paper, as it is 
 wherever this principle has been applied, then 
 this would be a requirement which those that 
 issue paper could not evade. They must provide 
 fixed capital before bills can be obtained, and no 
 subsequent mismanagement will be able to scat 
 ter this cnpital, because it will be out of the power 
 of the banks. Nor can the same deposit answer 
 for half a dozen institutions. Now take the law 
 as to specie, and who does not know that this 
 is systematically violated ? But those who started 
 such banks, in too many instances, have not been 
 capitalist*, but money borrowers. They borrow 
 the very capital on which their banks are estab 
 lished. There is reason to believe that no small 
 portion of late applicants for banks, have been of 
 this class. Take the last application for eighteen 
 millions of bank capital. Who supposes that 
 there was this amount of funds unemployed, and 
 ready to be invested in banks ? No one. A 
 portion of it may have been ready for such invest 
 ment. I do not deny this. It is difficult to de 
 termine, however, how great a portion. But few 
 will deny that the balance would have been bor 
 rowed capital. Now if the applicants for new 
 banks were required to deposit actual value be 
 fore they made issues, it would do away with this 
 evil of credit banking. 
 
 This policy will be a restraint on bank ex 
 pansion. That such restraint would be salutary, 
 few will deny; that it would prove a perfect 
 check on expansions, is not pretended. Such an 
 issue has been a great and overpowering evil 
 
65th day.] 
 
 BANKING. 
 
 325 
 
 Saturday,] 
 
 FK.OTHINGHAM. 
 
 [July 23d. 
 
 throughout the whole of our banking experience. 
 It has been this that has fostered speculation, 
 laid the foundation of sudden changes, raising 
 prices one day and lowering them the next day, 
 and thus creating those fluctuations that are the 
 bane of trade. It is this that has created that 
 feeling of insecurity which has existed in relation 
 to banks. Now, upon what calculation is it that 
 banks, with so small an amount of specie, issue 
 such Hoods of paper ? Why, upon the calcula 
 tion, the hope, the belief, that they will never be 
 called on to redeem this paper in specie that 
 they never will be required to redeem their obli 
 gations. How many banks expect to be called 
 on to redeem its issues, in specie ? Is this the 
 principle on which those who are to supply 
 so important an article as currency should act ? 
 The calculation ought to be a widely different 
 one. If this Report be accepted, and the people 
 put it in the Constitution, they will lay down a 
 rule that will require a different policy. They 
 will require the banks to make their issues on 
 the principle that they will, at every hazard, be 
 required to redeem their issues, in specie, and 
 they must make their calculations accordingly. 
 This will make the banks more cautious, and 
 better prepared to meet their issues, when they 
 return upon them. Instead of taking every means 
 to push out their circulation, they will await a 
 legitimate demand for it. Such a restraint could 
 not fail to be a salutary one. 
 
 This policy would be more safe to stockhold 
 ers. The lessons they have received have been 
 severe ones. Let me refer to the millions of bank 
 capital that have been sunk, either by weak or by 
 fraudulent management. Take the immense 
 losses suffered by the badness of mercantile paper 
 in 1837. Would not such a principle as this 
 now advocated, have been a salutary check on 
 the whole of this business ? In the first place, 
 the securities could not have been wasted. So 
 much as was represented in bills would, at least, 
 have been secure. Then, in the next place, the, 
 means could not have been had to carry on such 
 immense defalcations. In every way in which, 
 this can te viewed, this would have proved safer 
 to stockholders. Now who are the stockholders 
 of the Massachusetts banks ? The stock gradual 
 ly passes from first hands into those of actual 
 investors. But these, to a great extent, are not 
 heavy capitalists, the millionaires. I now read 
 from a Lite report of the bank commissioners of 
 1851 : The total number of shares then, was 
 411,700; and of shareholders, 25,781. Of these, 
 6,648 were women, who had 58,548 shares ; 
 2,623 were trustees, who had 46,035 shares ; and 
 333 were guardians, and savings institutions, 
 
 holding 27,837 shares. The commissioners, on 
 this, remark : " The stock is widely scattered into 
 almost every village in the State ; and but a 
 small comparative amount is held by capitalists, 
 or by persons engaged in heavy mercantile opera 
 tions, in the large towns and cities." But take 
 the case of an individual bank. The directors 
 of the State Bank, in a memorial, in 1836, state 
 that of 30.000 shares, 13,139 were owned in Bos 
 ton, and 16,861 in the country. The Savings 
 Bank was the largest stockholder. Out of 808 
 small shareholders, 354 were females. There 
 were holden by various societies, colleges, schools, 
 executors, children, and trustees, 8,229 shares, 
 amounting to $493,540. 
 
 These are the persons who are largely stock 
 holders in the banks. These are the persons 
 who pay the bank tax a tax founded, in my 
 judgment, upon a wrong principle, by which 
 the capitalists get clear of their just amount of 
 taxation, while those who have less means, are 
 made to pay the greater proportion in a word, a 
 tax upon the industry, the commerce, the best 
 interests of the Commonwealth. These may 
 not be palatable truths, but they are nevertheless 
 truths ; and when the community come to un 
 derstand them, it is hoped there will be a sounder 
 system of taxation adopted. 
 
 But to return : Now I ask what system will be, 
 I do not say, be immediately the most profitable, 
 but the soundest, the healthiest, and will furnish 
 to the stockholders of the banks the greatest se 
 curity ; and in the long run, after all, be the most 
 profitable to them and the public. Is it that sys 
 tem which places in the hands of " Itichard lloe 
 and John Doe," without security, the privilege 
 to furnish the currency for the people of the Com 
 monwealth, which to-day may be good and to 
 morrow may be worthless ? Or is it that system 
 which requires a pledge of fixed value to be placed 
 in the hands of the authorities of the State for the 
 redemption of every dollar of paper money 
 issued ? 
 
 The adoption of this security principle as to 
 paper issues, would produce a great reform with 
 regard to the mode of issue of a currency. Take 
 the existing mode of these issues, independent of 
 security. The State have delegated to the banks 
 the power of supplying the currency of the Com 
 monwealth, and the banks exercise that power at 
 discretion. Now take the revelations of 1836, 
 in relation to this one point of making paper 
 issues, and if anything in the mercantile history 
 of Massachusetts can be found more disreputable 
 than the practices in relation to it, I should like 
 to see it. The facts are of record. Why, there 
 were instances where the president of a bank 
 
326 
 
 BANKING. 
 
 [65th day. 
 
 Saturday,] 
 
 FROTHINGHAM SCHOULEU. 
 
 [July 23d. 
 
 issued paper without keeping a record of the 
 amount he issued, and at the same time when the 
 cashier issued paper without keeping any record 
 of the amount he issued; so that neither the 
 president knew how much the cashier issued, nor 
 the cashier how much the president issued. Other 
 instances might be adduced where issues were 
 shamefully made. And yet, that paper circu 
 lated among the people, and was supposed by 
 them to be issued under the protection of efficient 
 law, and that the State watched it and guarded 
 it ! That was the credit which was constituted 
 money by penal laws ! Now this was one of the 
 very first evils which the bank commissioners 
 endeavored to remedy. Look through their re 
 ports and see if what has been stated is not true 
 to the letter. 
 
 This looseness of paper issue was one of the 
 first things they commented upon. What do 
 they say in 1840 ? These commissioners, by the 
 way, have been independent and honest- minded 
 men, looking out for the benefit and protection 
 of the Commonwealth. These are their words : 
 
 " Two things ought, at least, to be considered 
 indispensable. The evidence of the amount of 
 issues and destructions should never rest upon 
 records made and signed by the cashier alone ; 
 and the president of the bank should always have 
 in his own possession, the means of knowing the 
 exact amount of bills of the bank in existence. 
 These precautions are equally important to the 
 bank and the cashier." 
 
 Did the legislature then make any law, or 
 have they made any to this day, in relation to the 
 mere form of issue ? No. It is a fact that able 
 and competent men have been made bank com 
 missioners ; they have been paid thousands of 
 dollars to go into the banks and reveal all the 
 violations of law which occur, and they have made 
 their reports. And committees of the legislature, 
 acting upon the information furnished in this 
 way, have brought in salutary bills, but those 
 bills have been driven out by bankdom enthroned 
 in the halls of legislation. I see before me the 
 chairman of one of the banking committees who 
 introduced an act, considered by an able com 
 mittee to be necessary to protect the public in 
 relation to banks, and based on a commissioners 
 report, and I saw that bill, so assailed by the 
 plausible sophistry of bankdom that it was voted 
 down. Now in reference to this very point of 
 loose issue, what do the banking commissioners 
 in 1851 say ? These are their words : 
 
 " In many banks, no record is kept by any 
 officer except the cashier, of the bills issued, so 
 that if any fraudulent entries are made in the 
 books of the bank in relation to such issues, 
 
 there is no effectual check to prevent the most 
 injurious consequences, which might be avoided, 
 if the president had, under his personal control, 
 a register of bills signed and delivered by him, 
 and of the balance outstanding." 
 
 So the same evil existed in 1851 that existed in 
 1836 ! But not a motion has been made, not a 
 step has been taken, to remedy the evil. Now 
 this same looseness, and this same insecurity, have 
 been seen in other places. What has been done 
 in several States of this Union in view of this 
 matter? They have provided that bills which 
 are issued and protected by the State as money, 
 should be obtained from Jhe State auditor, from 
 the State authorities, whether they furnish secu 
 rity or not. The great State of New York a few 
 years ago, passed a law calling in every dollar of 
 money issued by the banks, and requiring it to 
 be replaced by bills registered by the auditor of 
 accounts. In relation to this whole difficulty and 
 danger of bank issues, many of the new States 
 have adopted into their Constitutions provisions 
 protecting the people against fraudulent banking. 
 New York, Ohio, Louisiana, Illinois, Indiana, 
 California, and other States, have found it neces 
 sary to protect the people from banking issues 
 by putting a provision of this kind into their 
 Constitutions. [Here the hammer fell.] 
 
 Mr. SCIIOULER, of Boston. I have listened 
 with great attention to the remarks made by the 
 gentleman from Charlestown, (Mr. Frothingham,) 
 but I do not intend to make an argument by way 
 of reply, or discuss the question at all. I rise 
 merely to ask whether the resolve passed the 
 other day, and which was reported by the gentle 
 man from Con way, (Mr. Whitney,) which for 
 bids the legislature from incorporating any special 
 corporations for all time to come, does not cover 
 the whole ground presented by the resolution of 
 the gentleman from Charlestown. It seems to 
 me, that the order we have been discussing to 
 day is altogether unnecessary, because it covers 
 the same ground with that adopted the other day. 
 I would ask the gentleman if the present resolu 
 tion does not cover the same ground precisely 
 with that passed the other day, prohibiting the 
 legislature from passing any acts establishing 
 private incorporations. 
 
 Mr. FROTHINGHAM. Perhaps the gentle 
 man was not present, but I think I alluded to 
 that matter in the outset of my remarks, when I 
 said that in my judgment the action already had 
 by the Convention did not touch the very thing, 
 the vital principle, the core of the whole matter 
 the principle of security. 
 
 Mr. SCHOULER. I supposed it was vital 
 and right to the core of the thing, to prohibit the 
 
65th day.] 
 
 BANKING. 
 
 327 
 
 Saturday,] 
 
 SCHOULEK HOOPER. 
 
 [July 23d. 
 
 legislature from making any new banks ; and I 
 think the resolution adopted the other day, will 
 have that effect. Two years ago we rechartered 
 all the banks then in existence in Massachusetts, 
 and I believe the gentleman from Charlestown 
 voted for those banks. The same year we passed 
 a general banking law, similar in principle to 
 that which the gentleman has so ably advocated 
 to-day. It was considered a sort of compromise 
 with the bank people; but it is rather singu 
 lar, nevertheless, that the very legislature which 
 passed this general banking law, also rechartered 
 every bank which was in existence in Massachu 
 setts, for twenty years ; and the charter of every 
 bank now in existence runs on until the year 
 1870. As it is, you must remember that we may 
 have one or two Conventions to revise the Con 
 stitution before that time arrives ; and I would 
 advise gentlemen to keep this matter out of the 
 Constitution. Let us go on as we have done, 
 and not incorporate a provision into the Consti 
 tution which will deprive the legislature of char 
 tering any more new banks, thus giving the 
 banks now in existence, a perfect monopoly of 
 the whole business until 1870. The banks that 
 are rechartered, are subject to all the duties, lia 
 bilities, requirements, and restrictions, contained 
 in such acts as are now in force, and such other 
 acts as may hereafter be passed by the general 
 court in. relation to banks. I, however, do not 
 intend to oppose this resolution, because if I 
 oppose it, it will be very sure to go ; neither will 
 I give it my support, because then it might be 
 lost. I have always considered, that, under this 
 general banking law, the whole issue of a bank 
 is founded upon credit, just the same as in banks 
 specially incorporated, only that it is a different 
 kind of credit. Under the general law, what are 
 called state and city stocks are used, but they are 
 merely the representatives of wealth, and are 
 merely notes payable at the expiration of a cer 
 tain time ; so it is with the paper which banks 
 discount. I have no doubt that the notes of cer 
 tain merchants in this city for $2,000, are just 
 as good as the scrip or paper of a State. But I 
 did not intend to make a speech, and must close 
 my remarks. I merely rose to suggest that the 
 resolution which we passed the other day, cov 
 ered the whole ground ; and if so, I do not see 
 any necessity for incorporating into the Constitu 
 tion another provision of a similar character, 
 unless gentlemen desire to make the matter 
 doubly sure, that the banks now in existence 
 shall have a monopoly of the business until 1870. 
 Mr. HOOPER, of Fall River. The second 
 resolution, the gentleman from Boston, (Mr. 
 Schouler,) will find, embraces a subject which 
 
 the resolution passed the other day does not 
 touch. The first resolution covers the same 
 ground, perhaps. I wish to offer the following 
 amendment in the shape of a proviso to the sec 
 ond resolution the most important one now 
 under consideration : 
 
 Provided, that no note or bill of less denomi 
 nation than $10, may be issued as currency after 
 the year 18GO. 
 
 While I most fully concur in the remarks of 
 the gentleman from Charlestown, (Mr. Frothing- 
 ham,) it appears to me that the resolutions do 
 not go far enough, that they do not remedy the 
 evils which he has pointed out so forcibly, the 
 evils arising from a paper currency. 
 
 I would also suggest to him, that the amount 
 of stocks of a character that may be pledged for 
 the redemption of bills, will not, in all probability, 
 be more than sufficient to serve as a basis of a 
 sufficient issue of bills of the denomination of 
 ten dollars and upwards, to answer the demands 
 of mercantile transactions. The suppression of 
 bills of a lower denomination, and a substitu 
 tion of specie to be used in the minor transactions 
 of business, would go far towards producing 
 steadiness, and remedying those evils. If the 
 banks are to go on as they now do, I think we 
 shall have all the evils over again that have ever 
 attended the issues of a redundant paper cur 
 rency. 
 
 It strikes me, that our friends of late years 
 have lost sight of what was a few years ago a 
 leading principle with the reform party of the 
 United States, and that was, to infuse into the 
 circulation a larger amount of metallic currency. 
 
 We have seen the paper currency constantly 
 increasing, and we have seen the effects of it. 
 We have seen a constant increase in the price of 
 the necessaries of life when the currency has 
 expanded, and a corresponding diminution of ^,_ 
 price when it has diminished, and thus labor has 
 been robbed of its earnings. I say that it has 
 operated constantly to rob labor, and enhance 
 wealth, for labor is always the last to rise, and 
 the first to fall. 
 
 In 1830, I think that there were only about 
 sixty millions of dollars ($61,323,898) of paper in 
 circulation. The necessaries of life and the 
 means of living were then cheap. From that 
 period up to 1836, the circulation increased, until 
 it went up to one hundred and fifty millions, in 
 round numbers. What was the effect of this 
 great increase ? It was just so much tax upon 
 the labor of the country, collected for the benefit 
 of capital. 
 
 If you turn to the statistics of the country, 
 
328 
 
 BANKING. 
 
 [65th day. 
 
 Saturday,] 
 
 HOOPER. 
 
 [July 23d. 
 
 and look at the amount of imports, you will find 
 that they increased almost in the precise ratio of 
 the increase of paper money. The whole amount 
 of imports in 1830 was $70,876,920. Of cotton 
 fabrics, $7,862,326; while in 1836 the total of 
 imports was $189,980,035, and of cottons, 
 $17,876,087. If you again follow up the sta 
 tistics you will see the decrease from 1836 
 to 1840 in about the same proportion, when the 
 paper circulation came down to about one hundred 
 and six millions ($108,968,572,) and the imports 
 to $104,805,891, and cottons to $6,599,330. 
 The importations of the most highly protected 
 articles, such as cottons and woollens, diminished 
 under the decreasing tariff, which was then de 
 cried as being ruinous to the manufacturing 
 interests. 
 
 It is thus seen that the total importations de 
 creased in the same ratio in which the paper 
 money decreased, till in 1840 they were, notwith 
 standing a decreasing tariff, but little more than 
 half what they were in 1836, when the tariff was 
 the highest. The whole amount of imports of 
 the country in 1840, as we have seen, were a 
 little over one hundred and four millions of dol 
 lars, and the paper circulation was only about one 
 hundred and six millions of dollars ; while in 
 1836, with a paper circulation of one hundred 
 and fifty million dollars, the imports had run up 
 to the enormous amount of one hundred and 
 ninety millions of dollars. 
 
 This shows that the importations decreased 
 under a decreasing tariff, and decreased simply 
 because the paper circulation decreased. 
 
 What was its effect upon labor ? To my 
 knowledge, laborers in 1836, when they were 
 receiving the highest wages which they had ever 
 been accustomed to receive, were not able to live 
 near as well as in 1840, when the amount which 
 they received for their labor was nominally far 
 less. The amount which they received in 1840 
 for each day s labor, purchased more of the neces 
 saries and comforts of life than in 1836, although 
 the amount nominally was then much less. 
 
 What is the state of facts now r The paper 
 circulation has been on the increase again ever 
 since 1843, and I suppose at this time, that it is 
 fully equal, here in Massachusetts at least, to 
 what it was in 1836 ; and you find that the price 
 of everything has risen, and is rising in a con 
 stant ratio with this expanding currency ; but you 
 do not find that the laboring man can live any 
 better upon the proceeds of his labor now than 
 he could in 1841, 1842, 1843, and I question 
 whether he can live as well as he could then. 
 
 Now, it seems to me there should be some 
 thing to regulate this matter ; something to pre 
 
 vent these enormous fluctuations of this circulating 
 paper meditim, so that it shall not expand, as it 
 did from 1830 to 1836, from $61,000,000 to 
 $150,000,000, and then contract down to $106,- 
 000,000 in 1840, the prices in the same period 
 fluctuating in the same ratio. I know of but one 
 mode of reaching this difficulty, and that is, to in 
 fuse into the circulating medium of the country a 
 larger proportion of specie. When this subject 
 was agitated, at the time we were laboring under 
 these great evils, and the independent treasury 
 was put into operation., as a partial remedy, it was 
 urged by our opponents that there was not specie 
 enough in the world to supply a currency, and 
 that for this reason, it was necessary to have a 
 paper medium. They argued that there was not 
 a sufficient supply of specie to meet the demands 
 of a currency, without a most ruinous depression 
 of prices. Supposing that argument to have been 
 good then, which it was not, is it good now ? 
 What is the fact ? We find that now, we are in 
 the receipt of something like fifty millions of 
 dollars annually, of gold, which is the product 
 of our own territor} r . There never can be a 
 more favorable time, or a better opportunity 
 of beginning to infuse into the circulation of 
 the country a larger proportion of specie. But 
 for this large production of gold, which simply 
 passes through the country in its transit to the 
 other side of the Atlantic, I do not believe that 
 even now the banks would continue to pay specie 
 for three months. If that supply of gold were to 
 be cut off, you would find there would be a 
 collapse as great and severe as that of 1837. 
 There is every indication of it. Look at the re 
 turns as to the amount of specie in the banks, 
 compared with the amount of paper in circula 
 tion. Is not the difference as great as it was in 
 1836 ? I have not been able to examine the sta 
 tistics on this point since the subject came up ; 
 but my impression is that the disproportion is 
 quite as large now as it was then. The same 
 causes exist now that existed then, over impor 
 tation produced by high prices, caused by an in 
 flated currency ; and, but for the influx of the 
 precious metals which are being sent across the 
 Atlantic to pay balances, you would immediately 
 have a pressure in the money market, and a col 
 lapse. 
 
 Now, it seems to me this is the proper 
 time to start a reform in this respect, and one 
 which is more demanded for the interest of labor 
 than any other. The value of specie, it is true, 
 will fluctuate and affect prices somewhat, at differ 
 ent times, and in different places ; bnt, like the 
 waters of the ocean, it will always find its true 
 level by the laws of trade; while the paper cur- 
 
65th day.] 
 
 BANKING. 
 
 329 
 
 Saturday," 
 
 HOOPER 
 
 [July 23d. 
 
 rency is like the atmosphere above it, subject 
 to whirlwinds and tornadoes continually, and 
 scattering ruin and desolation in its track. If we 
 wish to have business steady, and prices stable, 
 let us make our currency, for the most part, of 
 value only, which shall fluctuate only as the laws 
 of trade fluctuate, according to the principle of de 
 mand and supply. Now is the time to check this 
 evil, and retain a part of the gold which is flowing 
 through the country, and make it a part of the 
 currency which is to circulate from hand to hand. 
 Sir, in England it was found that the circula 
 tion of a paper currency was inconsistent with 
 the best interests of society, producing fluctuations 
 too ruinous to be endured, and they have reformed 
 it, so that at this day no laboring men are ever 
 paid for their services in paper money. They are 
 uniformly paid in specie. I have seen many of 
 those who have been mechanics and laborers in 
 the manufacturing establishments of England, 
 who tell me that they never knew an employer to 
 pay his laborers in paper money. The paper is 
 for the trading and mercantile community, and to 
 such it is a convenience that may well be granted 
 to them. But these extreme fluctuations to which 
 we have been heretofore subjected, have been so 
 ruinous in their effects, that we should be warned 
 for the future. That which has been, will be 
 again, under like circumstances. The great pro 
 portion of paper, compared with specie, produced 
 the enormous fluctuations, and the suspension of 
 specie payments by the banks of but a few years 
 ago evils, to the recurrence of which we shall 
 be continually exposed so long as the present sys 
 tem shall continue to exist. I hope we may 
 adopt his amendment, in order to prepare the 
 way for the change, which I think should be 
 somewhat progressive, so that the community 
 may not be shocked by it, or experience any in 
 convenience from it. Above all, it is proper that 
 we should commence this reform in Massachu 
 setts, for if we commence it here, we have every 
 reason to expect that other States will follow our 
 example. Massachusetts is doing more at this 
 time than any other State in the Union, to flood 
 the country with paper money. At this very 
 time her banks are scattering their bills all 
 through the West, and particularly those of a 
 small denomination, so as to render nugatory the 
 laws of several of the States against the issuing 
 of small bills, and thereby driving specie out of 
 circulation, and out of the country. Adopt this 
 amendment, and you will remedy these evils. 
 The day is put so far ahead that measures will be 
 adopted to prepare for the change in season to 
 prevent any injury to the public. 
 
 Mr. FRENCH, of Berkley. I am in favor of 
 22 3 
 
 the amendment proposed by the delegate from 
 Fall Iviver. "We want something to protect the 
 people. Notwithstanding all the gold and silver 
 that we are now in possession of, we are not 
 worthy to have any other currency than a parcel 
 of shin-plasters. As I observed the other day, 
 you may go out into the city or country, and 
 they will ail tell you that they are embarrassed 
 and troubled exceedingly about making change 
 in their daily business. That is right, just as it 
 should be, so long as the people are content to sit 
 still and let the banks control everything. So 
 long as they are satisfied that the banks shall 
 keep them from using any other currency but 
 paper, that is just what the people deserve, exactly, 
 and they ought not to complain. 
 
 Sir, let us look a little at the facts about this 
 paper currency which we are compelled to take. 
 If I recollect right, in 18-42 we had the highest 
 tariff, perhaps, that we ever had in this country, 
 and under that tariff more goods were imported 
 into the country than at any other period. And 
 why was it so ? Because the expansion of the 
 currency had raised the prices fictitiously, and 
 foreigners were able to come into our country 
 and sell their goods aiid pay the duties, and still 
 make a fair profit. And that was by the opera 
 tion of the currency. Why is it that trade is 
 rendered a lottery ; that it is not the most pre 
 scient man, the man who foresees or looks far- 
 therest, who is to be the most successfxil trader ? 
 But the most reckless, the most ignorant of 
 trade, the least qualified to trade, are just as 
 likely to succeed as the men who have the most 
 prescience and the best calculation. Why ? 
 Because they are dependent on the fluctuations 
 of the currency for their success. One man 
 purchases his goods on an expansion of the cur 
 rency, comes home and goes to trading. An 
 other man on the opposite side of the way, goes 
 and purchases his goods on a contraction of the 
 currency. And what is the consequence ? He 
 purchases his goods twenty per cent, cheaper 
 than the other one did, and only because of the 
 different states of the currency when the goods 
 were purchased. Now, is this the best currency 
 we can have in our country r 
 
 Another objection to this kind of currency is, 
 that it is not a measure of value, and cannot be 
 made so. And I sometimes think that a man 
 never paid his debts with paper money, in his 
 life. It is not a measure of value. A man may 
 pay another man who holds a note against him a 
 hundred dollars. The man is willing to receive 
 it and all is fair ; but when the man has got his 
 hundred dollars he has not got his pay. Why ? 
 Because it may be worth a hundred dollars, or 
 
330 
 
 BANKING. 
 
 [65th. day. 
 
 Saturday,] 
 
 WALKER. 
 
 [July 23d. 
 
 it may be worth seventy-five dollars, or it may 
 not be worth anything at all. All the transaction 
 between the parties is just the exchanging of the 
 evidence of one debt for the evidence of another. 
 I hope that we shall begin to do something in 
 order that we may get a better currency, for in 
 a mixed currency it always happens that that 
 which is of the least value will displace the more 
 valuable and drive it out. I hope that the amend 
 ment of the gentleman from Fall River will be 
 adopted. 
 
 Mr. WALKER, of North Brookfield. Mr. 
 President : The proposition before us, according 
 to the resolve reported by the Committee is, " that 
 the legislature shall have no power to pass any act 
 granting any special charter for banking purposes, 
 or any special act to increase the capital stock of 
 any charter bank ; but corporations may be formed 
 for such purposes, or the capital stock of charter 
 banks may be increased, under general laws." 
 
 " That the legislature shall provide by law for 
 the registry of all notes or bills authorized by gen 
 eral laws to be issued, or to be put in circulation 
 as money ; and shall require ample security for 
 the redemption of such notes in specie." 
 
 I suppose the important principle contained in 
 these resolves is included in the last clause, which 
 " requires ample security for the redemption of 
 such notes in specie." 
 
 That is the great idea which, I suppose, the 
 gentleman from Charlestown, (Mr. Frothingham,) 
 has in view, in bringing forward, as the chairman 
 of the Committee, these resolves. Now, Sir, I am 
 satisfied that the measure is a very important 
 one ; that we should have a general banking law, 
 and that all the notes issued by banks created by 
 that law, should be secured to the public ; because 
 Massachusetts has suffered, and especially the 
 poorer class of people, upon whom the loss of 
 broken bank bills principally falls. 
 
 The industrious classes are not judges of bank 
 notes or bills, and do not know what banks stand 
 the best. But business men do know. I have 
 been a business man, and I know that the bills 
 of suspected banks are always deposited before the 
 banks close. I know that suspicions arise respect 
 ing certain banks in times of pressure, and certain 
 bills are always got rid of by the knowing ones 
 as soon as possible. They are kept in the hands 
 of laboring men mostly, and, consequently, the 
 losses by the failure of a bank commonly fall on 
 that class of people to a great extent. Massachu 
 setts has lost many millions in this way ; and yet, 
 we have the best managed banks, on this system, 
 in the whole country. 
 
 It seems to me that we should settle the matter 
 now, so that the people shall be, hereafter, secure 
 
 against the losses so far as any new banks are 
 created. What will be the effect of the proposed 
 measure ? Simply this : that banks will be es 
 tablished, hereafter, by those who have money to 
 lend. Now they are generally got up by those 
 who want to borrow money. I hold it to be very 
 desirable, that those who have money should es 
 tablish the banks, and not those who have not. 
 
 I say that losses have occurred because banks 
 have failed from time to time ; and what has 
 happened may happen again. 
 
 At present, all is fair weather, and these are 
 halcyon days of banking. Never were larger 
 dividends made than during the last year, amount 
 ing, on an average, through the State, to almost 
 eight per cent., as is shown by the last bank re 
 turns. These dividends are made by the large 
 circulation, and by exchanges charged upon bills 
 discounted, and the advantage of large deposits. 
 
 By examining these statistics, we find that the 
 whole circulation of the banks in this State, in 
 September last, was over twenty- one millions ; 
 amount of specie, a little over three and a half 
 millions equal to within a fraction of six dol 
 lars in bills, to one of specie. The whole amount 
 of circulation and deposits, was over thirty-six 
 millions, and this amount forms the " immediate 
 liabilities" of the banks, which they may be 
 called upon to pay, at any moment, and to meet 
 which, they have but three and a half millions of 
 specie. And this shows plainly, that the banks 
 owe, on demand, over ten dollars for every one 
 dollar they have in gold and silver. This is the 
 true position of affairs. It may be contradicted, 
 but it can never be disproved ; and all the talk 
 we hear about " specie funds," does not alter the 
 matter at all, so far as this question is concerned. 
 
 Now, it must be evident to every one that this 
 is a critical state of things. It cannot be other 
 wise. Any individual who owed thirty-six thou 
 sand dollars, all on demand, and had only thirty- 
 six hundred dollars to pay it with, we should 
 say, stood in rather a precarious situation ; and 
 yet that is just the position of the banks. 
 
 But if we farther look at the several banks, 
 the case is still more striking. Take the last ab 
 stract, and you will see how the individual banks 
 stand with regard to specie. As I happen to have 
 my eye on some of the figures relating to the 
 country banks, I begin with one that has twenty- 
 five dollars in circulation to one of specie ; the 
 next has sixteen to one ; another has forty- four to 
 one ; another twenty- eight to one ; and one, I 
 find, has sixty- four dollars in bills, to every one in 
 specie ; and including the deposits, this particular 
 bank has over ninety dollars of immediate liabil 
 ity, to every dollar of specie. And the country 
 
65th day.] 
 
 BANKING. 
 
 331 
 
 Saturday,] 
 
 WALKER. 
 
 [July 23d. 
 
 banks, on an average, have over twenty-two dol 
 lars of immediate liabilities, to one of specie. 
 
 I know it is said very ingeniously, that these 
 country banks have funds deposited in the banks 
 in Boston. Allow it to be so ; but what is the 
 condition of these Boston banks ? How much 
 specie can they help the country banks to, in case 
 of need ? Let us see. I find that the Boston 
 banks have in circulation two dollars and ninety- 
 eights cents to one dollar in specie, almost three 
 dollars in bills, to one of specie, besides all 
 their obligations on account of deposits. It seems 
 to me they are not in a very good condition to 
 help their country cousins. If a pressure comes, 
 it will be about as much as they can do to take 
 care of themselves. Some of my friends here are 
 presidents of Boston banks, and know whether I 
 state the truth in this matter or not. 
 
 I think, from these statistics, we can distinctly 
 see the basis these banks rest upon ; and now the 
 question occurs, what makes them at all secure ? 
 Their only present security is, that there is no 
 great demand for specie to ship abroad. We re 
 ceive from California just about the same amount 
 that is required for foreign shipment, at the pres 
 ent time. By the way, the particular amount of 
 specie thus received does not affect us any more 
 than so much additional amount of cotton or any 
 other export would ; for if we had an equal ad 
 ditional amount of cotton to send to England, it 
 would be the same thing to us as sending specie. 
 It merely pays our indebtedness there, and the 
 principal effect upon our currency, of the influx 
 of gold from California, is simply this it inspires 
 general confidence. 
 
 This being the case, what must inevitably hap 
 pen ? Just what has happened hitherto. When 
 the balance of trade does come against us in 
 Europe, we must export our specie from the 
 banks ; and when that time comes, how much 
 can we spare ? Three millions and a half is all 
 that we have in Massachusetts. Suppose that 
 there is a balance against this country of thirty or 
 forty millions ; that may be the case, and that 
 will be the case sooner or later, after all the cot 
 ton and other produce we send abroad. Every 
 man knows, who is any financier at all, that this 
 time is coming, and that there will then, of ne 
 cessity, be a demand for specie to ship to Eng 
 land ; and then what will happen ? Sir, in an 
 instant, in the twinkling of an eye, the bank 
 discounts will be closed they will shut right 
 down they cannot help doing so. I have seen 
 the time that when I went to the bank in Boston 
 in the morning to do business, all was easy and 
 fair in the money market ; but before two o clock 
 there was no discount to be had. What was the 
 
 reason of it ? Why, Sir, information had been 
 received from New York that there was a great 
 demand for specie abroad, and, of course, the New 
 York banks sent right on to Boston for specie, so 
 far as they had claims in the Boston banks. If 
 the Boston banks had out three dollars in paper 
 for one in specie, as they now have, they would 
 feel at once that they must stop all discounts, and 
 bring in all their resources, in order to sustain 
 themselves. What follows then ? Money begins 
 to be very scarce, and men who have notes to pay 
 are turned into the street to hire money at any 
 price at which they can get it perhaps eight, 
 twelve, twenty, or even as much as thirty per 
 cent, interest in order to maintain their business 
 reputation and meet their engagements. When 
 money is plenty, these men are tempted to borrow 
 of the banks, and very largely ; and when the 
 time of pressure comes, the banks cannot help 
 them, for they are themselves the most feeble 
 members of the community. 
 
 Now, I do not blame the bank directors in this 
 matter ; they are obliged to take the course they 
 do in self-defence. It is incidental to the sys 
 tem they cannot help it ; but any man can see 
 that it must be a terrible system which produces 
 such results ; which allures men to make promises 
 to pay certain amounts at certain times, and when 
 these obligations become due it cannot relieve 
 them. The great plentifulness of money enables 
 speculators to create an artificial rise in property, 
 and induces people to increase their business 
 operations and expenses ; but when reckoning 
 day comes, they are left high and dry. Every 
 body who understands the matter, knows that 
 this is the legitimate result of our present system ; 
 and is it not a most pernicious one ? The system 
 is so complicated that but few persons understand 
 it, yet it may be resolved into one or two general 
 principles. The leading idea is that our banks 
 have the power to issue their promissory notes as 
 money. Now, if those notes did not exceed the 
 amount of specie held by them, they would be the 
 representatives of real money, or in more scientific 
 language, of value money ; because gold and silver 
 possess intrinsic or absolute value, like wheat or 
 cotton, and for the same reason, namely, that they 
 cost labor and are objects of desire, and those two 
 conditions combined always and only give value 
 to any commodity. But the banks do not limit 
 themselves to the issue of an amount correspond 
 ing to their specie. They go beyond that limit 
 as far as they dare, and issue their promises, and 
 these constitute credit money. That is the proper 
 term for such money ; so, then, our currency is 
 in fact a mixed one, consisting of value money 
 and credit money. Now, when a pressure comes, 
 
332 
 
 BANKING. 
 
 [65th day. 
 
 Saturday,] 
 
 WALKER. 
 
 [July 23d. 
 
 when specie is wanted for export, what must hap 
 pen ? Why, if all the banks of Massachusetts 
 owe, as they now do, ten dollars for every one 
 dollar they have in specie, they must contract 
 their circulation in proportion. That is, if the 
 Massachusetts banks are called on for one million, 
 they must contract the currency ten millions. 
 This is the great objection to such a currency 
 the contractions must be so great, so sudden, and 
 BO necessarily injurious to the community. 
 
 It is, then, the elasticity, or the power of expan 
 sion and contraction, which our currency possesses, 
 that makes it at once so unstable, insecure, and 
 pernicious in its character. As certain as there 
 is an expansion, there must be a contraction, and 
 the more plentiful money is at one time, the 
 greater will be its scarcity at another. Natural 
 fluctuations in the currency there must ever be, 
 and like the tides of the ocean, they are salutary ; 
 but under our system they receive an artificial 
 extent and intensity that causes the most terrible 
 revulsions and the most disastrous consequences. 
 
 Every bank director in this room and I sup 
 pose there may be two hundred of them, more or 
 less knows that such revulsions under our 
 present system, inevitably come. It has happened 
 hitherto that it has come about once in seven 
 years, which seems to be about a monetary cycle. 
 Of course, if we could foresee the exact time, so as 
 to provide against the evil consequences of these 
 revulsions, it would not be so bad ; but we can 
 never know the precise time when they will occur. 
 When they do come, however, as I said before, 
 the Boston banks will shut down ; then the pres 
 sure will begin to come upon the country banks, 
 and they will stop discounts, too, and when they 
 find themselves hard pushed, the most feeble ones 
 will come down to the Boston banks for assistance, 
 and say, " If you don t help us, we must fail." 
 And the Boston banks, if they are satisfied that 
 such banks are sound, will aid them, because they 
 will know that the failure of one bank injures 
 the circulation and the credit of all ; that they 
 have a common interest, and must hold each 
 other up as long as possible. But in spite of all 
 these efforts, if the pressure continues, one after 
 another the rotten banks fail. When there are 
 nearly one hundred and fifty banks, with such a 
 tremendous circulation as the document in my 
 hand shows, I ask, is it possible that some banks 
 will not fail when there comes a crisis ? It is not 
 possible that it should be otherwise. Some will 
 fail, and then the people will lose. Now, Sir, to 
 guard against this loss is the object of the pro 
 posed measure. I admit, Sir, the banks go on as 
 long as they can ; they do not make a general 
 suspension, if they can help it. They all stand 
 
 together like brothers, not because they love each 
 other so much, but because they have one com 
 mon destiny. But the event will come at last ; for 
 they will all have to stop payment if the crisis 
 reaches a certain point, as has been done at differ 
 ent times heretofore. But up to a certain point 
 they can stand ; and in order to save themselves 
 they will sacrifice the business community. The 
 banks can all stand safe and secure so long as they 
 can keep the business community before them to 
 meet the losses ; but if there comes a great pres 
 sure ; if there is a continued run upon them for 
 specie to ship abroad, as there was in 1836 and 
 1837, the banks cannot keep themselves going, 
 and so they will all stop. 
 
 This state of things will return at different in 
 tervals, just so long as you allow banks to issue 
 bills without reference to the amount of specie in 
 their vaults. As long as you do not limit them in 
 this respect, it is no sort of use to say that you 
 will not excuse them if they all suspend specie pay 
 ment together. Sir, you will excuse them ; you 
 must excuse them, for when they stop it is the 
 best thing they can do. They ought to stop under 
 such circumstances ; and the fault is to be charged 
 to the bad system under which they act. 
 
 All these evils are inseparately connected with 
 the system ; and I submit, Mr. Chairman, that 
 we have gone on with it as long as we ought to. 
 I do not expect that the whole system is to be 
 done away ; I do not expect any reform of that 
 kind at present, so I hope no one will be alarmed 
 on that score. I have made no such intimation. 
 The measure before us is simply one of precau 
 tion, for the benefit of the people, and it will hurt 
 no legitimate banking at all. It will not injure 
 any bank which is now in operation, that is cer 
 tain ; and it will merely prevent any future bank 
 being got up by persons who have not got money 
 to loan. 
 
 The time has not yet come when we are pre 
 pared for a thorotigh reform on this subject. 
 There is nothing in this world that the people love 
 so well as they do banks there is nothing that 
 they like the sight of so well as they do paper 
 money. And paper money, if it is only equal in 
 quantity to the value in money which it repre 
 sents, is a great convenience ; but whatever is 
 over and above the specie in the vaults, is credit 
 money, and all credit money is, in my opinion, a 
 curse. There is no necessity for it at all. We have 
 arrived at an important epoch in the history of the 
 currency. By the discovery of the California!! and 
 Australian mines, large qxiantities of the precious 
 metals have been added to the circulating medium 
 of the world ; and one would suppose that the effect 
 of this ought to be to drive paper money out of 
 
65th day.] 
 
 BANKING. 
 
 333 
 
 Saturday,] 
 
 WALKER. 
 
 [July 23d, 
 
 circulation ; but instead of that, what is the con 
 sequence ? The more gold that we receive from 
 California, so far as it remains in the banks, the 
 more paper money we have ; for the banks, on an 
 average, through the nation, issue about three 
 dollars of paper money for every dollar of Cali 
 fornia gold they get ; and some issue ten or twenty 
 dollars for one, or even forty or fifty, as the case 
 may be. Now, Sir, nothing can be more unwise 
 than such a course. The time never was when 
 there was not specie enough in the world to do 
 the business of the world. Before the discovery 
 of the California mines, there were ten thousand 
 millons of gold and silver in the world, only 
 three-fifths of which was in currency ; the rest 
 was in plate. This fact shows that there was 
 enough of these metals for the purposes of the 
 currency ; for if the people had wanted it in cur 
 rency, it would have been converted into currency. 
 In this country we have the worst paper system 
 in the world I mean the worst voluntary system. 
 Russia has a forced paper money system that may 
 be worse than ours ; that is owing to the despot 
 ism of the emperor, who has the whole regulation 
 of the matter, and who has forced it upon his peo 
 ple ; but, for a voluntary system, ours is the worst 
 in existence. The gentleman from Charlestown 
 alludes to the banks in Scotland, and he says that 
 those banks are safe. They are so, but the system 
 of Scotland is the next worst in the world to ours, 
 because it most nearly resembles ours in being the 
 most liable to expansion and contraction. That is 
 the great characteristic feature of both their system 
 and ours. The currency of New York, one year, 
 was twenty-four millions ; the next year it was 
 twelve millions ; the next year, eighteen ; the 
 next, nine. How can people go on and do busi 
 ness with a currency fluctuating in that way, by 
 the mere expansion and contraction of paper 
 money ? This expansion and contraction in the 
 currency insidiously robs the masses of the labor 
 ing people of no small share of all they can earn ; 
 and this, too, is what ruins so many of our business 
 men. Thousands and thousands of these men are 
 ruined in this way, without knowing the cause. 
 They think, and say, it is owing to " hard luck, 
 or bad times ;" but the true reason is to be found 
 in the fluctuation of the currency. A man buys 
 goods when the currency is flush ; and if it so 
 happens that he has to pay for them under a con 
 tracted currency, he is ruined, unless he is a rich 
 man, and can afford to sustain a heavy loss. 
 Hence, a great proportion of all our failures are 
 caxised simply by the expansions and contractions 
 in the currency. I insist, therefore, that this is a 
 great evil, and the greatest evil under which we 
 labor ; and the effects of it are seen from the fact 
 
 that we have more bankrupts, in proportion, in 
 this country, than there are in any other in the 
 world. We are a nation of bankrupts. I do not 
 mean by this that we are more dishonest than 
 other people, but that our currency system robs 
 the people more effectually, and ruins more of our 
 merchants, than the system of other countries. 
 Scotland is the country where there is the next 
 greatest number of bankrupts, because it is next 
 to us in the fluctuating character of its currency. 
 In England there are less still, because its currency 
 is more stable ; and in France fewer still, for the 
 same reason. 
 
 The gentleman from Fall River said, that a re 
 cent law of parliament, passed, I think, about 
 1845, has limited the issues of the bank in the 
 manner in which we ought to limit our banks, so 
 that there should be a certain proportion between 
 the specie and the bills. That was a measure of 
 vast importance. I think it was carried by Sir 
 Robert Peel, and it showed the wisdom of the 
 British government. The Bank of England would 
 have failed at a little time previous to this, if it 
 had not been for four millions of specie which it 
 borrowed from the Bank of France ; and the 
 British government, seeing that result, and seeing 
 to what great peril the whole currency and com 
 merce of England had been exposed, passed a law 
 establishing a certain proportion between the cir 
 culation of the bank and the amount of its specie. 
 That is just what we need here, and what we 
 shall get, I suppose, when we have passed through 
 three or four more revolutions, and the people get 
 their eyes open. I do not expect it now there 
 is not much chance for it here. The amendment 
 of my friend from Fall River, proposing that no 
 bills of less than $10 should be issued, is a good 
 amendment ; but he might as well expect to get 
 the most absurd proposition in the world carried 
 as that. If he should make a proposition that we 
 should all go home without any pay, he would 
 get about as many votes for it, I presume, as he 
 will get for his amendment. But, notwithstand 
 ing that, it is a sound proposition, and one that 
 ought to be adopted, and I shall vote for it. It 
 would not do much good to have a single State 
 adopt it ; but if other States would do the same, 
 an important object would be attained. It ought 
 to be a great national movement, and then all 
 these little miserable bank notes might be driven 
 out of circulation. I hold that paper money 
 should never be used by men in paying off their 
 laborers. The gentleman from Fall River has 
 said that paper money is never so used in Eng 
 land, and that is true. You may travel all over 
 that country, and spend months there, without 
 seeing a bank note, as I know by experience. 
 
334 
 
 BANKING. 
 
 [65th day. 
 
 Saturday,] 
 
 WALKER STETSON. 
 
 [July 23d. 
 
 Now there is, in fact, gold and silver enough 
 for all business purposes ; and I should be glad if 
 we could get rid of all these one, two, and three- 
 dollar bills. It seems to me that the wisest course 
 would be, when the people become satisfied of 
 this, to have it provided by the national govern 
 ment, in obedience to the demand of public sen 
 timent, that all bills, under five dollars, should be 
 excluded after the first year ; that all under ten 
 dollars should be excluded the next five years, 
 and all under twenty dollars the next five. I 
 think there is no need of any paper r; oney of a 
 smaller denomination than twenty dollars. 
 
 I am not disposed to detain the Convention 
 longer ; but as the measure has been brought for 
 ward, I wished to bear my testimony in favor of 
 it ; and I shall be happy to vote in favor of the 
 amendment of the gentleman from Fall River, 
 not that I believe it will be carried, for the time 
 has not yet come, but because I believe it to be 
 right. 
 
 Mr. STETSON, of Braintree. I do not pur 
 pose to detain the Convention for more than a 
 few moments ; and will, even now, give way to 
 any gentleman who is desirous of speaking to the 
 question, especially to any one who desires to 
 speak against the Report of the Committee ; be 
 cause, before I make the remarks I have to offer, 
 I should like to hear what objections, if any, can 
 be urged against it. As yet, none have been 
 urged. The arguments have been all on one side 
 that is, in favor of the adoption of the Report. 
 As I differ from my friend who has just spoken, 
 in regard to matters of finance, I wish to state my 
 views upon the subject, and to set forth what I 
 understand to be the position of the case. I am 
 not disposed to speak against corporations or char 
 ters, of any character. I maintain that corpora 
 tions may be beneficial ; that they have been 
 beneficial ; and that Massachusetts has built her 
 self up the manufacturing interests particularly 
 by corporations. My position is this : that our 
 laws should be so constructed and framed that any 
 body of persons may associate themselves together 
 in a corporate capacity. The principle of corpo 
 rations, whether composed of a large or small 
 number of persons, is one and the same thing in 
 itself. A corporation may consist of three or four 
 persons, or it may consist of only two. It may 
 consist of any number of persons incorporated 
 under a charter by the legislature, or of two or 
 three persons united together in a partnership. 
 They are both the same ; the only distinction be 
 ing, that there are some of these bodies corporate 
 who obtain their acts here, that are monopolies, 
 unless the public themselves have not at all times 
 the like privilege of associating themselves to 
 
 gether. I maintain, therefore, not that we should 
 restrict the incorporation of any number of per 
 sons, but that the matter should be left free in 
 regard to the incorporation of banks as to any 
 other incorporations ; and that, I take it, is the 
 question here whether we will leave persons as 
 free to incorporate themselves for banking pur 
 poses as we do in regard to any other business. 
 Now, if I understand this matter rightly, if only 
 a few of these corporations are permitted to exist 
 with special privileges, we say that they are mo 
 nopolies ; and they are, unquestionably so. A 
 chartered bank, as it exists by the terms of any 
 special act of the legislature, or by any provision 
 in the Constitution in regard thereto, is a monop 
 oly. Now, I suppose, the object of the Conven 
 tion is to do away with all systems of monopoly 
 by throwing the whole matter open, so that, in 
 regard to banking, as to other business, every 
 person may go into it who pleases. After passing 
 a law restraining corporations from injuring pri 
 vate persons, and adopting such regulations as 
 will save the public harmless from the issue of 
 bills, I think that the State has not only done all 
 that it can do, but all that it has a right to do in 
 this respect, under a free government. I contend 
 that banking should be just as free as any occu 
 pation in commercial life. It is a trade, if I may 
 so speak, in itself a science which very few un 
 derstand. The object of the Report, it seems to 
 me is, that the public may be secured against 
 what the legislature gives these corporations 
 authority to do, in issuing promissory notes ; that 
 they shall be secured upon a basis something 
 that can be relied upon in case of the failure of 
 a bank. This, I apprehend, is the question, and 
 if so, I confess that I can see no objection to such 
 a purpose. 
 
 I maintain that the present system of banking 
 is a growing evil, and that special legislation in 
 regard to this matter is an evil which will in itself 
 bring ruin upon the community that is, that the 
 system is so involved, being a monopoly, and in 
 no way restrained, so that the State can reach it 
 by any enactment of law. Now, after the State 
 has done all that it can do in regard to preserving 
 the rights of persons, I maintain that the business 
 of banking should be left like every other busi 
 ness in the circle of trade. I hold that this thing 
 will regulate itself. If it is overworked, it will 
 regulate itself, as all other commercial operations 
 do. For all these matters, there is a law that is 
 higher and stronger than any statute that can be 
 enacted to regulate the laws of trade. No law 
 that any legislature can enact, can regulate trade. 
 It regulates itself. 
 
 I do not, however, propose to go into this ques- 
 
65th day.] 
 
 BANKING. 
 
 335 
 
 Saturday," 
 
 STETSON. 
 
 [July 23d. 
 
 tion. I only maintain that paper currency, if so 
 restricted as to be made safe, is a useful currency ; 
 and the existence of it, I think, will be perpetu 
 ated by the use of it. If it is well restrained and 
 secured, I can see no evil in it. I am not an 
 enemy to paper currency, made and properly 
 regulated by law. It is a useful medium in itself, 
 and its conveniences are felt in every branch of 
 trade. Upon this question, therefore, I do not 
 wish to enter. I only wish to allude to one 
 objection which has been made to the Report, by 
 the gentleman from Boston (Mr. Schouler). I 
 did not hear the whole of his remarks ; but as I 
 came into the hall, I understood him to say that 
 the resolution which passed the other day, in 
 relation to acts of incorporation, covered the 
 whole matter. Now, I entirely dissent from that. 
 I do not think that it covers any part of the ques 
 tion, neither do I think the resolutions passed the 
 other day, have any binding effect at all in rela 
 tion to the subject of banking. I think they are 
 very similar to the provisions of an act which 
 was passed a few years since, being an act to 
 create corporations under general laws. I believe 
 that I opposed that act in the House of Repre 
 sentatives then; I maintained that it was, de facto, 
 a special act; that it would be of no binding 
 effect, and would not cure the evil, because it 
 did not cover the matter ; and my friend from 
 Boston was willing that it should remain on 
 the statute book, for the very reason that it had 
 no binding effect ; that it was merely a dead letter 
 upon the statute book, and, in regard to banking, 
 that it was precisely the same as a special act. A 
 free banking act was passed a few years since, 
 and the argument then was that it would not be 
 used. True, it has not been used, and for what 
 reason ? Because the State, in its sovereign ca 
 pacity, gives a monopoly to certain corporations 
 who have in themselves the power to make twice 
 the money that they could make if they had not 
 the advantage of their special charters. Now, 
 what association of men would incorporate 
 themselves under this free banking act, and sub 
 mit to be restricted, and give security for their 
 bills, when they could come here and obtain an 
 act whereby they could pledge their credit to any 
 amount they pleased, without any restriction r 
 That law will never be of any avail, till some 
 restriction is imposed by the legislature on these 
 special corporations ; and then all persons who 
 want to commence banking, can do so under a 
 general law, and all will be upon an equality. 
 
 My friend from Charlestown read an extract 
 this morning from a speech of the Hon. Edward 
 Everett. With your permission, I wish to read 
 an extract from a speech just previous to the 
 
 explosion of 1837, which was delivered in this 
 hall by the same able gentleman. 
 He says : 
 
 " The banks form a class of corporations dis 
 tinguished from all others, by a privilege of a 
 very extraordinary character. When a company 
 of citizens come before us, and ask to be incorpo 
 rated as a bank, they ask us not merely to allow 
 them to associate themselves together for the pur 
 pose of lending money, but they ask us the privi 
 lege of allowing them to associate themselves 
 together in addition, for the power to create money 
 out of nothing that is, out of blank paper, for 
 their own benefit ; equivalent to an outright gift 
 of a sum of money equal to the average amount 
 of circulation after deducting the average amount 
 of its specie on hand. * * * 
 
 " The easy indifference with which the legisla 
 ture has been accustomed to grant these immense 
 bounties, is somewhat singular, considering the 
 scrupulous reserve that is commonly and very 
 properly practised in regard to most other mea 
 sures involving grants of money. Heretofore, 
 when applications have been made for bank 
 charters, the acts have been passed without hesi 
 tation, and very often without debate. * * * 
 
 " Sir, I ask whether it can be said with pro 
 priety, that a business to which we give these 
 immense bounties, regulates itself ? As long as 
 the granting of a bank charter carries with it a 
 bonus of $50,000, or $150,000, according to the 
 extent of the circulation, there will never be a 
 failure of applications. If you wish the business 
 of lending money to regulate itself ; withdraw 
 from the banks the privilege of issuing notes. 
 There will then be no danger of excess, and you 
 may grant with safety all the charters that may be 
 applied for. But, while the present system is 
 pursued, it is perfectly evident that the banking 
 system never will regulate itself; and that unless 
 we mean to push it to an indefinite extent, we 
 must fix ourselves where it is proper to stop. 
 That we have already reached that point, and that 
 it is high time to stop where we are, and gradually 
 to retrace our steps, if we mean to avoid the danger 
 of the most disastrous convulsions. It may still 
 be inquired with propriety, whether we have a 
 right to bestow this immense boon upon a few of 
 the citizens in preference to all the rest. * * * 
 
 " The Constitution provides that no person shall 
 enjoy any exclusive privileges ; that all shall be 
 equal before the law. And is it not a privilege to 
 be able to create money for your own benefit, out 
 of blank paper ?" 
 
 That speech was made at a time when this 
 House granted a large number of charters. I 
 will not detain the Convention farther than to 
 read another extract, and then I shall have done. 
 About the year 1816, when the southern country 
 was under the suspension of specie payments, and 
 at the time when an application was before the 
 House of Representatives for a charter for a 
 United States Bank, John Randolph opposed that 
 application, and he took occasion then to make 
 
336 
 
 BANKING. 
 
 [65th day. 
 
 Saturday,! 
 
 STETSON FROTIIINGHAM LIVEHMOKE HOOPER. 
 
 [July 23d. 
 
 some remarks which have proved prophetic in 
 regard to the bank. lie says : 
 
 " It is unpleasant to put one s self in array 
 against a great leading interest in a community, 
 be they a lot of land speculators, paper jobbers, or 
 what not ; but, Sir, every man you meet, in this 
 House or out of it, with some rare exceptions, 
 which only serve to prove the rule, is either a 
 stockholder, president, cashier, clerk, or door 
 keeper, runner, engraver, paper maker, or me 
 chanic, in some way or other, to a bank. * * 
 However great the evil of their conduct may be, 
 who is to bell the cat ? who is to take the bull by 
 the horns ? You might as well attack Gibralter 
 with a pocket pistol, as to attempt to punish 
 them. * * * A man has their note for fifty 
 dollars, perhaps, in his pocket, for which he wants 
 fifty Spanish milled dollars ; but they have his 
 note for five thousand in their possession, and 
 laugh at his demand. We are tied hand and 
 foot, Sir, and are bound to conciliate this gi-eat 
 mammoth which is set up to be worshipped in 
 this Christian land. We are bound to propitiate 
 it. * * * * 
 
 "It is as much swindling to issue notes with 
 the intention not to pay, as it is burglary to break 
 open a house. If they are unable to pay, the 
 banks are bankrupt ; if able to pay, and will not, 
 they are fraudulent bankrupts. But a man might 
 as well go to Constantinople to preach Christianity, 
 at to get up here and preach against the banks." 
 
 I think that would apply very well to some of 
 the members of our House of Representatives 
 here. 
 
 "As to establishing this bank, to prevent a 
 variation in the rate of exchange of bank paper, 
 you might as well expect it to prevent the 
 variations of the wind ; you might as well pass 
 an act of congress, (for which, if it would be of 
 any good, I would certainly vote,) to prevent the 
 north-west wind from blowing in our teeth as we 
 go from the House to our lodgings." 
 
 This is the precise truth. The whole commu 
 nity is so interwoven in this matter, so interested 
 in it, and the whole State of Massachusetts is so 
 much incorporated into banks, that I think it is 
 high time that we should cut loose from the sys 
 tem of granting special charters, and throw the 
 whole matter open, and let every person be free 
 to bank himself, if he has capital enough, or can 
 obtain it by associating others with him. That is 
 my doctrine. 
 
 Mr. FROTIIINGHAM, of Charlestown. I 
 wish to say one word in relation to this amend 
 ment. I agree with what has been said by the 
 gentleman from Fall River, (Mr. Hooper,) as to 
 the principle of it ; but I would submit to him, 
 that that is a question which had better be left, 
 after all, with the legislature to settle. It seems 
 to come more appropriately under that rule, than 
 
 it does within the rule which guides us as to put 
 ting in matters into our organic law. 
 
 Another thing I remark, it seems to be at vari 
 ance with the principle upon which the Commit 
 tee have acted in relation to this matter. It pro 
 vides that on and after a certain time there shall 
 be no bank bills under a denomination of ten 
 dollars, and therein it interferes with the present 
 privileges of existing banks. The object of the 
 Committee was to leave this matter entirely to 
 the regulation of general laws, and not to put 
 anything into the Constitution in relation to it. 
 
 Mr. LIYERMORE, of Cambridge. I have 
 but a word to say in regard to this amendment. 
 The effect of this amendment, if adopted, will 
 be, that other States will derive all the benefit 
 from the circulation of small notes under the 
 denomination of ten dollars. In. the State of 
 Ohio, the law is that no bill under the denomi 
 nation of five dollars, shall be issued by any bank 
 of that State. What has been the effect ? Hun 
 dreds and thousands of dollars of money, in bills 
 of less denomination than that, have been sent 
 from this State within a few months past to pur 
 chase produce in that State. Now, Sir, I think 
 if we want to restrain the circulation of our banks, 
 and allow the banks of other States to come in 
 and supply us with our smaller circulating medi 
 um, we had better adopt the amendment offered 
 by the gentleman from Fall River. I had intend 
 ed to say a few words upon the whole question 
 before the Committee, but I do not think it worth 
 while now to take up the time of the Convention. 
 
 Mr. HOOPER, of Fall River. I should be 
 glad to accommodate gentlemen if I could, but, 
 Sir, the very consequences mentioned by the 
 gentleman last up, furnish the strongest argument 
 in favor of putting such a provision into the 
 Constitution. At this time no State in the Union 
 is circulating so many small bills in other States 
 as Massachusetts. It is a constant source of 
 complaint, and they say they cannot reform the 
 evil so long as Massachusetts is flooding them 
 with small bills. If we commence here, the 
 reform will go on throughout the country, but it 
 cannot so long as Massachusetts continues her 
 present course. I hope the amendment will be 
 adopted. 
 
 The question then recurring upon the amend 
 ment offered by the gentleman from Fall River, 
 (Mr. Hooper,) it was taken, and there were, upon 
 adivibion ayes, 27 ; noes, 85. 
 
 So the amendment was rejected. 
 
 The question then recurred upon the adoption 
 of the resolves as reported by the Committee, and 
 being put, it was decided in the affirmative ayes, 
 130 ; noes, 28. 
 
65th day.] 
 
 JUSTICES OF THE PEACE, &c. 
 
 337 
 
 Saturday,] 
 
 PARKER FAY GRISWOLD BRIGGS. 
 
 [July 23d. 
 
 So the resolves were passed. 
 
 Mr. DAVIS, of Worcester. I move that the 
 Committee rise and report the resolves to the 
 Convention with a recommendation that they do 
 pass. 
 
 The question was taken, and the motion was 
 agreed to. 
 
 The Committee accordingly rose, and 
 
 IN CONVENTION, 
 
 The chairman of the Committee, (Mr. Butler,) 
 reported that the Committee of the Whole had 
 had under consideration, according to order, the 
 Report of the Special Committee on the subject 
 of Banking, and had instructed him to report the 
 resolves to the Convention with a recommenda 
 tion that they do pass. 
 
 The Report was accepted by the Convention, 
 and the resolves were ordered to a second read 
 ing. 
 
 Mr. E ARLE, of Worcester. I move that when 
 the Convention adjourn, it adjourn to meet on 
 Monday next, at ten o clock. 
 
 The question was taken, and the motion was 
 agreed to. 
 
 Reconsideration. 
 
 Mr. BIRD, of Walpole. I move that the vote 
 by which the Convention carried to their final 
 passage the resolves in relation to elections by 
 plurality, be reconsidered. 
 
 The PRESIDENT. The motion will be en 
 tered upon the Orders of the Day for Monday 
 next. 
 
 Mr. BIRD. I now move that the motion to 
 reconsider be laid upon the table. 
 
 The question was taken, and the motion was 
 agreed to. 
 
 So the motion to reconsider was laid upon the 
 table. 
 
 Sectarian Schools. 
 
 Mr. PARKER, of Cambridge. It will be 
 recollected, Mr. President, that when the Report 
 of the Committee on Sectarian Schools was under 
 consideration, I read, for the information of the 
 Convention, an amendment which I proposed to 
 offer when the amendment then pending was 
 disposed of, so that mine might be in order. 
 That subject was subsequently laid upon the 
 table, and I desire to offer anew the resolution 
 which I then proposed, somewhat modified, so 
 that it may be laid upon the table and printed. 
 
 The resolution is as follows : 
 
 Resolved, That all moneys raised by taxation 
 in the towns and cities for the support of public 
 
 schools, and all moneys which may be appropri 
 ated by the State for the support of common 
 schools, shall be applied to and expended in no 
 other schools than those which are conducted 
 according to law, under the order and superin 
 tendence of the authorities of the town or city in 
 which the money is to be expended ; and such 
 moneys shall never be appropriated to any reli 
 gious sect for the maintenance, exclusively, of its 
 own schools. 
 
 The resolution was laid upon the table and 
 ordered to be printed. 
 
 Leave of Absence. 
 
 Mr. FAY, of Soutl>boro , from the Committee 
 on Leave of Absence, presented a Report, grant 
 ing leave of absence to Messrs. Bliss, of Hatfield, 
 Taylor, of Great Barrington, and Kellogg, of 
 West Stockbridge. 
 
 The Report was accepted and adopted. 
 
 Justices of the Peace. 
 
 Mr. GRISWOLD, for Erving. I move that 
 the Convention resolve itself into the Committee 
 of the Whole upon No. 57 of the calendar, in 
 relation to election of justices of the peace and 
 justices of inferior courts. 
 
 Mr. BRIGGS. I suggest to the gentleman 
 that the chairman of the Committee which re 
 ported the resolves, (Mr. Bishop,) is anxious to 
 be here when that subject is considered, but he is 
 not able to be here now. He feels a deep interest 
 in this matter, and I hope it will not be now taken 
 up. 
 
 Mr. GRISYV T OLD. I understand there is no 
 other business that can now be taken up, and I 
 suggest to gentlemen that amendments can be 
 offered at the second reading of the resolves. 
 
 The question was taken, and decided in the 
 affirmative ayes, 90 ; noes, 52. 
 
 The Convention accordingly resolved itself into 
 
 COMMITTEE OF THE WHOLE, 
 
 Mr. Morton, of Andover, in the chair, and took 
 up for consideration the following resolves : 
 
 1. Resolved, That it is expedient to amend the 
 Constitution, so as to provide that the electors of 
 the several towns shall elect, in such manner as 
 the legislature may direct, justices of the peace, 
 whose term of office shall be three years, and 
 whose jurisdiction shall extend throughout the 
 county in which they may be elected ; their 
 number and classification shall be regulated by 
 law ; they may be removed, after due notice, and 
 an opportunity of being heard in their defence, 
 by such court as may be prescribed by law, for 
 causes to be assigned in the order of removal. 
 
 2. Resolved, That it is expedient so to amend 
 the Constitution, that the Governor may remove 
 
338 
 
 JUSTICES OF THE PEACE. 
 
 [65th day. 
 
 Saturday,] 
 
 CUSHMAN HATHAWAY. 
 
 [July 23d. 
 
 any officer in the former resolves of this Com 
 mittee mentioned, within the term for which he 
 shall have been elected, giving such officer a copy 
 of the charges against him, and an opportunity 
 of being heard in his defence. 
 
 3. Resolved, That it is expedient to provide in 
 the Constitution, that, in case of vacancy, by 
 resignation or otherwise, of any state, county, or 
 district officer, whose election is provided for in 
 the Constitution, the Governor shall issue his 
 warrant to the mayor and aldermen of the sev 
 eral cities, and the selectmen of the several towns, 
 to fill the vacancy at the next annual election 
 after it shall happen ; and the Governor, with the 
 advice and consent of the Council, may appoint 
 suitable persons to fill vacancies, until an election 
 by the people. 
 
 Mr. CUSHMAN, of Bernardston. I move to 
 amend, by striking out the first resolve, and in 
 serting, in lieu thereof, Convention document 
 No. 121, as follows : 
 
 Resolved, That it is expedient to amend the 
 Constitution, as follows : 
 
 There shall be two classes of justices of the 
 peace, viz. : 
 
 1. Trial Justices, who shall be elected by the 
 legal voters of the several towns, for a term of 
 three years. There shall be one in each town, 
 and one additional for every two thousand inhab 
 itants. They shall have the same jurisdiction, 
 powers, and duties, that are now exercised by 
 justices of the peace, justices of the quorum, and 
 commissioners to qualify civil officers ; and such 
 other powers as may be given them by the legis 
 lature. 
 
 2. Justices of the Peace, who shall be appoint 
 ed, by the Governor and Council, for a term of 
 seven years ; and those who now hold that office 
 shall continue as such, according to the tenure of 
 their respective commissions : provided, that the 
 jurisdiction of justices of the peace shall extend 
 only to the acknowledgment of deeds, the ad 
 ministration of oaths, the issuing of subpoenas, 
 and the solemnization of marriages. 
 
 I believe, Mr. Chairman, there is a general 
 feeling in the community that the office of justice 
 of the peace has become too common, and there 
 fore too cheap. My object in introducing the 
 amendment, is to create a class of justices that 
 will be of higher character, and possessing a 
 higher degree of intelligence than the present 
 one. By referring to the resolution which I pro 
 pose to strike out, it will be perceived that it is 
 proposed to elect all the justices of the peace for 
 the term of three years. Now my objection is, 
 that if a sufficient number of justices are elected 
 to accommodate the people, the number elected 
 must, necessarily, be quite large ; and if the num 
 ber elected be not large, there will not be a suf 
 ficient number to accommodate the people. I 
 
 therefore propose that the justices of the peace be 
 divided into two classes ; the first to be called trial 
 justices an office of considerable importance, 
 and to give to it the entire jurisdiction now ex 
 ercised by justices of the peace, which extends to 
 all cases involving claims to the amount of one 
 hundred dollars, also the right of trial by a jury 
 of six ; and also to give them the jurisdiction 
 which is now exercised by justices of the quo 
 rum, and commissioners to qualify civil officers. 
 It will be perceived that the office of trial jus 
 tices will be one of considerable importance, and 
 if elected by the people, it seems to me that the 
 people will be so careful and cautious, that judi 
 cious and discreet men will be chosen. 
 
 It also provides, that the justices now in 
 commission will hold their offices during the 
 continuance of their present commissions, and it 
 diminishes their jurisdiction, so that as to all 
 persons appointed by the Governor and Council, 
 and also all those that now remain in office, it 
 shall extend only to the acknowledgment of deeds, 
 the administration of oaths, the issuing of sub 
 poenas, and the solemnization of marriages. 
 
 It has been suggested to me, that there should 
 be a clause, authorizing this class of justices of 
 the peace to take depositions. I had supposed 
 that, under the head of administration of oaths, 
 would be included the taking of depositions. If 
 that is not so, I should prefer adding such a 
 clause. 
 
 I think gentlemen will see, that by this ar 
 rangement there will be a perfect system, one 
 which will work well for the community, and 
 one that can easily be carried out. Therefore, I 
 hope it will be adopted, unless there are some 
 very serious objections to it. I have consulted 
 with several legal gentlemen, and also with others 
 who have been acting justices in the Common 
 wealth, and they cordially concur in my amend 
 ment. 
 
 Mr. HATHAWAY. I would much rather 
 that the matter had been discussed when the 
 chairman of the Committee was present. Sir, 
 matters that are worthy of being discussed in 
 Committee of the Whole, and of being incorpo 
 rated into the Constitution, must be of impor 
 tance ; and, however unimportant we may consid 
 er this matter of justices of the peace, I can assure 
 you that the people regard it as a matter of great 
 importance. 
 
 The complaint not only has been made, but 
 has been reiterated over and over again upon this 
 floor, and the difficulty has been felt, from time 
 to time, ever since the formation of the Constitu 
 tion in 1780, that the tenure of the office of justice 
 of the peace was such, that when once appointed, 
 
65th day.] 
 
 JUSTICES OF THE PEACE. 
 
 339 
 
 Saturday,] 
 
 HATHAWAY HALLETT. 
 
 [July 23d. 
 
 justices could not be removed ; and many se 
 rious inconveniences have been the consequence 
 of it. Many improper persons have been ap 
 pointed justices of the peace, or from age and 
 other causes, have become disqualified for the 
 office, and unable, properly, to discharge the 
 duties of the same. Much injustice and wrong 
 have been the consequences, to the people, by 
 continuing them in office after it was known that 
 they were unfit and improper incumbents, or 
 after they had become unable to discharge prop 
 erly their duties ; for there was no power under 
 the Constitution, by which they could be re 
 moved, except by impeachment, which is too 
 costly and troublesome a process. It has been 
 said upon this floor, and I think very correctly, 
 that when a justice of the peace once had his 
 commission, no matter how incompetent he 
 might be, and no matter how unfaithful in the 
 discharge of his duties, he might defy the whole 
 power of the government to remove him other 
 than by impeachment. Well, Sir, there is some 
 thing for which the gentleman from Bernardston 
 has failed to provide, as the proposition, as I un 
 derstand it, is to strike out the whole Report of 
 the Committee, which carries with it, if the 
 amendment is adopted, the provision in the Re 
 port for the removal of these officers. 
 
 Mr. CUSHMAN. I only propose to strike 
 out the first resolve reported by the Committee. 
 
 Mr. HATHAWAY. I thank the gentleman 
 for the correction ; for, as I understood the chair 
 man, it was to strike out the resolves reported by 
 the Select Committee, and substitute the resolves 
 submitted by the gentleman from Bernardston, 
 as an amendment or substitute. If the proposi 
 tion is merely to strike out the first resolve, my 
 objection is, to that extent, removed. But, Sir, 
 there are other reasons, as I stated before, on 
 account of which I am anxious that the chair 
 man and other members of the Committee which 
 reported these resolves, should be here when the 
 subject is discussed ; for, however excellent the 
 amendments that are offered, may be, I should 
 like to hear an explanation of the resolves from 
 the chairman, or some member of the Committee. 
 I should like to have them explain why they 
 have made a distinction between the election or 
 appointment of justices of the peace and justices 
 of the police courts, and also, why the distinction 
 between the removal of justices of the peace and 
 justices of these courts. They provide that the 
 justices of the peace may be removed for suffi 
 cient cause, although they cannot, in any case, 
 hold their office unless reappointed or reflected, 
 for more than seven years. Justices of the police 
 courts, by the decisions of the supreme court, 
 
 hold their offices for life, or during good beha 
 vior ; yet there is no provision made by which 
 they may be removed, however incompetent they 
 may be, nor is there any provision made for their 
 appointment, unless they are to be classed with 
 " inferior courts," and to be appointed by virtue 
 of that expression in the Constitution. And why 
 should you appoint these officers of an " inferior 
 court" with a life tenure, if you limit the tenure 
 of the judges of the supreme court to but ten 
 years ? 
 
 Now, Sir, I would have these officers made 
 elective. Certainly, if you make your judges of 
 probate elective, the justices of the police courts 
 should also be made elective ; nor should their 
 time be longer than the term of the judge of pro 
 bate. I should like to know from the chairman 
 of the Committee, or from the gentleman over 
 the way, (Mr. Cushman,) if it was intended that 
 the provision for electing the justices of the peace 
 or trial justices, was also to cover the election of 
 justices of the police court ? If such was the 
 intention, I think a farther amendment should 
 be made to the amendment proposed by the gen 
 tleman from Bernardston. It seems to me that 
 if there are good reasons for electing " trial jus 
 tices," that there are equally as good reasons for 
 having the justices of the police courts elective, 
 and for no longer term than "trial justices," and 
 certainly such should be the course where their 
 jurisdiction is only exclusive and coextensive 
 with the town or city in which they are elected ; 
 which, I believe, is not always, but usually the 
 case. I think there is one instance where the 
 jurisdiction of the justice of the police court ex 
 tends over two towns. I know, however, of no 
 substantial reasons why they should not be in 
 cluded in the same category with trial justices, as 
 to the mode of their appointment and tenure in 
 office. But, Sir, the Committee who have had 
 this matter in charge, I doubt not, have exam 
 ined it, and they may be able to give reasons 
 which may be satisfactory, for making a distinc 
 tion ; and hence I am unwilling, at this time, to 
 offer an amendment I have prepared, or to go 
 farther into the discussion of this proposition 
 when none of that Committee are present. It is 
 due to the chairman and members of that Com 
 mittee, that we should give them an opportunity 
 of defending their Report. For this reason, I am 
 constrained to make the motion which I do now 
 make, that the Committee rise, report progress, 
 and ask leave to sit again. 
 
 Mr. HALLETT. I hope that motion will not 
 prevail. I have prepared one or two amendments 
 to the amendment of the gentleman from Ber 
 nardston, which I desire to present. 
 
340 
 
 JUSTICES OF THE PEACE. 
 
 [65th day. 
 
 Saturday,] 
 
 HATHAWAY HALLETT MORTON CUSIIMAN BUTLER. 
 
 [July 23d. 
 
 Mr. HATHAWAY. If the gentleman has 
 any amendments to propose, I will withdraw the 
 motion. 
 
 Mr. HALLETT. I then have two amend 
 ments, which, if incorporated in the proposition 
 of the gentleman from Bernardston, will recon 
 cile me to this plan. As has been stated, by the 
 existing law, according to the decision of the 
 supreme court, the justices of the police courts 
 are recognized as holding a life tenure. Now, 
 Sir, I see no reason why these officers should not 
 be placed on a par with the justices of the peace, 
 so far as their election and tenure are concerned. 
 Certainly, it is hardly consistent to provide, as we 
 have done, that even the judges of the supreme 
 judicial court shall be limited to a term of years, 
 and the justices of the police courts, shall be 
 appointed for life. I therefore move to add as 
 follows : 
 
 Justices of the police courts shall be elected 
 by the legal voters of the several towns and cities 
 wherein such courts are established. 
 
 Mr. MORTON, of Taunton. I move to insert 
 in the second paragraph, after the word " deeds," 
 the words, " the taking of depositions," so that 
 the proviso would read : 
 
 Provided, That the jurisdiction of Justices of 
 the Peace shall extend only to the acknowledg 
 ment of deeds ; the taking of depositions ; the 
 administration of oaths ; the issuing of subp(jenas ; 
 and the solemnization of marriages. 
 
 Mr. CUSHMAN. I accept that amendment. 
 
 Mr. HALLETT. I now move to strike out 
 the whole proviso of the second section, and to 
 insert in its place the following : 
 
 Provided, That the jurisdiction of Justices of 
 the Peace shall not extend to the trial of causes, 
 or the issuing of warrants. 
 
 The whole resolve would then read : 
 
 Justices of the Peace, who shall be appointed 
 by the Governor and Council for a term of seven 
 years ; and those who now hold that office shall 
 continue as such, according to the tenure of their 
 respective commissions : provided, that the juris 
 diction of justices of the peace shall not extend to 
 the trial of causes, or the issuing of warrants. 
 
 Mr. CUSHMAN. This is a matter for legal 
 gentlemen to settle, I will admit ; but it seems to 
 me, that it will not be so plain as it is in the propo 
 sition as originally offered. Gentlemen will see, 
 by looking at the section as originally offered, 
 that the jurisdiction of the justices of the peace is 
 made definite and clear. It prescribes distinctly 
 
 that it shall extend only to the administration of 
 oaths, the issuing of subpoenas, the acknowledg 
 ment of deeds, the taking of depositions, and the 
 solemnization of marriages. Now, it seems to 
 me, that if the amendment of the gentleman for 
 Wilbraham is adopted, the jurisdiction, the power, 
 the authority, and the duties of the justices of the 
 peace will be left undefined. I think, therefore, 
 the amendment to this section had better not be 
 adopted. 
 
 Mr. BUTLER, of Lowell. I find my mind 
 very strongly inclined to favor the amendment of 
 the gentleman for Wilbraham, (Mr. Hallett,) for 
 precisely the same reason that the gentleman from 
 Bernardston, (Mr. Cushman,) has given for re 
 jecting it. The amendment of that gentleman 
 makes the jurisdiction, of the justices of the peace 
 too definite. It does not allow them to do any 
 thing, except to administer oaths, acknowledge 
 deeds, take depositions, issue subpoenas, and 
 solemnize marriages. Now there are a great many 
 other things which the justice of the peace ought 
 to be authorized to do. In the first place, he is 
 to get as near to a riot as he can, and order them to 
 disperse. He is a qualifier of militia officers. 
 But, without going into the detail of these duties, I 
 will merely say, that there are a great many things 
 which it is the duty of the justices of the peace to 
 perform ; and which, unless left to the legislature 
 to provide, will be found to create much trouble. 
 For instance, they are to demand pedlars licences. 
 I only call the attention of the Convention to 
 these particulars, to show that there are many 
 things which a justice of the peace should per 
 form, besides those enumerated in the amendment 
 of the gentleman from Bernardston. 
 
 Now, the amendment of the gentleman for Wil 
 braham, leaves the matter of what they shall do, 
 to the legislature to settle ; it only prescribes that 
 they shall not try causes or issue warrants. That 
 leaves with them the power of acting as conserva 
 tors of the peace, the same as the constables, which 
 the amendment of the gentleman from Bernards- 
 ton would take away from them. 
 
 Now, Sir, when defining the duties of an offi 
 cer like this, I am, as a rule, always in favor of 
 taking away the jurisdiction I do not want them 
 to exercise, rather than of defining that I do want 
 them to exercise. I prefer to say, that they shall 
 not do such and such things, and leave the matter 
 of what they shall do an open question, rather 
 than to say they shall only do such and such 
 things. That is precisely the ground upon which 
 the amendment of the gentleman for Wilbraham 
 is based. It excludes them from trying causes 
 and issuing warrants, but leaves them to do what 
 ever else it is proper for them to do. If you un- 
 
66th day.] 
 
 CONSTITUTIONAL CONVENTIONS, &c. 
 
 341 
 
 Monday,] 
 
 BUTLER WESTON HALLETT. 
 
 [July 25th. 
 
 dertake to define precisely what the justice of the 
 peace shall do, there will be something left out 
 which we shall find aftewards will be the occasion 
 of much inconvenience. If there had been a 
 single justice of the peace on the ground, in 
 Charlestown, to have given the firemen orders to 
 go on and quell the riot, at the time the convent 
 was burned, they would have quelled it ; and 
 there are very many duties which cannot now be 
 foreseen. I am, therefore, in favor of the amend 
 ment of the gentleman for Wilbraham, for these 
 reasons. I am also in favor of the first amend 
 ment offered by that gentleman, which provides 
 for the election of the justices of the police courts 
 by the people, as well as of trial justices. I am 
 not aware that the jurisdiction of a police justice 
 is of a higher character than that of a justice of 
 the peace; yet, according to the construction which 
 has been given to the present Constitution, there 
 is no way of getting them out of office. Now, I 
 do not know why a justice of the peace who lives 
 in a city, and has the power to fry causes, should 
 be a life officer, any more than a justice of the peace 
 who lives in the country, and performs exactly 
 the same duties. I am, therefore, in favor of this 
 amendment, which puts the police justices in the 
 same category with the trial justices, making them 
 elective for the term of three years ; giving the 
 same power of removal as in the case of other like 
 officers. I think the people in the cities are just 
 as competent to elect their justices as are the peo 
 ple in the country. I know of some places where 
 they would not get elected, but I also know of 
 some places where they would not be reappointed ; 
 but I believe, that in the places where they would 
 not be elected they would not be reappointed. I 
 hope, therefore, that the amendments of the gen 
 tleman for Wilbraham will be adopted, and that 
 the proposition of the gentleman from Bernards- 
 ton, as amended, will then be accepted. 
 
 Mr. WESTON, of Duxbury. These resolves 
 come from the Committee of which I am a mem 
 ber ; but I regret that it is not in my power to 
 make the explanation which has been called for. 
 Having been absent from the Committee when 
 this subject was acted upon, I am unable to give 
 the reasons which governed them in reporting 
 these resolutions. I, myself, was in favor of the 
 general proposition of electing the justices of the 
 peace by the people. But, as I know the chair 
 man of the Committee feels a great interest in this 
 matter, as do some of the other members of the 
 Committee, who are not now present, for the pur 
 pose of giving them an opportunity of defending 
 their own Report, I move that the Committee do 
 now rise, report progress, and ask leave to sit 
 again. 
 
 The motion was agreed to ayes, 70 ; noes, 37. 
 The Committee accordingly rose, and the Pres 
 ident having resumed the chair of 
 
 THE CONVENTION", 
 
 The chairman reported progress, and asked that 
 the Committee have leave to sit again. 
 
 Mr. HALLETT said he hoped that the Com 
 mittee would not have leave to sit again, but that 
 they would be discharged from the further con 
 sideration of the subject. 
 
 The question being upon granting leave, no 
 quorum voted, when 
 
 On motion of Mr. BRIGGS, of Pittsfield, the 
 Convention adjourned until Monday at ten o clock, 
 A.M. 
 
 MONDAY, July 25, 1853. 
 
 The Convention assembled pursuant to adjourn 
 ment, and was called to order by the President 
 pro tempore, at ten o clock, A. M. 
 
 Prayer by the Chaplain. 
 
 The journal of yesterday was read. 
 
 The Convention proceeded to consider the 
 Orders of the Day, the first item being the sub 
 ject specially assigned for consideration this 
 morning, viz. : the resolves on the subject of 
 
 Amendments to the Constitution. 
 
 The pending question being on the amendment 
 of the gentleman from Pittsfield, (Mr. Briggs,) 
 to the amendment of the gentleman for Wilbra 
 ham (Mr. Hallett). 
 
 Mr. HALLETT, for Wilbraham. I wish to 
 state, in relation to the proposition that was offered 
 by me the other day, as a substitute for the origi 
 nal Report of the Committee, that there is now 
 pending to it an amendment proposed by the 
 gentleman from Pittsfield, which is in effect to 
 leave to the legislature the regulating of the mat 
 ter of calling Conventions for the revision of the 
 Constitution. If I understand the intention of 
 the friends of constitutional reform, their de 
 sire is that Conventions for the revision of the 
 Constitution may hereafter be held when the 
 people desire it, without the intervention of the 
 legislature. And a proposition has been presented 
 for that purpose, in the form of a substitute for 
 the resolve reported by the Committee. Some 
 exception, however, was taken to that substitute, 
 as embodying too fully the Act of 1852, in which 
 Act, there was something relating to the law as it 
 now exists, which in one of the criticisms of 
 gentlemen, was supposed to throw some doubt 
 upon its construction. I must say, in regard to 
 this objection, that it is rather technical than sub- 
 
342 
 
 CONSTITUTIONAL CONVENTIONS. 
 
 [66th day. 
 
 Monday,] 
 
 BRIGGS SIMMONS. 
 
 [July 25th. 
 
 stantial ; but at the same time, I wish to avoid 
 technical objections of this sort. 
 
 Now, the proposition of the gentleman from 
 Pittsfield, is one which all can understand. It 
 proposes to take the question away from the 
 legislature to depart from the old doctrine that 
 the people shall not reform their government 
 unless in conformity with an act of the existing 
 powers. Now, it appears to me, the question of 
 adhering to such a doctrine as that, is one that 
 will be very readily disposed of by this Conven 
 tion. I do not apprehend that it can stand for a 
 moment. 
 
 Should the present motion be rejected, I shall 
 then desire to propose several amendments to the 
 resolutions, which I now give notice that I will, 
 at the proper time, present to the Convention for 
 its consideration. 
 
 Mr. BRIGGS, of Pittsfield. I stated the 
 other day, that I preferred the first proposition 
 reported from the Committee, to the amendment 
 of the gentleman for Wilbraham ; and my amend 
 ment was intended to restore that proposition, 
 so far as it was affected by the amendment of 
 the gentleman. It only incorporates into his 
 amendment the principle contained in that first 
 resolve. But, if it should be amended in the 
 way proposed by the gentleman, my impression 
 now is, that I would vote against the amended 
 proposition, for the purpose of going back to the 
 Report of the Committee, which I think is pre 
 ferable. 
 
 Mr. SIMMONS, of Hanover. I am unwil 
 ling to detain the Convention at this stage of its 
 proceedings, and will not, with any extended 
 remarks ; but I cannot suffer the amendment 
 which has been proposed by the gentleman from 
 Pittsfield, to pass, without saying a few words in 
 opposition to it. It appears to me that by its 
 adoption, we should at once become dependent 
 upon the will of the legislature, whether we 
 should ever have a Constitutional Convention or 
 not. And I ask the gentleman what he would 
 propose to do in case one House should see fit to 
 reject any law which the other might adopt in 
 relation to this subject for unless the two Houses 
 agree, the whole thing falls to the ground ; no 
 Convention can be held, and your State Consti 
 tution cannot be amended. But, there is another, 
 and in my judgment, a greater evil than that. 
 Gentlemen must be aware that we have adopted 
 a system of representation which it will be found 
 allows a minority of the people to control the 
 elections of representatives in the legislature. 
 "We shall, therefore, when this evil has increased, 
 when it shall have grown, perhaps enormous; 
 when from less than a minority it shall have 
 
 descended until it becomes lodged in the hands of 
 a fourth or a fifth, or even a tenth of the people, 
 we are then to be dependent upon the will of a 
 tenth of the people whether we shall have a Con 
 vention whether the Constitution shall be revised. 
 In other words, one-tenth part of the people of 
 the Commonwealth shall have it in their power 
 to say whether they will give up the power they 
 have whether they will give up the control of 
 the Commonwealth. Well, now has it ever been 
 known, when any set of men had power in their 
 hands which did not rightfully belong to them, 
 that they willingly gave it up ? Go back in the 
 history of the world to the earliest times and 
 trace the course of events down to this hour, and 
 where will you find an instance of a party having 
 power who were willing to yield up that power ? 
 The Stuarts might have maintained their ground 
 if they had yielded somewhat ; but they would 
 not, and it cost them their heads. So too, the 
 Bourbons, who are said never to have learned, 
 and never to have forgotten anything, always 
 yielded when it was too late, and it cost them 
 their throne. It has been so in our times, and in 
 this country. How has it been in the neighbor 
 ing State of Rhode Island ? A very small minor 
 ity of the people held out in a struggle of forty 
 years or more, during which, they refused to give 
 up the power, and it brought about something 
 like a revolution an unsuccessful revolution, I 
 admit but for that revolution, we had, in a great 
 measure, to thank the good citizens of Massachu 
 setts. It was the arms of Massachusetts, loaned 
 by Massachusetts officers, that were used to put 
 down the majority of the legal voters of Rhode 
 Island. Yet, we see men of the same party, 
 men who stood shoulder to shoulder with each 
 other to put down the majority of the legal voters 
 in Rhode Island, we find them now on the other 
 side. And, I say, reasoning from all this, it is 
 dangerous to leave it in the power of the legisla 
 ture to say, whether or not we shall have a Con 
 vention ; it is dangerous to leave it to the legisla 
 ture to say, what shall be the basis of the 
 Convention to revise the Constitution of the State, 
 when a Convention for that purpose shall be 
 agreed upon. But, it is necessary that we should 
 have some provision that will execute itself. I 
 am willing, therefore, that the proposition sub 
 mitted by the gentleman for Wilbraham, or the 
 proposition submitted by the gentleman for Marsh- 
 field, (Mr. Sumner,) one or both of them, should 
 be adopted. They would cure a part of the evil. 
 They would go as far as this : that a Convention 
 should be held, whether the legislature existing 
 at the time should consent or not. The objection 
 to the proposition of the gentleman from Pitts- 
 
66th day.] 
 
 CONSTITUTIONAL CONVENTIONS. 
 
 343 
 
 Monday,] 
 
 SIMMONS UPTON BRADFORD. 
 
 [July 25th. 
 
 field, (Mr. Briggs,) is, that it leaves to the legisla 
 ture the power to control the matter. For these 
 reasons, with all due respect for the experience of 
 the gentleman from Pittsfield, I must respectfully 
 protest against its adoption. 
 
 But after we have got to that extent, after we 
 have secured a provision by which a Convention 
 may hereafter be called, I say this Convention 
 is bound to go one step farther to prevent those 
 who represent but a small minority of the people 
 of the Commonwealth, from controlling the Com 
 monwealth in regard to this matter. If we do 
 not, I will venture to say that our descendants 
 will never see anything like equal representation 
 in their government. 
 
 And the way in which I would do this, is by 
 adopting the proposition which I submitted in 
 Committee of the Whole, and which was voted 
 down, for the reason that there was no opportu 
 nity given to explain it. And lest there should 
 be no opportunity to submit it again, I will state 
 that it corresponds with the proposition of the 
 gentleman for Wilbraham, with the additional 
 provision that all magistrates, justices, and persons 
 in authority, shall recognize all meetings of the 
 people that shall be holden for the purpose of 
 revising the Constitution ; so that we shall not 
 fall into the evil that the people of Rhode Island 
 did from the earliest times. All writers on con 
 stitutional law, from the earliest times down to 
 the present hour, the judges of the supreme 
 court, and amongst them Judge Marshall himself, 
 all recognize the right of the people to amend or 
 abolish their fundamental law. It is true the 
 amendment of the gentleman for Wilbraham 
 embodies that doctrine, though not so strongly as 
 I desire. In Rhode Island, as there had been no 
 legislation on the subject, the courts could not 
 take notice of the movements made by the people 
 to amend their Constitution, though it was known 
 that a majority had voted to amend it. Now I 
 want to avoid this ; I want to avoid the possi 
 bility of the occurrence of such a state of things 
 in this Commonwealth. Let us require our 
 courts to take notice of such action on the part of 
 the people. And if any considerable body of the 
 people can make out to the satisfaction of the 
 court and jury that a majority of the citizens of 
 the Commonwealth had decided that they would 
 have a Convention in a certain manner, let them 
 have it. If we adopt such a provision, in my 
 judgment, this evil would be wholly cured. 
 
 There are many other points that I would like 
 to enlarge upon, but the time allowed me is not 
 sufficient for that purpose. There are many sub 
 jects that come before the Convention in which I 
 feel a deep and abiding interest, but this is, per 
 
 haps, the greatest of them all. I feel that Rhode 
 Island has suffered, and I feel that Massachusetts 
 has done a grievous wrong in this matter, when 
 she should have done what in her lay to farther 
 a sacred principle of liberty. I hope that this 
 Convention will not adjourn until we have done 
 what shall, in some degree, serve to repair that 
 wrong, or at least prevent its occurrence hereafter. 
 
 Mr. UPTOX, of Boston. I hope the proposi 
 tion now under consideration will not prevail, 
 but that the Convention will finally adopt the 
 Report of the Committee, which I think is simple 
 and explicit, and covers the whole ground. I 
 object to the proposition of the gentleman for 
 Wilbraham, (Mr. Hallett,) because it undertakes 
 to establish a basis now for future amendments to 
 the Constitution, and instead of establishing it 
 upon the popular branch of the legislature, the 
 Senate, it proposes to establish it upon the House 
 of Representatives, which is not the popular 
 branch but the representative of corporations. I 
 object, therefore, as a matter of principle, in un 
 dertaking to establish here a basis for future 
 amendments to the Constitution, as I regard it as 
 an anti- democratic principle to do so. In all the 
 debates upon this floor in relation to the present 
 basis of representation, it has been admitted that 
 the Senate is the popular branch. It has been 
 claimed, and conceded in part, that towns were 
 entitled to a greater representation on account of 
 the concession made that the Senate should be 
 elected upon the basis of population. I object, 
 therefore, to the proposition of the gentleman for 
 Wilbraham, (Mr. Hallett,) because, as I said 
 before, it establishes a basis now for making 
 future amendments to the Constitution, instead 
 of leaving the matter as is proposed by the Report 
 of the Committee, to the legislature. As I under 
 stand the gentleman for Wilbraham, (Mr. Hal 
 lett,) he submits that proposition as an entire 
 proposition, upon which hereafter to base amend 
 ments to the Constitution. By the Report of the 
 Committee, it is provided that amendments may 
 be proposed by the Senate and House of Repre 
 sentatives, and then submitted to the people. It 
 seems to me very important that such a provision 
 should be inserted in the Constitution, in case 
 any clerical errors should be made, or any other 
 errors in the amendments which you should adopt, 
 that would need correction. The proposition of 
 the gentleman for Wilbraham, (Mr. Hallett,) 
 makes no provision for a case of this kind. Under 
 the circumstances I hope, therefore, that the Re 
 port of the Committee will be adopted. 
 
 Mr. BRADFORD, of Essex. I agree to the 
 principle contained in the amendment of the gen 
 tleman for Wilbraham and I suppose that a 
 
344 
 
 CONSTITUTIONAL CONVENTIONS. 
 
 [66th day. 
 
 Monday,] 
 
 BUCK HALLETT SIMONDS. 
 
 [July 25th. 
 
 large majority of the Convention will agree to it 
 that the people alone aro the sovereignty, that 
 they are the source of power, and that they have 
 power to alter or amend their Constitution with 
 out the intervention of the legislature, or any con 
 stitutional authority within, or without the State. 
 There are some objections, however, to the plan 
 proposed by the gentleman for Wilbraham ; and 
 I desire, if it is in order at this time, or when it 
 shall be in order, to propose an amendment to 
 that proposition. As the proposition now before 
 us is a substitute for the proposition of the Com 
 mittee, I suppose an amendment to that substi 
 tute is now in order. If so, I would offer it at 
 this time. If not, I desire to offer it at some 
 future time. 
 
 The PRESIDENT. The amendment of the 
 gentleman from Essex is not in order at this time, 
 as an amendment to an amendment is now pend 
 ing. 
 
 Mr. BUCK, of Lanesboro . As this is an 
 amendment to an amendment, and as it is not in 
 order to propose a farther amendment, I shall 
 therefore call for a division of the question. 
 
 The PRESIDENT. The question will first be 
 taken upon the amendment of the gentleman from 
 Pittsfield, (Mr. Briggs,) to strike out the follow 
 ing words : "in conformity with the provisions of 
 the Act of 1852, chapter 188, relating to calling a 
 Convention of the delegates of the people for the 
 purpose of revising the Constitution." 
 
 Mr. HALLETT, for Wilbraham. I presume 
 the yeas and nays w r ere ordered upon this ques 
 tion with the understanding that they were not 
 to be taken upon a proposition to which every 
 body seems agreed, but upon the other parts of 
 the proposition. I move a reconsideration of the 
 vote, therefore, by which the yeas and nays were 
 ordered. 
 
 The question was taken upon Mr. Hallett s 
 motion, and it was decided in the affirmative. 
 
 So the vote by which the yeas and nays were 
 ordered, was reconsidered. 
 
 The question was then taken, whether the yeas 
 and nays should be ordered upon Mr. Briggs s 
 amendment, and it was decided in the negative. 
 
 So the yeas and nays were not ordered. 
 
 The question was taken upon Mr. Briggs s 
 amendment, and it was adopted. 
 
 The question then recurred on the following 
 amendment, to strike out the words " with the 
 same authority as is provided in the 2d, 3d, and 
 4th sections of said Act," and to insert in lieu 
 thereof, the following : " to be provided by the 
 legislature to be chosen at said election." 
 
 The question was taken, and the amendment 
 was rejected ayes, 77 ; noes, 105. 
 
 Mr. HALLETT, for Wilbraham, moved to 
 amend the first resolve by striking out, and in 
 serting the following : 
 
 1. A Convention to revise or amend this Con 
 stitution, may be called and held in the following 
 manner : At the general election in the year 
 one thousand eight hundred and seventy- three, 
 and in each twentieth year thereafter, the quali 
 fied voters in State elections shall give in their 
 votes upon the question : " Shall there be a Con 
 vention to revise the Constitution ? " which votes 
 shall be received, counted, recorded, and declared, 
 in the same manner as in the election of governor ; 
 and a copy of the record thereof, shall, within one 
 month, be returned to the office of the Secretary 
 of State, who shall, thereupon, examine the same, 
 and shall, officially publish the number of yeas 
 and nays given upon said question, in each town 
 and city, and if a majority of said votes shall be 
 in the affirmative, it shall be deemed and taken to 
 be the will of the people that a Convention shall 
 meet accordingly ; and thereafter, on the first 
 Monday of March ensuing, meetings shall be 
 held, and delegates shall be chosen, in all the 
 towns, cities, and districts, in the Commonwealth, 
 in the manner and number then provided by law 
 for the election of the largest number of represent 
 atives, which the towns, cities, and districts shall 
 then be entitled to elect in any year of that de 
 cennial period. And such delegates shall meet in 
 Convention at the State House, on the first 
 Wednesday of May next ensuing, and when or 
 ganized, shall have all the powers necessary to 
 execute the purpose for which such Convention 
 was called ; and may establish the compensation 
 of its officers and members, and the expense of 
 its session, for which the Governor, with the ad 
 vice and consent of the Council, shall draw his 
 warrant 011 the treasury. And if such alterations 
 and amendments as shall be proposed by the Con 
 vention, shall be adopted by the people voting 
 thereon, in such manner as the Convention shall 
 direct, the Constitution shall be deemed and taken 
 to be altered or amended accordingly. And it 
 shall be the duty of the proper officers, and per 
 sons in authority, to perform all acts necessary to 
 carry into effect the foregoing provisions. 
 
 Mr. SIMONDS, of Bedford. I would inquire, 
 Mr. President, if it is in order to offer an amend 
 ment at the present time ? 
 
 The PRESIDENT. It is not. 
 
 Mr. SIMONDS. I do not propose, Mr. Pres 
 ident, to oppose this amendment ; but still, I 
 think it is incomplete ; and any other measure 
 proposed for amending the Constitution, -I think 
 is incomplete, which does not exclude the ninth 
 article of the amendments of the present Consti 
 tution. 
 
 Why do we wish for a principle in the Consti 
 tution, embracing, as this does, the power of the 
 legislature to unmake any Constitution which the 
 people may establish ? I suppose that if a prin- 
 
66th day.] 
 
 CONSTITUTIONAL CONVENTIONS. 
 
 345 
 
 Monday,] 
 
 SlMONDS CnOWNINSHIELD. 
 
 [July 25th. 
 
 ciple of this kind is necessary, it is necessary for 
 some beneficial effect ; and I would call the atten 
 tion of the Convention to this inquiry, whether 
 it has any beneficial effect ? It is known that it is 
 a new principle, which originated in the Conven 
 tion of 1820, for the ostensible purpose of amend 
 ing the Constitution in unimportant and specific 
 matters, which it Avas supposed might be done by 
 this mode when it would be inconvenient to get 
 a vote of the people for calling a Convention. 
 But I would ask if the experience of thirty- three 
 years has shown that such a power is needed to 
 make unimportant and specific amendments ? 
 The legislature has been called upon four times 
 to act upon this matter ; and what have been the 
 subjects to which their attention has been called r 
 There have been only three subjects acted upon, 
 which I contend were of the most important and 
 fundamental character of any in the Constitution, 
 to wit : the third article of the Bill of Rights ; the 
 basis of the House of Representatives ; and the 
 third one, which I consider less important, re 
 lating to the time of the meeting of the legisla 
 ture. These three subjects are all that it has 
 been found necessary to act upon, since the Con 
 stitution was adopted, as amended in 1820. 
 
 Now, I submit, that in the experience of thirty 
 years, there has been no occasion for the exercise 
 of this power by the legislature, except in those 
 cases which were of the most vital importance. 
 If this is a necessary principle, we might as well 
 say at once that we have done with holding Con 
 ventions ; and we will have, then, all amendments 
 submitted through that channel. If this principle 
 should not be retained, and the amendment now 
 offered should go in, then, I submit, that it would 
 be better to leave it entirely to this course. I am in 
 favor of the amendment, because I am opposed to 
 retaining this principle in the Constitution ; and I 
 shall vote against every proposition which does 
 not provide against the exercise of this legislative 
 mode of submitting amendments in the future. 
 If the legislature are to have this power, and it is 
 thought proper that they should act as they have 
 done heretofore upon the most important subjects 
 contained in the Constitution, this is leaving all 
 the power to the legislature, and saying, at once, 
 that the voice of the people is properly expressed 
 through their agents, the legislature ; now, I 
 would go back to the original ground, and declare 
 that the legislature have no right to interfere with 
 the fundamental law which the people have es 
 tablished by the mode of a Convention. One of 
 these two principles must be adhered to, as a fun 
 damental restraint upon the government. I can 
 not see the propriety of retaining both of these 
 principles, which are, in my opinion, diametrically 
 
 23 3 
 
 opposed to each other in their character. When 
 we consider the nature of the subjects which the 
 legislature have heretofore proposed for amend 
 ment, in the exercise of that power, we shall find 
 that it has only been \ised to effect changes in the 
 Constitution which the people had rejected. This 
 result has been effected by reversing the declara 
 tion in the Bill of Rights, which says the people 
 alone have the right to alter and amend the form 
 of government, by introducing another power, 
 which changes that, and says the legislature also 
 have a right to propose amendments to the frame 
 of government. And how does this principle 
 operate ? The people can never express in any 
 direct form, an opinion how the Constitution 
 should be amended. They must wait until the 
 legislature propose the amendments in form, as 
 they are to be adopted. Now, according to my 
 opinion, the people are the proper power to declare 
 what is necessary for an amendment of our fun 
 damental law. It was on this great principle 
 that our Constitution was formed at first. We 
 have heard it stated in the history of the forma 
 tion of the Constitution, that the legislature un 
 dertook to propose to the people the fundamental 
 law, which the people rejected, and ever after 
 wards went on and proposed for themselves 
 until recently in a legitimate and proper manner, 
 as I believe. 
 
 The history of this legislative mode of amend 
 ments show, that it has only been used to defeat 
 the will of the people, as previously expressed, on 
 each of the several subjects that have been intro 
 duced into the Constitution by that mode of 
 amendment. And the same results may be ex 
 pected to follow, if that power is retained, judging 
 the future by the past. 
 
 It is said this system was adopted by the people 
 in 1820 ; but it was held out to them that the 
 power of the legislature was only to be used in 
 reference to unimportant matters. This was the 
 argument which was put before them. And now, 
 since the history of the exercise of this power has 
 shown that it has not been exercised in minor 
 matters, but only in reference to important mat 
 ters, it appears to me that we should now be 
 satisfied that it is not necessary to retain that 
 power, unless we are prepared to show that the 
 legislature is the proper medium throxigh which 
 to express the act of the people. 
 
 Mr. CROWNINSHIELD, of Boston. I do 
 not intend to detain the Convention at this late 
 period of the session, to go over again the same 
 matters which I had the honor to present hereto 
 fore. I wish to say but a word or two with re 
 gard to the objections which I have to this amend 
 ment. We all agree that the great mass of the 
 
346 
 
 CONSTITUTIONAL CONVENTIONS. 
 
 [66th day. 
 
 Monday,] 
 
 CKOWNINSHIELD DENTON. 
 
 [July 25th. 
 
 people have the right to frame their Constitution, 
 and alter it at pleasure. Nobody denies that 
 proposition. I think I see the object of the 
 amendment of the gentleman for Wilbraham, to 
 be a proposition to carry 6ut, and forever to fasten 
 upon us, what I must call the unjust principle of 
 representation which has been established by a 
 majority of this Convention. We have decided 
 to submit to the people, for their consideration, a 
 proposition to establish a House of Representa 
 tives, not upon the principle of equality, but 
 upon an arbitrary, uncertain, and varying princi 
 ple, and one that, I must say, I think is unfair 
 and unjust ; a principle which will give to a small 
 minority of the people, the control of that body. 
 Now, Sir, the amendment proposed by the 
 gentleman for Wilbraham, contains this propo 
 sition : that whenever it shall be determined upon 
 hereafter to call a Convention of the people, that 
 .Convention shall be apportioned upon the basis of 
 Representation which may then exist. If the peo 
 ple accept the proposition we have submitted to 
 biu., then equality of representation is gone, and 
 ny future Convention which may assemble under 
 a call of the people, to alter and frame the funda 
 mental laws .of the Commonwealth, will by no 
 means represent the people of the Commonwealth. 
 Sir, it is proposed by the system of representation 
 we have adopted, to put the chain upon us of the 
 large cities and .towns. I say the chain, Sir. It 
 is taking away from my constituents their just 
 rights to be equally represented ; and the propo 
 sition of the gentleman for Wilbraham is to rivet 
 this chain upon us forever. What have we seen 
 here in this body of delegates of the people, in 
 which my constituents are not equally represent 
 ed with the constituents of many gentlemen on 
 this floor ? Here is a Convention of delegates not 
 fully representing the people, and the first thing 
 they do is to go on and propose a basis of repre 
 sentation which is already, under the existing pro 
 visions of the Constitution, unequal, vastly more 
 unequal ; and we are called upon to adopt a prin 
 ciple for calling a Convention in 1873 upon the 
 same principle of inequality. Where shall we be 
 then, who are now shorn of our just rights? 
 "What will become of us then ? The next thing, 
 in this progressive age if this is democratic and 
 republican will be to have an equal horizontal 
 representation of the corporations, so that some 
 little petty town, in point of numbers containing 
 three, or four, or five hundred inhabitants will be 
 as largely represented, and have as many votes, as 
 the city of Boston, which will contain at that 
 time perhaps two hundred and fifty or three hun 
 dred thousand inhabitants. And it is just as 
 right and just that they should do so, as to have 
 
 the unequal representation which we have given 
 them already. These are, in one word, the 
 reasons why I must vote against the amendment. 
 
 Upon the question of the expediency of sub 
 mitting the question to the people every twenty 
 years, whether or not they will have a Convention, 
 I have nothing to say. If it is thought by this 
 Convention expedient to do so, I do not rise to 
 oppose it. But if such a proposition is to be sub 
 mitted to the people, or any other proposition 
 whereby a Convention is to be called, I will not 
 vote for it unless it contains the great funda 
 mental, essential, eternal principles of a republi 
 can government of justice and equality. If, 
 therefore, the gentleman from Essex, (Mr. Brad 
 ford,) has an opportunity to submit his amend 
 mentwhich, from a somewhat careful attention 
 to it as he read it, I think I understand I will go 
 for it, because it provides for an equal representa 
 tion of all the people in any future Convention. 
 This is the first time I have known it contended 
 for, that the municipal corporations of this Com 
 monwealth, and acting as corporations, have a 
 right, or should have a right, to make a funda 
 mental law. Against such a proposition as that, I 
 here enter my earnest and solemn protest. When 
 the gentleman from Essex has an opportunity to 
 bring in his amendment which does provide for 
 an exact and equal representation of the people in 
 any future Convention I am willing to vote for 
 it, although it may not be in the precise form 
 which I would make it if I had drawn it up to 
 suit myself. 
 
 Mr. DENTON, of Chelsea. I did not intend 
 to express any opinion upon the subject now be 
 fore the Convention ; but the remarks of the gen 
 tleman who represents Boston (Mr. Crownin- 
 shield) have induced me, in a few words, to reply 
 to the argument he has used with regard to the 
 representation of Boston on this floor. I, Sir, 
 represent a portion of Suffolk County. I take 
 issue with that gentleman on the question of the 
 representation of Boston and the other towns in 
 Suffolk County. Comparing the population of 
 Boston with the population, of Chelsea, we find 
 that Boston is more fully represented than Chel 
 sea. Chelsea has a population of near nine thou 
 sand, and Boston has some one hundred and 
 thirty- five thousand. Boston is represented on 
 the floor of this Convention by forty-four repre 
 sentatives, and Chelsea has but two. Now, I ask 
 the gentleman from Boston, if Boston is not more 
 fully represented than the town of Chelsea ? He, 
 I am sure, will not deny this fact. Not only 
 have they more delegates upon this floor, in pro 
 portion to their population, than the town I 
 have the honor to represent; but also by the 
 
66th day.] 
 
 CONSTITUTIONAL CONVENTIONS. 
 
 347 
 
 Monday/ 
 
 DENTON. 
 
 [July 25th. 
 
 election of those delegates on a general ticket, 
 each and every voter in the city of Boston was 
 entitled to vote for forty- four delegates to this 
 Convention, while the voters of the town of Chel 
 sea, in their representation upon this floor, were 
 only entitled to vote for two. Sir, does this look 
 as if Boston was unequally represented ? I think 
 not. Now, Mr. President, these are facts, and 
 no will deny it. Consequently, I say, that Bos 
 ton is equally, and more than equally represented, 
 and will be, as long as the general ticket system 
 prevails. 
 
 And now, Sir, one word in regard to the sub 
 ject before the Convention a subject, in my 
 opinion, one of the most important that will be 
 submitted to the people the rights of the people 
 themselves, whether the people, through their 
 qualified voters, independent of all legislative 
 enactments, shall have the power to call a future 
 Convention, or whether they will delegate that 
 power to future legislatures. That is the ques 
 tion. And, I believe, if the proposition of the 
 gentleman for Wilbraham (Mr. Hallett) should 
 be accepted, it would be precisely what the people 
 want. It gives them the right, without any leg 
 islative interference, to hold their future Conven 
 tions. Now, Sir, why not submit this proposi 
 tion to the people ? It is a proposition for them 
 to act upon a question which is of vital interest 
 to every man, woman and child, in the whole 
 Commonwealth, and one which if they adopt, must 
 be by a majority of legal votes cast in the whole 
 Commonwealth, and not by a majority of the 
 towns, or a majority of the representatives of the 
 towns. It is for the people themselves to decide, 
 if this proposition is submitted to them, whether 
 they will accept or reject it. If the people say 
 aye, it will be incorporated into the Constitution, 
 and become a part of the fundamental law of the 
 State. And now, Sir, what would be the effect 
 of this law, provided it should be adopted ? It is 
 that the people, in their primary capacity, through 
 their qualified voters, may decide in 1873 whether 
 they will have a Convention for the purpose of 
 revising the Constitution: Then, again, it will 
 require a majority of all the votes cast in the 
 State to call a Convention ; and if a majority 
 should decide that the Constitution ought to be 
 revised or amended, why the delegates elected 
 would meet, according to the provision in the 
 Constitution, and transact their business without 
 any of the formula that would be attached if the 
 authority of the legislature was required before 
 the people could themselves act upon the ques 
 tion. This, of itself, is a sufficient reason, in my 
 opinion, why the proposition of the gentleman for 
 Wilbraham should be adopted. It has been ob 
 
 jected, by gentlemen opposed to the adoption of 
 these resolutions, that any specified time should 
 be appointed for the holding of future Conven 
 tions, that it is taking what properly belongs to 
 the legislature; that they should present the 
 question for the legal voters to decide ; and that 
 this Convention is usurping a power that does 
 not properly belong to them, to decide what action 
 may be necessary for the future. Why, Sir, the 
 gentleman, in his resolutions, provides that the 
 legislatures may, by concurrent action, present 
 the question of calling a Convention to the people, 
 whenever, in their opinion, it may be expedient ; 
 and if the people, by a majority of legal votes, 
 decide in favor, then the Convention will be held 
 accordingly. Thus it will be seen, that whatever 
 emergency may arise, the legislature, if necessary, 
 may submit the question for the final action of 
 the people ; while, at the same time, there will be 
 incorporated a provision that, at the expiration of 
 twenty years, without regard to the will of any 
 legislature, and beyond the control of any legisla 
 tive action thereon, the people themselves, inde 
 pendent of any and all other power, will, by their 
 own votes, determine whether there is a necessity 
 for revising or amending the Constitution. 
 
 Then the question is, how shall the people be 
 represented ? I can see no other way in accord 
 ance with the principles of justice, that they can 
 be represented in that Convention, except by a 
 representation from the several towns ; because 
 we have incorporated into the Constitution that 
 every town shall be represented according to the 
 number of inhabitants ; and if the inhabitants or 
 legal voters in those several towns say that they 
 wish them to be represented, why, in the name 
 of common sense, should not every town be 
 represented in forming our fundamental laws for 
 the future ? Is it not the principle of justice that 
 every town shall be represented in that Conven 
 tion ? I ask if we should disfranchise any indi 
 vidual town from being represented where the 
 fundamental law of the Commonwealth is to bo 
 submitted to the whole people ? This matter seems 
 to be a very important matter, and at the same time 
 it appears to be a very simple matter. It appears to 
 me that gentlemen have brought in and thrown a 
 mystification around it, which plain, common 
 sense men can see at once is for a specific object. 
 The question, as it seems to me, is simply this : 
 Shall the people, in their primary capacity, have 
 the right, in 1873, without any legislative action 
 on the subject, to assemble through their dele 
 gates in a Constitutional Convention ? That is 
 the whole matter at issue ; and now, all we want 
 to decide is, how shall they be represented ? It 
 seems to me to be no more than strict equality 
 
348 
 
 CONSTITUTIONAL CONVENTIONS. 
 
 [66th day. 
 
 Monday, 
 
 CROWNINSHIELD HATHAWAY. 
 
 [July 25th. 
 
 and justice that every town in the Common weal th, 
 whether it contains one thousand inhabitants, or 
 one hundred and fifty thousand, shall be repre 
 sented in the Convention to form the organic law. 
 I should not have said anything upon this subject, 
 had it not been that a false impression might go 
 before the Convention that the city of Boston has 
 not an equal representation with the other cities 
 and towns in this Commonwealth, while she has 
 forty- four representatives who are sent here by 
 general ticket, which gives her more power than 
 those towns possess which send one, two, or three 
 representatives, according to their population. 
 
 Mr. CROWNINSIIIELD. I wish to say one 
 word in relation to the remark which has been 
 made by the gentleman from Chelsea, that she has 
 not an equal representation with Boston, in pro 
 portion to her population. That is no answer to 
 what I said. I maintain that the city of Boston 
 has not her full share of representation upon this 
 floor. By the last census, there were one hundred 
 and thirty thousand inhabitants in this city, and 
 she is only entitled to forty- four representatives 
 cut of more than four hundred, being but little 
 more than one-tenth, while she has a great deal 
 more than one-tenth of the population of the 
 Commonwealth. It follows, of course, that she 
 has not a full representation. 
 
 Mr. HATHAWAY, of Freetown. I concur 
 with the gentlemen who have preceded me, in 
 reference to the inalienable rights of individuals 
 to take part and lot in the government of the 
 State under which they may live, whether it be 
 in this or any other State. I maintain that in 
 Rhode Island or here, there should be a repre 
 sentation, equal as is practicable, of the people. 
 I agree, also, with gentlemen who say that our 
 representation in the House of Representatives is 
 not to be an equal representation of the people ; 
 and if this is so, then that the difficulty and " re 
 bellion," (as some characterize it,) in Rhode 
 Island, grew out of the same unjust principle that 
 is incorporated in the proposition which you are 
 about to present to the people as the basis of the 
 House of Representatives in this State. It is a 
 representation of towns, and not an equal, but an 
 unequal representation of the people. Was not 
 that the real difficulty in the Rhode Island case ? 
 And is not the same principle of injustice and in 
 equality involved in the proposition of the gen 
 tleman for Wilbraham for future Conventions, as 
 the delegates are to be chosen by and to represent 
 towns, instead of the people ; and how does his 
 amendment relieve us from that difficulty ? His 
 proposition may not be so excessive and barefaced 
 in its unjust operation, as the Rhode Island ques 
 tion was in Rhode Island ; but you may multiply 
 
 and change the forms as much as you please in 
 reference to the Rhode Island matter, and this 
 matter, and after all, this proposition and the 
 Rhode Island difficulty, both settle down upon 
 the unjust principle that man is not equal with 
 man, but that his political weight in government 
 depends on the accident of his " locality." That 
 his mere locality should make him unequal with 
 his fellow-man of another place, both in the form 
 ation of an organic law, and in the enactment of 
 ordinary statutes. Was not this unjust principle 
 the cause from whence arose all the tribulation, 
 and trouble, and persecution that they experienced 
 in Rhode Island ? Now, Sir, I maintain that the 
 very difficulty and injustice which was involved 
 in the Rhode Island proposition, is involved in 
 these propositions which have been presented, 
 and also in the amendment of the gentleman for 
 Wilbraham, because the representation in our 
 future Conventions is to be by a delegation from 
 the towns, who are to represent the towns, and 
 not the people. You may shift and change the 
 language of the propositions now under discus 
 sion as much as you please, but in all their va 
 ried forms and colors, there is still the came 
 injustice involved in them which was involved 
 in the Rhode Island matter. The same spots 
 on the leopard still remain ; and the color of 
 the Ethiopian s skin, which cannot be changed. 
 There was not an equal representation of man 
 with man in that State ; and there is the same 
 trouble here. I speak with great diffidence in 
 relation to this matter, because gentlemen say 
 that my warmth on this subject carried me away 
 the other day, and it may carry me away again. 
 If that should be the case, I hope gentlemen will 
 do me the justice to believe that I mean no offence, 
 as I meant none then. I intend to discuss every 
 question coolly and deliberately in every discus 
 sion in which I shall take a part ; and I cannot 
 refrain from saying that I used no improper lan 
 guage on that occasion, and none has been, or can 
 be, pointed out. Here, then, is the same great 
 principle involved in this question, which was 
 involved in the Rhode Island question. At the 
 time of the Rhode Island difficulty, I was in part 
 a Rhode Island man. Upon that occasion, I was 
 stigmatized as being a " Dorrite," but the princi 
 ple which I acted upon then, I am yet willing to 
 stand up to and defend, here or elsewhere, when 
 ever it shall be necessary. 
 
 Sir, let us for a moment analyze the proposi 
 tion before the Convention, which has been re 
 ported by the Select Committee. It is, that in 
 1873, you shall have a Convention, and that you 
 may have one at such "other times " as the legis 
 lature shall direct. Not that your legislature 
 
66th day.] 
 
 CONSTITUTIONAL CONVENTIONS. 
 
 349 
 
 Monday,] 
 
 HATHAWAY. 
 
 [July 25th. 
 
 shall have the power hereafter to say that you 
 may or may not have a Convention, in 1873 ; but 
 it is positively provided, by the proposition of the 
 Committee, that in 1873, those who have the 
 right of suffrage in this Commonwealth the 
 voters shall pass upon this question, whether there 
 shall then bo a Convention or not. As to the 
 holding of other Conventions, in " other times," 
 the legislature are to pass upon it. Now, as to the 
 Convention to be held in 1873, I do not perceive 
 any difference between the gentleman s proposi 
 tion, when you analyze it, and the proposition of 
 the Select Committee. I would not refer to the 
 law of 1852, and make that part and parcel as 
 the gentleman for Wilbraham proposes to do of 
 your Constitution, for it is merely a statute law. 
 There are great objections, in my mind, to so 
 doing ; and as I am informed for I was not 
 present the impropriety of incorporating that 
 Act in, and making it a part of, the constitutional 
 law, was ably and clearly stated, the other day, 
 by the gentleman from Cambridge, (Mr. Parker,) 
 and the gentleman from Salem, (Mr. Lord,) that 
 I will not remark any farther upon it, except so 
 far as one provision is concerned. As I under 
 stand the new proposition of the gentleman for 
 Wilbraham, and which he has just now intro 
 duced as a farther amendment to his proposed 
 amendment, he now excludes from it the second 
 section of the law of 1852, for the calling of this 
 Convention ; but if that is not to be excluded, 
 but to be included, as he first proposed in his 
 amendment, I should like to have him tell me, if 
 he can, whether that section of the Act is so plain 
 that " he that runs may read, and understand it." 
 Is he certain that he understands it ^ and can he 
 tell me whether those towns that shall be incor 
 porated from 1870 to 1873 if any shall be in 
 corporated will be entitled to send delegates to 
 the Convention then to be held ? I confess, Sir, 
 that in referring to that section of the Act, I can 
 not tell, for the life of me, whether those towns 
 which have been incorporated since 1850, if they 
 had sent delegates to this body, would or would 
 not have been permitted to be represented, and 
 whether such delegates would have been entitled 
 to seats in this Convention. I presume the mem 
 bers of the Convention will recollect the debate 
 which came up in reference to the admission of 
 the gentleman from Walpole, to a seat here, be 
 cause a portion of the town of Dedham had been 
 taken off and annexed to Walpole. The ques 
 tion there arose on account of the annexation of 
 a small portion of the territory, and a few inhabi 
 tants of Dedham, to Walpole. Suppose that West 
 Roxbury, or any other town that has been inCor- 
 porated since 1850, had sent a delegate here, 
 
 under the statute of 1852, I want the gentleman 
 for Wilbraham to tell me whether it is perfectly 
 clear, from that law, that such delegate would 
 have, and ought to have been accepted, and ad 
 mitted to a seat upon this floor ? But I under 
 stand that this portion of the law is excluded 
 from the gentleman s amendment to his amend 
 ment, and therefore I will not pursue that branch 
 of the subject. Permit me, however, to say that 
 the law of 1852 was very imperfectly drawn ; 
 that it was almost an exact transcript of the law 
 calling the Convention in 1820 ; and in conse 
 quence of the changes in the Constitution as to 
 representation, and made since 1820, that law was 
 not perfectly applicable to our present condition 
 and wants. 
 
 In reference to the remark that fell from the 
 gentleman from Chelsea, in his reply to the gen 
 tleman from Boston, (Mr. Crowniiishield,) that 
 there will be a disfranchisement of some of the 
 towns, so that they will not have their full share 
 of delegates in the Convention of 1873, let me 
 say that, if the town basis which you have agreed 
 upon shall be adopted by the people, there need 
 be but little fear that any of the towns will be dis 
 franchised, or that the small towns will not then 
 have their full share and weight in the formation 
 of the Constitution. The true question is, will 
 will you not then virtually disfranchise the elec 
 tors and voters ? Will you not disfranchise men 
 by your proposed inequality of representation in 
 that Convention r The proposition of the gentle 
 man from Essex, (Mr. Bradford,) disfranchises 
 nobody. Every- body who has the right of suf 
 frage, whether he lives in a small town in the 
 country, or in the city, has an equal right, one 
 with another. It is in consequence of these and 
 other difficulties that have presented themselves 
 to my mind, and because I believe that there 
 should be an equal representation upon this floor, 
 of man with man, instead of a representation by 
 corporations, that I am in favor of the proposition 
 of the gentleman from Essex. 
 
 Another reason is, that I would not, as has 
 been the case in this Commonwealth, make one 
 man s political power forty- four times greater 
 than that of another, who happened to reside in 
 different locality no, nor even double. But, 
 by your present proposition, you give a certain 
 amount of political power to an elector in certain 
 districts and towns in the Commonwealth ; and a 
 different amount, less or more, to another elector, 
 in other districts and towns. I use the word dis 
 tricts because, in my judgment, it was intended 
 by our fathers, when they framed the Constitu 
 tion, that these towns should be districts, for the 
 purpose of choosing representatives, as the scv- 
 
350 
 
 CONSTITUTIONAL CONVENTIONS. 
 
 [66th day. 
 
 Monday,] 
 
 HATHAWAY ALLEN. 
 
 [July 25th. 
 
 eral counties were to be, and have been, districts 
 for the choice of senators. In one case, a man 
 can vote for several representatives, and in an 
 other case he can only vote for one ; and it is just 
 so in choosing your delegates for a Convention ; 
 in some towns each elector may vote for three, in 
 others only for one. Is that in accordance witVi 
 the genius and spirit of our government ? How is 
 it in regard to the executive department of govern 
 ment ? No matter whether I reside in Boston, or in 
 Erving in Lowell, or in Hull when I come to 
 vote for the chief executive officer of the govern 
 ment, my vote counts one, and just as much, no 
 more or less, than that of any other elector. No 
 matter what the locality, the representation and 
 political power of every elector is alike, and equal. 
 The same principle is about to be applied to one 
 branch of your legislature the Senate. No mat 
 ter where a man may be located in the Com 
 monwealth, he votes, man for man, and lias an 
 equal right if he is an elector with every other 
 elector in the Commonwealth. Now, why should 
 you, in choosing representatives to the legisla 
 ture, or delegates to a Convention, to frame an 
 organic law, still retain a principle which gives 
 a man in one locality, three times the political 
 power which he has in another ? The proposition 
 of the gentleman from Essex makes one man 
 equal with another, no matter where he is. It 
 does not do as they did in Rhode Island give 
 a man who lived in one town great political 
 power, and a man who lived in another, very 
 little, if any at all ; and I think that is a good 
 reason why we should adopt the proposition of 
 the gentleman from Essex. The original lieport 
 and resolutions of the Committee, it seems to me, 
 stand well enough, provided the principle of the 
 amendment of the gentleman from E.-SCX shall be 
 incorporated into it, and made part of the resolu 
 tions, so as to give five, eight, or ten I do not 
 care what number, provided the Convention in 
 1873 is not too large delegates from each sena 
 torial district. Then the representation will be 
 perfectly equal; and there will be no disfran- 
 chisement, directly or indirectly, of any man or 
 elector in the Commonwealth. The gentleman 
 from Chelsea talks about the disfranchisement of 
 towns, but let me say that what he terms the dis 
 franchisement of towns, is, to a certain extent, 
 involved in every proposition which we have had 
 before us except the district system because all 
 of those towns which contain less than a thou 
 sand inhabitants are to be disfranchised five years 
 out of ten. They are, if need be, to be taxed 
 every year, but are not to be represented, upon 
 an average, only every other year ; and taxation 
 withoxit representation, or a right to it, when 
 
 taxed, the friends of town representation call dis 
 franchisement. But the proposition of the gentle 
 man from Essex accomplishes all that can be ac 
 complished ; that is, that not a single voter shall be 
 disfranchised upon the occasion of calling a future 
 Convention. Each one and all of the electors are 
 to have equal political power, without regard to 
 towns, cities, or place. Hence, his proposition is 
 more consistent with the principles of a free and 
 equal government than the other, and therefore I 
 go for it. 
 
 Mr. ALLEN, of Worcester. I rise to make a 
 proposition, and not to discuss this question. We 
 all agree that the people of this Commonwealth 
 should be at liberty to call a Convention when 
 ever they see fit ; but it seems to me that the idea 
 that the people will want a Convention again in 
 1873, or at any other fixed period of time what 
 ever, is one that we can hardly entertain. The 
 people will want a Convention whenever the con 
 dition of public affairs and of public sentiment 
 shall require it ; and whether that shall be done at 
 one time or at another time, is something that no 
 person is competent to predict. The people may 
 want a Convention fifteen years from now, and 
 they may have it, and make all the necessary re 
 vision of their Constitution at that time ; and 
 shall they have another in five years afterwards ? 
 Or twenty years hence they may desire a Conven 
 tion, and five years afterwards a state of things 
 may arise which will render it desirable. Who 
 supposed five years ago that a Convention would 
 have been wanted now; but in 1852 or 1853 it 
 was thought very desirable that one should be 
 called. 
 
 The proposition, as it came from the Committee, 
 has been much modified, and gentlemen in all 
 parts of the House intimate a purpose to modify 
 it still farther. Numbers of gentlemen who have 
 not spoken upon this question, have each, I be 
 lieve, their separate propositions to offer. In this 
 state of feeling on the part of the Convention, and 
 believing that the subject is not very well digested 
 believing, also, that it lies before Us in a very 
 crude state I am about to move that it be re 
 committed to a Special Committee ; and in order 
 that no time may be lost, I move that that Com 
 mittee report some digested plan to-morrow morn 
 ing, by which the people, twenty years hence, 
 may have a Convention, or whenever else they 
 please. 
 
 The motion to recommit was agreed to. 
 
 Mr. ALLEN. I beg to say, that having moved 
 this question of reference to a special committee, 
 I desire that I may not be appointed as one of 
 that committee, having other engagements. 
 
 Mr. MORTON, of Taunton. I would suggest 
 
66th day.] 
 
 BANKING, &c. 
 
 351 
 
 Monday,] 
 
 DENTOX WESTON HALLETT HALL. 
 
 [July 25th. 
 
 to the gentleman from Worcester, that the num 
 ber of gentlemen of which the committee is to 
 consist, should be fixed. 
 
 Mr. ALLEN. I believe that that has usually 
 been left to the discretion of the Chair ; but in 
 order to make the matter more definite, I move 
 that the committee consist of seven. 
 
 The PRESIDENT, after deliberation, named 
 the following gentlemen as the Committee : Mr. 
 Hallett, for Wilbraham ; Mr. Crowninshield, of 
 Boston ; Mr. Nayson, of Amesbury ; Mr. Sum- 
 ner, for Marshfield ; Mr. Williams, of Taunton ; 
 Mr. Alvord, for Montague ; and Mr. Simmons, of 
 Hanover. 
 
 Mr. CPvOWNINSHIELD. I ask to be ex 
 cused from serving, as it will be exceedingly in 
 convenient for me to attend to the business of this 
 Committee. 
 
 Excused. 
 
 The PRESIDENT. The Chair, then, will 
 name Mr. Hillard, of Boston. 
 
 Mr. HILLARD. I am in expectation of being 
 summoned into court as a witness, and therefore 
 I beg to be excused. 
 
 The PRESIDENT. Then the Chair will nom 
 inate Mr. Briggs, of Pittsfield. 
 
 Mr. BRIGGS. I am upon two other com 
 mittees, one of them a very important commit 
 tee, which meets this evening. It will hardly 
 be possible for me to attend to this business, and 
 I ask to be excused for that reason. 
 
 Mr. Briggs was excused. 
 
 The PRESIDENT. The Chair will name 
 Mr. Lord, of Salem. 
 
 Mr. LORD. I was about to say that I am 
 upon a committee which is to meet this evening 
 the Committee on Revision ; and I beg to say 
 that I cannot be in two places at once. If I 
 attend to the business of this Committee, I shall 
 be obliged to neglect that of the other. I think 
 I would prefer to be excused. 
 
 Not excused. 
 
 Mr. DENTON, of Chelsea. I move a recon 
 sideration of the vote by which this subject was 
 recommitted. 
 The motion to reconsider was rejected. 
 
 The Special Committee finally stood as follows : 
 Messrs. Hallett, for Wilbraham ; Sumner, for 
 Marshfield ; Williams, of Taunton ; Alvord, for 
 Montague ; Simmons, of Hanover ; Lord, of Sa 
 lem ; and Hazewell, of Concord. 
 
 Orders of the Day. 
 
 On motion of Mr. WESTON, of Duxbury, 
 the Convention proceeded to the consideration of 
 the Orders of the Day, the first question therein 
 being the question of granting leave to the Com 
 
 mittee of the Whole to sit again for the consider 
 ation of the resolves on the subject of justices of 
 the peace. 
 
 The question being taken, leave was granted. 
 
 The resolve granting authority to the Com 
 mittee on Reporting and Printing, and also the 
 resolve on the subject of the Commissions of the 
 Judges were passed over these resolves being in 
 the hands of the printers. 
 
 The Council. 
 
 Mr. HALLETT. I do not intend to detain 
 the Convention by saying a single word upon this 
 subject, but it has been suggested to me from 
 many quarters of the House, that there has never 
 been a fair expression of opinion on the subject of 
 the final passage of the resolves in regard to the 
 Council. I have no feeling myself on the sub 
 ject, but I move a reconsideration of the vote so 
 that the question may be taken by the yeas and 
 nays. 
 
 The motion to reconsider was rejected. 
 
 Banking. 
 
 The Convention next proceeded to the consid 
 eration of the resolves on the subject of Banking, 
 the question being on their final passage. 
 
 Mr. HALL, of Haverhill. I desire to say a 
 few words upon this question, though I very 
 much doubt whether I can compress what I have 
 to say, within the time allowed, under the fifteen 
 minutes rule. I may not have time, under that 
 rule, to say all that I could wish, but I desire to 
 notice one or two points in regard to this ques 
 tion, which it seems to me, have not been no 
 ticed by other gentlemen who have spoken upon 
 the subject. The Convention may not be wil 
 ling to hear debate upon this subject, but it 
 appears to me to be one of those questions upon 
 which the Convention ought not to pass too 
 hastily. I believe this question to be of too 
 much importance to the people, to be passed 
 upon hastily, and put into the Constitution even 
 by gentlemen who intend that this Constitution 
 shall be ratified by the people. 
 
 Now, Sir, I am in favor, as I always have 
 been, of a limited amount of banking capital. I 
 am in favor of that amount of banking capital 
 which the people of the Commonwealth desire in 
 the pursuit of a legitimate business in the com 
 munity, and as far as that capital is seeking a 
 bonafide investment. It would seem, that some 
 fifteen years ago, the great bulk of the banking 
 capital was owned by the Whigs. At that time 
 I had about made up my mind, from what cer 
 tain presses and certain men said, that such was 
 the fact ; but, as I became acquainted with men 
 
352 
 
 BANKING. 
 
 [66th day. 
 
 Monday,] 
 
 HALL STETSON. 
 
 [July 25th. 
 
 and with business, I found that I was mistaken. 
 Sir, this question of banking is not, and never 
 has been, a party question in this Commonwealth. 
 There are Democrats interested in banking capi 
 tal, and Free Soilers also ; and there always have 
 been, although some people may think that it is 
 a mistake. As we find, upon examination, there 
 are gentlemen who own large amounts of bank 
 ing capital in this Commonwealth, who are Dem 
 ocrats gentlemen who are in the management 
 of banks who are Free Soilers and Democrats, so 
 that it is not exactly a party question after all. 
 My friend and colleague from Haverhill, a Free 
 Soiler, every inch of him, (Mr. Hewes,) is presi 
 dent of one of these banks, as respectable a bank 
 as there is in the community. Gentlemen will, 
 therefore, understand, that it is not exactly a 
 party question in the Convention. 
 
 I desire to notice two particular points on this 
 question, first as to the security to the bill- 
 holder 
 
 Mr. STETSON, of Braintree. If the gentle 
 man will allow me to interrupt him, I would like 
 to ask him one question. 
 
 Mr. HALL. The gentleman from Braintree 
 is aware of the existence of the fifteen minutes 
 rule, and that, with interruption, a gentleman can 
 hardly be expected fully to express his thoughts 
 in that time, upon an important subject like this. 
 Mr. STETSON. The gentleman was pro 
 ceeding to state what parties represented the 
 banking interest. I should like to know how 
 many Whigs and how many Democrats are con 
 nected with the bank of which the gentleman 
 from Haverhiil is cashier ? 
 
 Mr. HALL. I suppose I could answer the 
 gentleman, if he is particularly anxious to know 
 from me ; but I suppose he knows already, with 
 out my informing him. I might ask the director 
 (Mr. Stetson) of the Shoe and Leather Dealers 
 Bank, [laughter,] how his corporation was divided 
 in this respect. I spoke of the matter as a gen 
 eral question, and said that some years ago it 
 would seem as though all the banks were owned 
 by one party in the Commonwealth. I say that 
 that is not so ; and my friend, who is a director 
 in the Shoe and Leather Corporation, under 
 stands that perfectly well. 
 
 I was proceeding to say, when interrupted, 
 that there were two points on which I desired to 
 speak one of them a point that my friend from 
 Charlestown labored hard upon first the secu 
 rity to the bill-holder, and secondly, the practi 
 cability or impracticability of a general banking 
 law. I understood the chairman of the Com 
 mittee to which this subject was referred, to say, 
 that we had no law sufficient to secure the bill- 
 
 holder. Now I desire to call attention to that 
 point for a moment ; and, if I am not mistaken, 
 there are some gentlemen present who will find 
 that there is a great deal more law upon that 
 subject already, than they seem to be aware of. 
 I therefore ask attention to four or five short ex 
 tracts from these laws, which go to secure the 
 bill-holder. The first extract to which I shall 
 refer, regards the "loss of capital." 
 
 " If any loss or deficiency of the capital stock 
 shall arise from the mismanagement of the di 
 rectors, the stockholders at the time of such mis 
 management, shall, in their individual capacities, 
 be liable to pay the same. No one shall be liable 
 to pay a sum exceeding the amount of stock 
 held by him." 
 
 This was passed in 1828, and, under this sec 
 tion, gentlemen will see, that when a bank fails, 
 the stockholders are not only liable to the loss of 
 their capital stock, but to a given amount be 
 sides. If a man owns ten shares of bank stock, 
 and the bank fails, he is liable for ten shares 
 more. 
 
 Another section says : 
 
 " The holders of stock in any bank at the time 
 when its charter shall expire, shall be liable, in, 
 their individual or corporate capacities, for the 
 payment or redemption of all bills issued by such 
 bank, in proportion to the stock they may re 
 spectively hold at such dissolution." 
 
 In that section, gentlemen will see that the 
 stockholders of a bank on winding up its charter, 
 are liable in their individual capacity, pro rata, for 
 every bill in circulation. And under this section 
 they are liable for the recovery of damages : 
 
 " Any stockholder of a bank, who shall have 
 been obliged to pay a debt or demand against such 
 bank, may have a bill in equity to recover the 
 proportional parts of such sums as he may have 
 so paid, from the other stockholders." 
 
 A bill-holder, therefore, it will be seen, may 
 sue any one stockholder, and, if he does not ob 
 tain satisfaction from him, may sue any other one. 
 
 Now here is another section as to the liability 
 of stockholders : 
 
 " Any corporation which is, or shall be a stock 
 holder in any bank, shall be liable, in its corpo 
 rate capacity, to pay any loss or deficiency of the 
 stock of such bank, arising from the official mis 
 management of its directors ; and also liable for 
 the payment or redemption of all bills issued by 
 such bank, and which bills shall remain unpaid 
 when its charter shall expire, in the same manner 
 as individual stockholders are liable in their indi 
 vidual capacities." 
 
 "We have the decision of the supreme court to 
 
66tli day.] 
 
 BANKING. 
 
 353 
 
 Monday,] 
 
 HALL. 
 
 [July 25th. 
 
 this effect. Now how is it with these corpora 
 tions ? One gentleman said, the other clay, that 
 a large amount of this bank capital was owned 
 by women and children. That is true in some 
 senses. If he terms two and a half millions a 
 large sum, it is true. More than one-third of the 
 bank capital of the Commonwealth is owned by 
 savings banks, and other corporate institutions 
 precisely the class of owners that the bill-holders 
 on a broken bank would desire. I contend, there 
 fore, that in regard to all these points there is law 
 enough. But there is still another law which was 
 passed in 1819, in regard to the individual liabil 
 ity of stockholders. Here is the provision : 
 
 " The holders of stock in any bank, at the time 
 of its failure, shall be individually liable for all 
 bills of such bank, issued and unpaid, in propor 
 tion to the stock they may respectively hold." 
 
 This is the same provision that was passed in 
 1828, only a little stronger. 
 
 Now it may be said that the stockholders may 
 know something about the condition of a bank, 
 and in anticipation of a failure, may transfer their 
 stock. But we have also a section in regard to 
 this point : 
 
 " If any shareholder, having reasonable belief 
 that such bank is about to fail, shall transfer his 
 shares to avoid individual liability, such transfer 
 shall be void as respects such liability." 
 
 But that did not go quite far enough, and. there 
 is still another law. It is this : 
 
 " If any stockholder in any bank, having rea 
 sonable cause to believe the bank insolvent, shall 
 within six months before the expiration of its 
 charter, transfer the whole or part of his shares, 
 with intent to avoid his liability for the redemp 
 tion of its unpaid circulation, such transfer shall 
 be void, so far as respects such liability." 
 
 Now, Mr. President, it appears to me that we 
 have laws enough upon this subject, and decisions 
 affirming the validity of these various laws, by the 
 supreme court of this Commonwealth, and it ap 
 pears to me that the bill-holder is not in a condi 
 tion to lose anything. 
 
 Now, Sir, the gentleman from Charlestown, 
 (Mr. Frothingham,) read from the Commission 
 ers Report, and I, also, desire to read one or two 
 sections from the same, because that report con 
 tains some very good reading. In the report of 
 1850, from which the gentleman read, the com 
 missioners, after examining the New York bank 
 ing system say : 
 
 " That system, however, has been sustained 
 only by continual resorts to the legislature, to 
 
 modify the laws which regulate it, and it is al 
 ready apprehended that a deficiency will soon 
 exist, in the requisite amount of public stocks for 
 its basis. 
 
 "The system of banking on the security of 
 public stocks, will soon, ice trust, be impracticable 
 in all the States." 
 
 This report is signed by Solomon Lincoln, 
 Joseph S. Cabot, and George S. Boutwell. 
 
 Also, after referring to the system of banking 
 in other countries, these commissioners say : 
 
 " One principle, however, seems to be well 
 settled, that a mixed currency, composed partly 
 of gold and silver, and partly of paper, redeemable 
 in specie, on demand, is the most economical, the 
 most convenient, and the most useful, of any yet 
 devised." 
 
 I have no doubt that this will be considered as 
 good authority upon this subject. 
 
 What farther do the commissioners say, in 
 another report, after having examined the banks 
 for two years ? They say : 
 
 " And first, we remark, that the currency of 
 the Commonwealth, so far as it depends upon its 
 banking institutions, is in a sound and healthy 
 condition. The banks are, in the main, carrying 
 out the objects for which they were created, with 
 fidelity to the public and to stockholders. In 
 most essential particulars, they do, with few ex 
 ceptions, conform to the requirements of the va 
 rious statutes passed for their regulation. Their 
 practical operation has been such, as to be condu 
 cive to the various important interests of the com 
 munity ; and they have generally been managed 
 with so much intelligence and sound judgment, 
 as to render their stock desirable for investment, 
 by a large number of our inhabitants, who, from 
 their position, are obliged to intrust their property, 
 to some extent, to the control of others, for the 
 purpose of procuring from it the income necessary 
 for their support." 
 
 Now, Sir, if these banks are working to carry 
 out the purposes for which they were created 
 and this board of commissioners, composed of 
 men of different parties, say they are if they are 
 working with fidelity for the public good, it ap 
 pears to me that we need not change that system 
 of banking, at the present time. After examin 
 ing, for two years, every bank in the Common 
 wealth, the commissioners say, in winding up : 
 
 " We have desired to exhibit, so far as in our 
 power, the actual condition of the banks, and 
 their influence in providing a currency best 
 adapted to the wants and interests of the people. 
 We propose 110 legislation which shall be vital to 
 the system, believing that its continuance is pre 
 ferable to a change. If we were caUed upon to 
 frame a new system, some alterations of existing 
 provisions of law might seem desirable, other than 
 
354 
 
 BANKING. 
 
 [66th day. 
 
 Monday,] 
 
 HALL KEYES. 
 
 [July 25th. 
 
 those mentioned by us ; yet, as many of our exist 
 ing statutes have been the subjects of judicial 
 interpretation and decision, and have thus been 
 made, to a great extent, certain in their applica 
 tion, we do not feel inclined to recommend essen 
 tial changes which would unsettle the law, and 
 raise new questions for litigation." 
 
 This is the testimony of bank commissioners, 
 composed, as you know, of gentlemen of opposite 
 political sentiments, after a thorough examination 
 of all the banks in the Commonwealth, for a pe 
 riod of two years. 
 
 We have, also, the opinion of the bank com 
 missioners of 1853, which is as follows : 
 
 < The officers having the immediate charge of 
 the institutions were, with the exception of a 
 single individual, sworn or affirmed to the truth 
 of their statements, as authorized by the statute ; 
 and the commissioners take pleasure in stating, 
 that the officers of banks generally have rendered 
 every desirable aid to facilitate the investigations, 
 which have been as thorough and satisfactory as 
 the nature of the case seemed to require. 
 
 " The results of the examinations of the year, 
 embracing institutions in almost every section of 
 the Commonwealth, indicate, with an approxima 
 tion to accuracy, the general condition of the 
 banks of Massachusetts. The general conduct 
 and condition of the banks examined have been, 
 with some qualifications, satisfactory to the com 
 missioners, profitable to stockholders, and useful 
 to the community." 
 
 This report is signed by Solomon Lincoln, Pe 
 ter T. Homer, and Samuel Philips. 
 
 Now, Sir, this does not look as though our 
 banking system was in a very dangerous condi 
 tion, even for the bill-holders. 
 
 Some gentlemen predict a reversion in business, 
 and a probable suspension of specie payments by 
 the banks. "Well, Sir, I see no good reason for 
 this prediction, at present ; my opinion is this : 
 that, as we produce, as a nation, very much more, 
 in proportion, than our indebtedness accumulates, 
 and, probably, shall continue to do so, we need 
 have no fears of a national crisis, such as was ex 
 perienced in 1837 and 1838, but that in the fact 
 I have named, is our safety. And, as we have 
 a permanent board of bank commissioners, con 
 stantly watching the banks, and the Suffolk Bank 
 system, requiring every bank to redeem its bills 
 daily, thereby obliging them to keep at all times 
 prepared to meet their liabilities, together with 
 the personal liability of the stockholders, as I have 
 shown, it appears to me, that there is no danger 
 whatever to be apprehended, so far as our circu 
 lation is concerned. 
 
 The circulation of bank bills is never what it 
 appears to be by the returns of the banks. These 
 returns are made up at the close of business hours 
 
 on given days ; and when the books of a bank 
 shows its circulation to be $100,000, the Suffolk, 
 or some other bank, has redeemed, and has in its 
 vault, $25,000, more or less, entirely out of the 
 hands of the public ; and this is probably true of 
 nearly all the banks in the State, which would 
 reduce the actual circulation at least twenty-five 
 per cent. 
 
 Entertaining this opinion, and these views, I 
 am opposed to changing the system of banking 
 in this Commonwealth, acknowledged, by every 
 body, to be the best in the world. 
 
 [Here the President s hammer fell, the fifteen 
 minutes allowed by the rule to each member to 
 speak, having expired.] 
 
 Mr. KEYES, for Abington. I believe that this 
 question has been pretty well discussed while I 
 have been absent, and probably what I am about 
 to say, may have been said already. But it seems 
 to me this is very much like shutting the door 
 after the horse has run away. I think the gen 
 tleman who last addressed the Convention, spoke 
 very sincerely, and I was rather surprised to hear 
 him, and the gentleman from. Haverhill, bank 
 men both of them, take the grounds they did. 
 It strikes me it is for the interest of the banks 
 themselves, which are now incorporated, to main 
 tain this provision, because it would secure to 
 them, what I understand the gentleman from 
 Boston said yesterday, a monopoly of banking. 
 What is to be the result of this ? The world is 
 not coming to an end yet, or as I once heard it 
 said, by the gentleman from Oxford, the bottom 
 is not going to drop out. Things are to go on in 
 the future, as they have in the past. If an in 
 crease of bank capital has been needed for the 
 last twenty years, it will be needed for the next 
 twenty years to come. Now the question is, shall 
 the men who hold the fifty- four millions of bank 
 capital now incorporated, have a monopoly of 
 the business of banking ? No, Sir. It has been 
 settled that the present general banking law con 
 tains such provisions as will prevent persons 
 taking advantage of it while the special charters 
 exist. The general banking law is good for 
 nothing, practically, alongside of special charters. 
 It was only five years ago that a large portion of 
 the banks came forward, when their charters 
 expired, and had them renewed. Then we passed 
 the Ilubicon. The gate should have been shut 
 down at that time, and a provision should have 
 been made then, under which all the banks should 
 have been compelled to come, as they were in 
 New York, under the provisions of the general 
 banking system. The bank system of New York 
 State is the finest in the world, and nobody that 
 looks into it, but will come to that conclusion. 
 
66th day.] 
 
 BANKING. 
 
 355 
 
 Monday,] 
 
 KEYES. 
 
 [July 25th. 
 
 But it is stated that the system is impracticable, 
 because stocks enough cannot be obtained as a 
 basis to carry it on. The people of Massachusetts 
 will have additional banks from time to time, as 
 long as this system is in existence, and they will 
 not be quiet and let the present banks have a 
 monopoly of the present system. 
 
 Well, Sir, what will be the result ? They will 
 come to the legislature and say, if we must have 
 a general banking law, you must give us a gen 
 eral law that will permit us to bank with as much 
 profit as those specially chartered. They will ask 
 for such a law, and they will get it too ; and then 
 what will be the consequence? Why, all the 
 private individuals in the Commonwealth, who 
 choose, can go to banking with just the same 
 privileges as these banks with special charters ; 
 and the evil, if it be an evil, which now arises 
 from the banks of the Commonwealth being too 
 numerous, will be increased ten fold. If you 
 could do away with the charters of the banks 
 already now in existence, that would place the 
 matter in a different light ; but here you have 
 $54,000,000 of bank capital already in existence, 
 under special charters, which are to exist upon an 
 average for fifteen or sixteen years. About four 
 or five years ago, a very large proportion of the 
 old banks renewed their charters for twenty years. 
 This last year nearly $10,000,000 more of bank 
 capital was chartered for twenty years. This 
 brings the average length of the charters from 
 this time to an average of fifteen or sixteen years ; 
 and if you abolish this system of granting special 
 charters, and authorize no banks to be chartered 
 except under the general banking law now in 
 existence, these banks, with their special charters, 
 will have the whole monopoly of the banking 
 business of the State for fifteen or sixteen years. 
 I tell gentlemen that the people will not stand it. 
 
 As I remarked, the matter of doing away this 
 old system now, is a very different one from com 
 mencing anew. If we were just now commenc 
 ing a banking system for the State, I might be in 
 favor of this resolution, and vote for a general 
 banking law. 
 
 Sir, the gentleman from Oxford has alluded to 
 this State tax upon banks. That gentleman has 
 alluded to the same subject in the same way, 
 several times before, in my presence, in legis 
 lative bodies. Now, Sir, it strikes me that this is 
 the most just of all the taxes imposed by the 
 legislature upon the people of Massachusetts. I 
 know of no other instance where, in proportion 
 to the advantage derived, the tax is so small as 
 this. Why not ? You give me the privilege of 
 issuing my rags to the amount of $200,000, upon 
 which I can get an interest of six per cent., and I 
 
 should be most happy to pay the tax of one per 
 cent. After paying this one per cent, tax, the 
 compensation is more than sufficient to pay 
 me for all the capital I have invested. If men 
 can borrow $20,000 for a few hours, that is all 
 they want. They can then commence their issues, 
 and scatter them over every State in the Union, 
 although it may be, as has been remarked, that 
 they are secured mainly by the notes of hand of 
 the stockholders. In this way the banks are 
 allowed to circulate much more money than they 
 have capital invested, and, after paying the one per 
 cent, what compensation do they receive r Gen 
 tlemen very well know that nearly all the banks 
 in the State are constantly declaring four per 
 cent, semi-annual dividends, or eight per cent, 
 yearly dividends ; and therefore, I say, that the 
 advantage derived from their charters, is much 
 greater than the burden imposed upon them in 
 the shape of a tax. If you could check their far 
 ther increase altogether, that would be one step 
 towards accomplishing the result you are seeking. 
 But you cannot do it, and it seems to me that one 
 per cent, is not enough for the extraordinary 
 privileges you confer upon them. The system 
 under which we live, has now gone too far to 
 make it in your power to check it without in 
 creasing the evil ; and, therefore, for anything I can 
 see, you will have to allow the evil if it be an 
 evil to go on until it remedies itself. Because I 
 believe if we undertake to check the farther in 
 crease of banks, the people will never submit to 
 have these six hundred individuals, of which the 
 gentleman from Oxford (Mr. De Witt) speaks, 
 who own the present bank property, to monop 
 olize the whole banking business of the State for 
 the next fifteen or sixteen years. 
 
 Sir, this system of banking that is carried on, 
 although to a certain extent it increases the wealth 
 of the State, and to that extent the industry of all 
 the people in the State, yet is a system which re 
 sults in gross inequality. It is a system by which 
 a man with $20,000 capital, by means of trading 
 upon the capital which belongs to somebody else, 
 to California or Australia, receives the profits of 
 $500,000, without incurring the risk of but one 
 twenty-fifth part of that sum. I say, therefore, it 
 creates a most extraordinary inequality among 
 people who do business ; but yet I do not complain 
 of the system on that account, because the busi 
 ness, the wealth, and even the extravagance of the 
 people to a certain extent, is an advantage to all, 
 even to the poorer classes of the community. 
 
 But, Sir, I believe the passage of these resolu 
 tions will lead to greater mischief than the pres 
 ent order of things if it be true that the present 
 order of things does lead to mischief. If it 
 
356 
 
 BANKING. 
 
 [6 6 ill day. 
 
 Monday,] 
 
 HOOPER HALL GRISWOLD PLUXKETT. 
 
 [July 25th. 
 
 is dangerous to increase the capital of these 
 banks, it will be increased to a greater extent 
 than under the present system ; because, accord 
 ing to my view of the matter, it will be exceed 
 ingly unjust to allow the banks now in existence 
 to hold a monopoly of all the banking business 
 of the State for the next fifteen or twenty years ; 
 and if they do not hold that monopoly, then 
 there must be general banking laws passed, 
 giving privileges in every way equal to those en 
 joyed by the banks having special charters, so that 
 every-body who chooses can go into the business 
 of banking. I see, therefore, no way of escape 
 from what gentlemen term the evil of the present 
 system, except to allow it to go on until there 
 shall be so many banks established that the busi 
 ness will cease to be profitable, and then the evil 
 will check itself. I hope, therefore, that the re 
 solves will not be adopted. 
 
 [Cries of " Question ! " " Question ! "] 
 Mr. HOOPER, of Fall River. I move to 
 amend by adding to the second resolution the fol 
 lowing : 
 
 Provided, That no note or bill of a less denom 
 ination than ten dollars, shall be issued as cur 
 rency, after the year 1860. 
 
 Mr. EARLE, of Worcester. I rise to a ques 
 tion of order. I submit that this proposition has 
 once been voted down by the Convention, and, 
 therefore, it is not competent for the gentleman to 
 offer it again. 
 
 The PRESIDENT. Such a proposition may 
 have been offered in Committee of the Whole, but 
 not in Convention. 
 
 Mr. HOOPER asked for the yeas and nays 
 upon the adoption of his amendment ; but they 
 were not ordered, one- fifth of the members 
 present not voting therefor. 
 
 The question was taken, and the amendment 
 was disagreed to. 
 
 Mr. HALL, of Haverhill. I do not under 
 stand precisely this rule about limiting debate. I 
 desire to say a few words upon the impractica 
 bility of a general banking law. I ask the Chair 
 whether it will be in order for. me to speak upon 
 that subject ? 
 
 The PRESIDENT. The rule limits the time 
 to be occupied by any speaker upon any one 
 question, to fifteen minutes. The gentleman 
 from Haverhill spoke out his fifteen minutes, and 
 objection was made to his speaking longer. No 
 motion was made for leave to proceed. If such 
 a motion had been made, the Chair would have 
 put the question to the Convention. 
 
 Mr. BROWN, of Douglas. I move that the 
 gentleman have leave to proceed. 
 
 Mr. FROTHINGHAM, of Charlestown. I 
 rise to a point of order. I understand the gentle 
 man from Haverhill, (Mr. Hall,) proposes to ad 
 dress the Convention upon the question of the 
 propriety or impropriety of a general banking law. 
 What has a general banking law to do with the 
 subject before the Convention ? 
 
 The PRESIDENT. It is competent for the 
 Convention to grant leave to speak upon any 
 subject. 
 
 Mr. BROWN, of Medway. The rule limiting 
 debate to fifteen minutes has been adopted by the 
 Convention, and I hope it will be carried out. 
 
 Mr. GRISWOLD, for Erving. I desire to say 
 one word upon this motion. I should be very 
 glad to hear the remarks of the gentleman from 
 Haverhill, but it must be evident that if we grant 
 leave in one case, we must grant leave to every 
 other gentleman in the Convention, who asks it, 
 to speak beyond his time, and the rule at once 
 becomes no rule. If this were a nicely balanced 
 question, upon which we needed more light, per 
 haps I might vote to violate the rule ; but from 
 a vote we have already taken, there can be no 
 doubt as to what will be the final result ; and for 
 this reason, I shall vote to sustain the rule. 
 
 Mr. PLUNKETT, of Adams. I move to strike 
 out the first resolution. 
 
 The resolution was read as follows : 
 
 Resolved, That the legislature shall have no 
 power to pass any act granting any special charter 
 for banking purposes, or any special act to increase 
 the capital stock of any charter bank ; but corpora 
 tions may be formed for such purposes, or the 
 capital stock of charter banks may be increased, 
 under general laws. 
 
 Mr. HALL, of Haverhill. Will it be in order 
 now to speak upon the subject which I indicated 
 a minute ago ? 
 
 The PRESIDENT. The gentleman is entitled 
 to speak fifteen minutes upon the pending ques 
 tion. 
 
 Mr. HALL. This resolve, as I understand it, 
 proposes a change in our banking system. This 
 resolve, which it is now proposed to strike out, 
 provides that " the legislature shall have no 
 power to pass any act granting any special charter 
 for banking purposes, or any special act to in 
 crease the capital stock of any charter bank ; but 
 corporations may be formed for such purposes, or 
 the capital stock of charter banks may be increased 
 under general laws." 
 
 Well, Sir, the chairman of this Committee 
 (Mr. Frothingham) spoke his hour upon this 
 subject, and now he turns and asks what the sub 
 ject of banking laws has to do with the question 
 under consideration. Now it seems to me, that 
 
66th day.] 
 
 BANKING. 
 
 357 
 
 Monday,] 
 
 HALL FROTHIXGHAM. 
 
 [July 25th. 
 
 as the general banking law now in existence was 
 framed by that gentleman himself, and that as it 
 was very theoretically and cautiously drawn by 
 him in 1851, when it passed the legislature, it 
 may have something to do with this question. 
 Now it is proposed to change the whole banking 
 system of the Commomvealth, to conform with 
 that general law ; and it seems to me, therefore, 
 that the question of a general law is the question, 
 and the whole question for consideration in rela 
 tion to this resolution. Yet, after talking an hour 
 upon it, that gentleman now very plainly asks, 
 "what has a general banking law to do with this 
 resolution ? " But, there was one thing I did not 
 exactly understand. This bill passed the legisla 
 ture in 1851, with a Coalition majority of forty- 
 six in the House, and of so many in the Senate 
 that you could not find the other party. And 
 yet, that same legislature, with that same majority, 
 during the same session, passed some forty odd 
 special bank charters, granting about $6,000,000, 
 under the old system after that general law passed. 
 The chairman of this Committee understands all 
 that. The explanation of the matter, as near as I 
 can judge, was about this : The gentleman from 
 Charlestown (Mr. Frothingham) wanted a gen 
 eral banking law, and a large portion of his 
 friends did not object to it so long as they could 
 still continue to get their special charters, under 
 the old system. 
 
 Mr. FROTHINGHAM, (the floor being tem 
 porarily yielded). I rise to make an inquiry. 
 The gentleman from Haverhill, has referred to the 
 granting of special charters in the session of 
 185 1, and he has referred to me as being connected 
 with those proceedings. Now, I ask him to state 
 to this Convention, whether I did not out and 
 out oppose the granting of these special charters ; 
 whether I did not oppose the reissue of the old 
 charters, and if I did, whether his statement is cor 
 rect? 
 
 Mr. HALL, (resuming). The gentleman cer 
 tainly did oppose the granting of these special 
 charters, and I do not say that he did not. I stated 
 that the legislature in 1851, with a Coalition 
 majority of forty-six in the House, and with a 
 majority of so many in the Senate that you could 
 not find the other party, passed acts incorporating 
 banks with $6,000,000 of capital, after they had 
 passed this general banking law. That is what I 
 said, and I repeat it. It is true, and the gentleman 
 from Charlestown knows it. Yet, that gentle 
 man now comes in here and wants to put into 
 the Constitution a provision which would secure 
 a monopoly of all the banking business in the 
 Commonwealth, to these fifty millions of bank 
 capital which is already incorporated, and to the 
 
 persons who hold those charters, for the next 
 twenty years. 
 
 Now, Sir, I caution those gentlemen who want 
 this Constitution ratified, against putting any such 
 provision into the Constitution. Sir, I do not 
 want the Constitution which we shall adopt, to 
 go before the people with any such provision in 
 it. I believe it would do more to induce the 
 people to repudiate it, than any provision that 
 we shall be likely to incorporate. Now, Sir, the 
 gentleman from Charlestown knows my friend 
 from Braintree (Mr. Stetson) knows just as well 
 as I do, that with the present general banking 
 law, the incorporation of new banks which can 
 compete with those in existence, is perfectly im 
 practicable. 
 
 Mr. STETSON, (in his seat). I do not know- 
 it. 
 
 Mr. HALL. Well, Sir, I think I can show 
 the gentleman that it is. In the first place, the 
 statute of 1851 is specific about the stocks you 
 shall be allowed to put in. You may put in 
 United States government stock, which every one 
 knows you cannot buy. You may put in the 
 stocks of the State of New York, which every 
 one knows, is not to be had. Some of it was 
 issued for the purpose of their canal enlargement ; 
 but it was all taken up for her own purposes, 
 llhode Island stock nobody could buy, and I 
 should not want it if I could. 1 tried as treas 
 urer to collect $500 there, and could not. 
 
 The States of Connecticut, Vermont, and New 
 Hampshire are not issuing any stocks. The State 
 of Maine is not issuing any, and they have $200,- 
 000 in their treasury, arising from the sale of their 
 public lands. We might, in this State, derive as 
 much benefit, had a sale been completed last year, 
 of our interest in those lands. Massachusetts 
 has not issued but $200,000 of State stock for 
 the last two years. The towns and cities of the 
 Commonwealth are not hiring money to any 
 amount. If I may be allowed to refer to my 
 own acts, I will say that as treasurer, I sent 
 notices to every city and town of the Common 
 wealth, asking them to hire the money of the 
 State belonging to the school fund, for any term 
 of years from two to ten, at six per cent., and the 
 amount which could be loaned was only $93,000 
 or about $42,000 a year. This was all the money 
 that was wanted by the towns of the Common 
 wealth. They are rich and do not want any 
 money. The State has not issued its scrip to any 
 amount, for several years. Suppose the State 
 should issue its scrip to build a tunnel, or sup 
 pose at the next legislature or some subsequent 
 legislature, the advocates of the tunnel should 
 come in and say to the bank men, give us five 
 
358 
 
 BANKING. 
 
 [66th day. 
 
 Monday,] 
 
 HALL NAYSON DE WITT FROTHIXGHAM. 
 
 [July 25th. 
 
 millions loan, and you will get that amount of 
 State scrip upon which to do banking business. 
 What would it cost? Can you start a bank 
 under it ? My friend from Braiiitreo, (Mr. Stet 
 son,) who understands the science of this matter, 
 said that banking was a science, and I take it for 
 granted that he understands it, because he is a 
 director in a bank that pays large dividends, and 
 has a good reserve besides. Suppose my friend 
 from Braintree wished to start a bank out at his 
 place with a $100,000 capital, I desire to know 
 how he may start it under this general banking 
 law. The gentleman would find, if he enters into 
 a calculation upon this subject, that there would 
 be a difference of three per cent., in round num 
 bers, between starting a bank under the general 
 law, and starting it under the other system. In 
 the first place, the stock to be lodged with the 
 auditor must be " equal to a stock of this State 
 producing six per cent, per annum." 
 
 Now then, you must buy $120,000 to get 
 $100,000 bills, and pay a, premium of six per cent, 
 if issued in dollar bonds, or fifteen per cent, if 
 issued in sterling bonds, payable in London, as I 
 was offered, as treasurer of the Commonwealth, 
 during the last year, the highest price I have 
 named, by a foreign banker, which will make a 
 difference of interest to begin with, of $2,100, 
 to which add the interest on $25,000, which the 
 present system gives you a right to circulate, more 
 than the general law which is $1,500, making 
 $3,600, from which you may deduct the bank 
 tax on three-fourths of the capital, $750, leaving 
 $2,850, yearly difference against him, besides, in 
 the end, the entire loss paid as premium. 
 
 Will he, understanding the science of banking, 
 start a bank under such circumstances ? He will 
 do no such thing. I have stated this matter pre 
 cisely as it exists, and I challenge the gentleman 
 from Braintree, or any other gentleman, to dis 
 prove the statement I have made. I say it is an 
 impracticable thing, the idea of starting a bank 
 under that law. 
 
 Mr. NAYSON, of Amesbury. I wish to ask 
 the gentleman a single question. If the bank of 
 which he is cashier, which was incorporated at the 
 last session of the legislature, did not petition for 
 an increase of capital ? 
 
 Mr. HALL. I believe there was a petition of 
 the-kind presented, but I did not sign it, and had 
 nothing to do with it. But, if such a charter had 
 been granted us, we could have used it, having 
 now a charter that we can circulate upon, to the 
 amount any bank can keep in circulation, of the 
 capital of $500,000, which is entirely a different 
 matter from starting a bank when you want cir 
 culation and can get it only under the provisions 
 
 of the present general banking law. And now, 
 one question. 
 
 Can the general banking law be amended ? 
 
 I have been asked this question many times, 
 by my friends, and my answer is this : it can be 
 amended by extending the limit of stocks for 
 investment, and take railroad stocks and bonds, 
 and real estate ; and when I name these, and 
 other investments, gentlemen say at once, they 
 do not like them as a basis for banking, because 
 they are a fluctuating and doubtful class of secu 
 rities. And if this is true, is it desirable to 
 change our present system for one so full of 
 difficulties ? 
 
 Now I ask gentlemen from all parts of the 
 Commonwealth, to pause and reflect, before 
 voting to deprive yourselves of the privileges 
 enjoyed by your neighbors, unless you pay a 
 difference of three or four per cent., as I have 
 shown, besides losing the premium you must pay 
 to procure public stocks, because when they 
 mature, you only get the face or par value. We 
 have villages growing up in all parts of the 
 Commonwealth, and if they desire banks for the 
 convenience of business, and the investment of 
 surplus capital, by persons preferring this mode 
 of investment, why vote for an untried and 
 impracticable s y stern, that may prevent you 
 attaining the very object which you are so soon 
 likely to need and desire, when we have a system 
 adapted to our wants, and in my opinion, se 
 cure ? 
 
 My impression is, that we should leave this 
 whole subject in the hands of the legislature, and 
 I hope the resolves will not pass. 
 
 Mr. DE WITT, of Oxford. The gentleman for 
 Abington (Mr. Keyes) entirely misunderstood me 
 in the course of his remarks, when he alluded to 
 the position I had taken. I say that the banks 
 here are well managed, and that their notes are 
 perfectly good. I desire to say one word in reply 
 to the gentleman from Boston, (Mr. Schouler,) the 
 other day. He said that this general law was 
 carried through a compromise. I say that you 
 could do nothing under this general law, except 
 by way of this compromise. You can no more 
 do without it, than we could send a pound of 
 Dupont s powder through Shadrach s furnace. 
 [Laughter.] The gentleman speaks of monoply. 
 But the people agreed to give all these various 
 corporations this renewal of their charter. I am 
 a law-abiding man, and I stand by the law, if I 
 can, until it is repealed or modified. 
 
 Mr. DUNCAN, of Williamstown. I move 
 the previous question. 
 
 Mr. FHOTIIINGHAM, of Charlestown. So 
 far as the argument is concerned, I have no objec- 
 
66th day.] BANKING. 
 
 359 
 
 Monday,] YEAS NAYS. 
 
 [July 25th. 
 
 tions to the previous question, though I should be 
 happy to hear any and every objection which 
 might be made to these resolves. I have not 
 spoken to-day in relation to them, but had marked 
 
 Lord, Otis P. 
 Loud, Samuel P. 
 Miller, Seth, Jr. 
 Mixter, Sanuiel 
 Moore, James M. 
 
 Souther, John 
 Stevens, Granville 
 Stevenson, J. Thomas 
 Swain, Alanson 
 Tileston, Edmund P. 
 
 down several things which had been said by my 
 
 Oliver, Henry K. 
 
 Train, Charles R. 
 
 friend from Haverhill, (Mr. Hall,) and the gentle 
 
 Orcutt, Nathan 
 
 Underwood, Orison 
 
 man for Abington, (Mr. Keyes). I should like 
 
 Packer, E. Wing 
 
 Upham, Charles W. 
 
 to have a few minutes to reply to these gentle 
 men, because I really think I could reply to them 
 
 Park, John G. 
 Parker, Samuel D. 
 Perkins, Jonathan C. 
 
 Upton, George B. 
 Walcott, Samuel B. 
 Walker, Samuel 
 
 successfully. I would ask the gentleman to with 
 
 Plunkett, William C. 
 
 Weeks, Cyrus 
 
 draw his demand for the previous question, so as 
 
 Putnam, John A. 
 
 Wetmore, Thomas 
 
 to allow me to make a few remarks. 
 
 Read, James 
 
 Wheeler, William F. 
 
 The previous question was seconded, and the 
 main question ordered. 
 
 Reed, Sampson 
 Sampson, George R. 
 Sargent, John 
 
 White, Benjamin 
 Wilder, Joel 
 Wilkins, John II. 
 
 The PRESIDENT. The question is, first, 
 
 Schoulcr, William 
 
 Winn, Jonathan B. 
 
 upon striking out the first resolution, which reads 
 
 Simonds, John W . 
 
 
 as follows : 
 
 
 
 
 
 NAYS. 
 
 Resolved, That the legislature shall have no 
 power to pass any act, granting any special char 
 
 Adams, Shubael P. 
 Allen, Charles 
 
 Fiske, Emery 
 Fowle, Samuel 
 
 ter for banking purposes, or any special act to 
 increase the capital stock of any chartered bank ; 
 but corporations may be formed for such pur 
 poses, or the capital stock of chartered banks may 
 be increased, under the general laws. 
 
 Allen, James B. 
 Allis, Josiah 
 Bancroft, Alpheus 
 Barrett, Marcus 
 Bennett, Zephaniah 
 
 French, Charles A. 
 French, Samuel 
 Frothingham, R., Jr. 
 Gardner, Johnson 
 Giles, Charles G. 
 
 Mr. HALL, of Haverhill, demanded the yeas 
 and nays, which were ordered. 
 
 Bird, Francis W. 
 Bishop, Henry W. 
 Bliss, Gad O. 
 
 Gooch, Daniel W. 
 Gooding, Leonard 
 Green, Jabez 
 
 The question was taken, and there were yeas, 
 
 Booth, William S. 
 
 Griswold, Whiting 
 
 99 ; nays, 158 as follows : 
 
 Bradford, William J. 
 
 A Hadley, Samuel P. 
 
 
 Breed, Hiram N. 
 
 Hallett, B. F. 
 
 YEAS. 
 
 Bronson, Asa 
 
 Hapgood, Lyman W. 
 
 
 Brown, Adolphus F. 
 
 Hapgood, Seth 
 
 Abbott, Alfred A. Eames, Philip 
 
 Brown, Artemas 
 
 Harmon, Phineas 
 
 Adams, Benjamin P. Easland, Peter 
 
 Brown, Hammond 
 
 Hathaway, Elnathan P. 
 
 Aldrich, P. Emory Farwell, A. G. 
 
 Brown, Hiram C. 
 
 Hawkes, Stephen E. 
 
 Alley, John B. Fay, Sullivan 
 
 Brownell, Frederick 
 
 Haze well, Charles C. 
 
 Aspinwall, William Fowler, Samuel P. 
 
 Brownell, Joseph 
 
 Heath, Ezra, 2d, 
 
 Atwood, David C. Freeman, James M. 
 
 Buck, Asahel 
 
 Hewes, James 
 
 Ayres, Samuel Gardner, Henry J. 
 
 Butler, Benjamin F. 
 
 Hewes, William H. 
 
 Barrows, Joseph Gilbert, Wanton C. 
 
 Case, Isaac 
 
 Hobart, Aaron 
 
 Bartlett, Ilussel Graves, John W. 
 
 Chandler, Amariah 
 
 Hobart, Henry 
 
 Beal, John Hale, Artemas 
 
 Chapin, Daniel E. 
 
 Holder, Nathaniel 
 
 Bell, Luther V. Hall, Charles B. 
 
 Chapin, Henry 
 
 Hood, George 
 
 Bennett, W r illiam, Jr. Hammond, A. B. 
 
 Childs, Josiah 
 
 Hooper, Foster 
 
 Bigelow, Edward B. Hay den, Isaac 
 
 Clark, Henry 
 
 Hoyt, Henry K, 
 
 Brewstcr, Osmyn Hayward, George 
 
 Clark, Ransom 
 
 Huntington, Charles P, 
 
 Brinley, Francis Hersey, Henry 
 
 Cleverly, William 
 
 Hurlbut, Moses C. 
 
 Briggs, George N. Hillard, George S. 
 
 Cole, Lansing J. 
 
 Ide, Abijah M., Jr. 
 
 Bullock, Ruius. Hinsdale, William 
 
 Cole, Sumner 
 
 Jacobs, John 
 
 Cogswell, Nathaniel Hopkinson, Thomas 
 
 Cooledge, Henry F. 
 
 Kendall, Isaac 
 
 Conkey, Ithamar Hubbard, William J. 
 
 Crane, George B. 
 
 Kimball, Joseph 
 
 Cook, Charles E. Hunt, William 
 
 Cressy, Oliver S. 
 
 Knight, Jefferson 
 
 Copeland, Benjamin F. Hurlburt, Samuel A. 
 
 Cross, Joseph W. 
 
 Knowlton, William H. 
 
 Crockett, George W. Jackson, Samuel 
 
 Cushman, Thomas 
 
 Knox, Albeit 
 
 Crosby, Leander Jenkins, John 
 
 Dean, Silas 
 
 Ladd, Gardner P. 
 
 Crowell, Seth Jenks, Samuel H. 
 
 Deiiton, Augustus 
 
 Lawrence, Luther 
 
 Crowninshield, F. B. Kellogg, Giles C. 
 
 DeWitt, Alexander 
 
 Lawton, Job G., Jr. 
 
 Curtis, Wilber Keyes, Edward L. 
 
 Duncan, Samuel 
 
 Leland, Alden 
 
 Davis, John Knight, Hiram 
 
 Dunham, Bradish 
 
 Littlefield, Tristram 
 
 Davis, Solomon Knight, Joseph 
 
 Durgin, John M. 
 
 Loomis, E. Justin 
 
 Dawes, Henry L. Kuhn, George H; 
 
 Earle, John M. 
 
 Marvin, Abijah P. 
 
 Deming, Elijah S. Lincoln, Abishai 
 
 Edwards, Elisha 
 
 Merritt, Simeon 
 
 Denison, Hiram S. Lincoln, F. W., Jr. 
 
 Edwards, Samuel 
 
 Monroe, James L. 
 
360 
 
 BANKING. [66th day. 
 
 Monday,] 
 
 NAYS ABSENT WESTON LORD. [July 25th. 
 
 Morton, Elbridge G. 
 
 Sprague, Melzar Gale, Luther Paige, James W. 
 
 Morton, Marcus 
 
 Spooner, Samuel W. 
 
 Gates, Elbridge Paine, Benjamin 
 
 Morton, Marcus, Jr. 
 
 Stetson, Caleb 
 
 Gilbert, Washington Paine, Henry 
 
 Nash, Hiram 
 
 Stevens, Joseph L., Jr. 
 
 Giles, Joel Parker, Adolphus G. 
 
 Nayson, Jonathan 
 
 Stevens, William 
 
 Gould, Robert Parker, Joel 
 
 Newman, Charles 
 
 Stiles, Gideon 
 
 Goulding, Dalton Parris, Jonathan 
 
 Nichols, William 
 
 Sumner, Increase 
 
 Goulding, Jason Parsons, Samuel C. 
 
 Nute, Andrew T. 
 
 Taft, Arnold 
 
 Gray, John C. Parsons, Thomas A. 
 
 Orne, Benjamin S. 
 
 Thayer, Willard, 2d, 
 
 Greene, William B. Partridge, John 
 
 Osgood, Charles 
 
 Thomas, John W. 
 
 Greenleaf, Simon Payson, Thomas E. 
 
 Peabody, Nathaniel 
 
 Tilton, Horatio W. 
 
 Griswold, Josiah W. Peabody, George 
 
 Pease, Jeremiah, Jr. 
 
 Turner, David 
 
 Hale, Nathan Phinney, Silvanus B. 
 
 Penniman, John 
 
 Turner, David P. 
 
 Haskell, George Pomroy, Jeremiah 
 
 Perkins, Daniel A. 
 
 Tyler, William 
 
 Haskins, William Powers, Peter 
 
 Perkins, Jesse 
 
 Viles, Joel 
 
 Heard, Charles Preston, Jonathan 
 
 Perkins, Noah C. 
 
 Yinton, George A. 
 
 Henry, Samuel Prince, F. O. 
 
 Phelps, Charles 
 
 Wallis, Freeland 
 
 Heywood, Levi Putnam, George 
 
 Pierce, Henry 
 
 Walker, Amasa 
 
 Hobbs, Edwin Richards, Luther 
 
 Pool, James M. 
 
 \Vard, Andrew H. 
 
 Houghton, Samuel Richardson, Nathan 
 
 Rantoul, Robert 
 
 Warner, Samuel, Jr. 
 
 Howard, Martin Rockwell, Julius 
 
 Rawson, Silas 
 
 W r aters, Asa H. 
 
 Howland, Abraham H. Rockwood, Joseph M. 
 
 Rice, David 
 
 Weston, Gershom, B. 
 
 Hunt, Charles E. Ross, David S. 
 
 Richardson, Daniel 
 
 White, George 
 
 Huntington, Asahel Sherman, Charles 
 
 Richardson, Samuel H. 
 
 W r ilbur, Daniel 
 
 Huntington, George H. Sikes, Chester 
 
 Ring, Elkanah, Jr. 
 
 Wilbur, Joseph 
 
 Hyde, Benjamin D. Sleeper, John S. 
 
 Rogers, John 
 
 Williams, Henry 
 
 James, William Stacy, Eben H. 
 
 Royce, James C. 
 
 Williams, J. B. 
 
 Johnson, John Stevens, Charles G. 
 
 Sanderson, Amasa 
 
 Wilson, Willard 
 
 Kellogg, Martin R. Storrow, Charles S. 
 
 Sanderson, Chester 
 
 Winslow, Levi M. 
 
 Kingman, Joseph Strong, Alfred L. 
 
 Sheldon, Luther 
 
 Wood, Charles C. 
 
 Kinsman, Henry W. Stutson, William 
 
 Sherril, John 
 
 Wood, Nathaniel 
 
 Knowlton, Charles L. Sumner, Charles 
 
 Simmons, Perez 
 
 Wood, Otis 
 
 Krtowlton, J. S. C. Taber, Isaac C. 
 
 Smith, Matthew 
 
 Wright, Ezekiel 
 
 Ladd, John S. Talbot, Thomas 
 
 
 
 Langdon, Wilber C. Taylor, Ralph 
 
 ABSENT. 
 
 Little, Otis Thayer, Joseph 
 
 Abbott, Josiah G. 
 Allen, Joel C. 
 Allen, Parsons 
 Alvord, D. W. 
 Andrews, Robert 
 Appleton, William 
 Austin, George 
 Baker, Hillel 
 Ballard, Alvah 
 Ball, George S. 
 Banks, Nath l P., Jr. 
 Bartlett, Sidney 
 Bates, Eliakim A. 
 Bates, Moses, Jr. 
 
 Choate, Rufus 
 Churchill, J. McKean 
 Clark, Salah 
 Clarke, Alpheus B. 
 Clarke, Stillman 
 Coggin, Jacob 
 Crittenden, Simeon 
 Cummings, Joseph 
 Cushman, Henry W. 
 Cutler, Simeon N. 
 Dana, Richard H., Jr. 
 Davis, Charles G. 
 Davis, Ebenezer 
 Davis, Isaac 
 
 Livermore, Isaac Thompson, Charles 
 Lotlirop, Samuel Iv. Tilton, Abraham 
 Lowell, John A. Tower, Ephruim 
 Marble, William P. Tyler, John S. 
 Marcy, Laban Wales, Bradford L. 
 Marvin, Theophihis R. W r allace, Frederick T. 
 Mason, Charles Warner, Marshal 
 Meader, Reuben Whitney, Daniel S. 
 Morey, George Whitney, James S. 
 Morss, Joseph B. Wilkinson, Ezra 
 Morton, William S. Wilson, Henry 
 Norton, Alfred Wilson, Milo 
 Noyes, Daniel Wood, William H. 
 Ober, Joseph E. Woods, Josiah B. 
 
 Beach, Erasmus D. 
 
 Davis, Robert T. 
 
 Absent and not voting, 162. 
 
 Beebe, James M. 
 
 Day, Gilman 
 
 
 Bigelow, Jacob 
 
 Dehon, William 
 
 So the motion was not agreed to. 
 
 Blagden, George "VV. 
 
 Doane, James C. 
 
 The resolves were then ordered to their final 
 
 Bliss, William C. 
 Boutwell, George S. 
 
 Dorman, Moses 
 Easton, James, 2d, 
 
 passage, by a vote of 108 ayes to 67 noes. 
 
 Boutwell, Sewell 
 
 Eaton, Calvin D. 
 
 Termination of Debate* 
 
 Bradbury, Ebenezer 
 Braman, Milton P. 
 
 Eaton, Lilley 
 Ely, Homer 
 
 Mr. WESTON, of Duxbury. I move that 
 
 Brown, Alpheus R. 
 
 Ely, Joseph M. 
 
 debate cease on the resolves upon the subject of 
 
 Bryant, Patrick 
 
 Eustis, William T. 
 
 the election of justices of the peace, at five min 
 
 Bullen, Amos H. 
 
 Fellows, James K. 
 
 utes before two o clock. 
 
 Bumpus Cephas C. 
 Burlingame, Anson 
 Cady, Henry 
 
 Fisk, Lvman 
 Fitch, Ezekiel W. 
 Foster, Aaron 
 
 Mr. LORD, of Salem. Upon a question of 
 such magnitude, and it being uncertain at what 
 
 Carter, Timothy W. 
 
 Foster, Abram 
 
 time we shall go into Committee, I ask that the 
 
 Caruthers, William 
 
 French, Charles H. 
 
 question be decided by yeas and nays. 
 
 Chapin, Chester W. 
 
 French, Rodney 
 
 Mr. GRISWOLD, for Erving. This question 
 
66th day.] 
 
 JUSTICES OF THE PEACE, &c. 
 
 361 
 
 Monday," 
 
 HALLETT BISHOP. 
 
 [July 25th. 
 
 has already been before the Committee of the 
 Whole, and has been pretty well discussed. It is 
 the desire of the chairman of the Committee that 
 the matter should be taken up now, as he desires 
 to leave this afternoon. 
 
 Mr. LORD. I have no objection to taking up 
 the question now, but my objection is to saying 
 beforehand, that a matter shall not be discussed 
 at all. 
 
 Mr. WESTON. I will withdraw the motion I 
 made. 
 
 Appointment. 
 
 The PRESIDENT. The Chair will announce 
 the appointment of Mr. Upton, of Boston, as a 
 member of the Committee to whom the subject 
 of Future Amendments to the Constitution has 
 been committed, in the place of Mr. Hazewell, of 
 Concord, who is excused from serving. 
 
 Election of Justices of the Peace. 
 
 On motion of Mr. WESTON, of Duxbury, 
 the Convention resolved itself into 
 
 COMMITTEE OF THE WHOLE, 
 
 Mr. Morton, of Andover, in the chair, upon the 
 subject of the election of justices of the peace. 
 The pending question being on the adoption 
 of the amendment proposed by Mr. Hallett, to 
 insert, after the word "shall," the words "not 
 extend to hearing and trying of causes, or the is 
 suing of warrants in criminal cases." 
 
 The amendment was adopted. 
 
 Mr. HALLETT. I wish to suggest another 
 amendment, which seems to me to be proper to 
 carry out what now exists. I understand the 
 third proposition has been stricken out, relating to 
 justices of the quorum. It is obvious that you 
 must have them, or else you must call upon other 
 justices to swear persons out of prison. I move, 
 therefore, to strike out the line, "there shall be 
 two classes of justices," &c., and also to strike 
 out the word "who," in the second paragraph, so 
 that it will read, "trial justices shall be elected," 
 &c., instead of "trial justices, who shall be elect 
 ed;" and in the second paragraph, it will read, 
 "justices of the peace shall be appointed by the 
 Governor and Council, for the term of seven 
 years," &c. 
 
 Mr. BISHOP, of Lenox. The amendments 
 proposed are a departure, in a good degree, from 
 the Report of the Committee. The Committee, 
 in the first place, reported in favor of the election 
 of the justices of the peace ; and for the reason 
 that these offices are local, in some sense, and 
 would be chosen in the towns where the individ 
 uals called upon to make the choice would under- 
 
 24 3 
 
 stand better their just qualifications, than any 
 other power. Then it was proposed that after the 
 election should have been made, after provision 
 was made for their election and for the tenure 
 of their office, that the legislature should have 
 the farther control over this matter, that they 
 should just specify the number to be chosen and 
 determine upon the grade ; or, in other words, 
 whether there should be justices of the peace of 
 two distinct grades ; that they should determine 
 the classification of these officers. 
 
 Now, Mr. Chairman, I regard it as proper that 
 this matter should be left to the legislature ; that 
 it should not be fixed unalterably by any consti 
 tutional provision. I think we go far enough 
 when we provide for the election of justices of the 
 peace, and when we determine their tenure. The 
 legislature should determine their number ; and 
 if it is necessary to fix a classification, the legisla 
 ture should determine that classification. It is 
 proposed by the amendment reported by the 
 Committee, that there be a specific number, to be 
 ascertained, in the first place, by the number of 
 towns, and in the second place, by the number 
 of inhabitants ; each town to elect a justice of the 
 peace, and a justice to be elected for every addi 
 tional two thousand inhabitants. That may be 
 convenient. I see no very serious objection to it ; 
 but, still, in many places, most unquestionably, a 
 fewer number of justices than that would sub 
 serve the purposes of the community. And in 
 many places there might be required a larger 
 number than that. In many places there is very 
 little litigation, and they would not have occasion 
 for the services of a justice of the peace very often, 
 and perhaps not once in a year, and that, too, in 
 a town where there is a great number of inhabi 
 tants. In other places there might be a great deal 
 of litigation, and a larger number of justices might 
 be required. Now, that this matter should be 
 left for the legislature to determine, we regarded 
 as reasonable. 
 
 In regard to grades, we thought proper that 
 the subject should be left to the legislature. I 
 know of but two grades of justices of the peace. 
 I mean by justices of the peace, those officers 
 who have a right to hold a court, and who are 
 authorized to determine controversies between 
 individuals, or between individuals on one side 
 and the State upon the other. Those two classes 
 are, first, justices of the quorum ; second, the 
 ordinary justices of the peace. In this Common 
 wealth, the class called justices of the quorum 
 has been maintained ever since the establishment 
 of the Commonwealth. Whether it be necessary 
 to retain the distinction any longer, it will be 
 proper for the legislature to determine, and for 
 
3G2 
 
 JUSTICES OF THE PEACE. 
 
 [66th day. 
 
 Monday,] 
 
 BISHOP. 
 
 [July 25th. 
 
 this reason. Their introduction was a matter of 
 necessity originally. There were a great many 
 duties assigned to justices of the peace ; that offi 
 cer was appointed in England by the crown. 
 The justices became very numerous, and it be 
 came convenient, if not necessary, that important, 
 arduous, difficult, and perplexing duties should 
 be assigned to these officers ; and a higher grade 
 of justices was called for, of men somewhat 
 acquainted with the laws, men of sound judg 
 ment, and when perplexing questions were pre 
 sented for the decision of two or more of the 
 justices, one or more of this higher grade of jus 
 tices was selected, to be associated with the ordi 
 nary justices, and, by that mode, sometimes diffi 
 cult questions were settled without a resort to 
 the higher tribunals, and duties difficult of exe 
 cution were performed by this court. Now, 
 whether this distinction is necessary, I cannot de 
 termine. The Committee regarded, that if a 
 different class from the ordinary justices was nec 
 essary, the legislature should have the right to 
 create them ; or, if they were in existence, to 
 continue them. 
 
 It is unquestionably true, that these officers 
 perform duties that never were originally assigned 
 to them. They were, originally, the conservators 
 of the peace. They had little to do, and indeed 
 nothing to do with acts merely ministerial, unless 
 those acts were incident to the discharge of their 
 main duty. They were anciently chosen by the 
 people, or by the freeholders convened ty the 
 sheriffs. They exercised nothing but criminal 
 jurisdiction, and I believe that in England to 
 this very day, they exercise no civil jurisdiction ; 
 that is, they try no civil causes. But there have 
 been duties devolved upon this class of officers, 
 which have rendered their multiplication almost 
 necessary, and the greater part of their duties 
 have become ministerial and administrative ; and 
 that, I apprehend, has occasioned the difficulties 
 of which there has been so much complaint. 
 
 Now justices of the peace and I wish to re 
 tain that name, for if officers of another charac 
 ter are to be created, if commissioners are to be 
 appointed to execute merely ministerial or ad 
 ministrative duties, I choose that they should 
 receive the right appellation justices of the peace 
 are judicial officers ; all justices of the peace, by 
 the very force of the term, are judicial officers. 
 There are justices of the court of the king s 
 bench, justices of the court of common pleas, of 
 the supreme judicial court, and a variety of tri 
 bunals administered by individuals denominated 
 justices ; and the term implies a judicial power. 
 
 Now that has been the great difficulty, and the j 
 subject of complaint ; it is the multiplication of | 
 
 justices of the peace to such an extent, that it 
 became, or was regarded as necessary, some few 
 years since, to create a distinct class of justices 
 called trial justices ; and to them was assigned 
 all the judicial duties proper ; and that is a rea 
 son for not making the proper distinction. Jus 
 tices of the peace not only exercise judicial 
 power, but they exercise an immense number of 
 ministerial powers ; and the ministerial duties 
 which have been devolved upon them, have been 
 the occasion of their multiplication. 
 
 A justice of the peace is desired in a commu 
 nity where there is no litigation at all ; and an 
 application is made for his appointment. It is 
 contemplated that he will exercise only certain 
 specific duties, that he will act, not as a judicial, 
 but as a merely ministerial officer. No litigation 
 whatever occurs in the community from which 
 proceeds the application for his appointment as a 
 justice of the peace ; and he is appointed a justice 
 of the peace, for what r To take the acknowl 
 edgment of deeds ; for in every community where 
 there is any business transacted, there are convey 
 ances of real estate, and an officer authorized by 
 law to take an acknowledgment of deeds is neces 
 sary. He is appointed for another purpose in 
 this community : to issue appraisers warrants, to 
 appraise the inventory of deceased persons, to 
 administer a great variety of oaths which are 
 required to be administered to individuals assum 
 ing trusts. This individual is appointed for that 
 purpose. He never contemplates exercising any 
 judicial powers ; and it is not contemplated by 
 those who solicited his appointment, that he 
 shall sit in any civil or criminal case whatever ; 
 and the commission is granted for no other pur 
 pose in the world than for purposes of conven 
 ience, that he may perform those ministerial acts 
 which the convenience of the neighborhood re 
 quire. In that way the justices of the peace have 
 been multiplied ; in that way justices of the peace 
 have been created who were not competent for 
 the appropriate duties of justices, the holding of 
 courts and the trying of criminal and civil causes. 
 Neither the legislature nor the executive, nor any 
 body else is to blame for the multiplication of 
 these justices, and for the difficulties which these 
 frequent appointments have created ; for a justice 
 of the peace, when once appointed, is compelled 
 by the Constitution and by his oath, not only to 
 perform those duties for which his appointment 
 was sought, but to perform other duties. His 
 commission directs him to keep the peace ; he is 
 denominated as a person assigned to keep the 
 peace ; and if a complaint is made to him, it is not 
 for him to determine whether he will receive that 
 complaint and issue a warrant upon it or not ; 
 
66th day.] 
 
 JUSTICES OF THE PEACE, &c. 
 
 363 
 
 Monday,] 
 
 BISHOP HALLETT LORD GUISWOLD FAY. 
 
 [July 25th. 
 
 but he is bound by his oath, and by the Consti 
 tution, and by the trust which he has assumed, 
 to issue his warrant ; and however incompetent 
 he may be to try any question brought before 
 him, however difficult the questions which may 
 arise in the course of that trial, he is bound to 
 proceed with the trial ; and great complaints have 
 been made in consequence of that matter. 
 
 Now, the Committee propose that the legisla 
 ture shall designate the number of justices to be 
 appointed ; that the legislature shall determine 
 their classification, because the number may vary 
 from time to time ; and I regard it as improper, 
 or at least as unwise, to fix by the Constitution 
 any definite number to say that no greater num 
 ber than such as is prescribed, shall be appointed. 
 
 [The time allotted under the rule, expired.] 
 
 SEVERAL MEMBERS. Go on ! Go on ! 
 
 Mr. BISHOP. I am opposed to special privi 
 leges. If there is a general rule I shall abide by 
 it. 
 
 The question was then taken on the amendment 
 proposed by the gentleman for Wilbraham, (Mr. 
 Hallett,) and it was agreed to. 
 
 Mr. HALLETT. I desire to make an addi 
 tional amendment to the second proposition, by 
 inserting after the words "justices of the peace" 
 the words " justices of the peace and the quorum, 
 justices throughout the Commonwealth, and com 
 missioners to qualify civil officers," shall be ap 
 pointed, &c. 
 
 Mr. LORD, of Salem. I would ask "the dele 
 gate representing Wilbraham, whether he has 
 observed that the same resolution provides that 
 trial justices shall have the same jurisdiction, 
 powers, and duties, that are now exercised by 
 justices of the peace, justices of the quorum, and 
 commissioners to qualify civil officers ; and if he 
 has observed that, I would inquire whether the 
 change which he has proposed does not involve 
 the necessity of striking out a part of the first 
 resolution ? 
 
 Mr. GRISWOLD, for Erving. I would ask 
 the gentleman from Salem if there is any objec 
 tion to that if it will not give them the same 
 jurisdiction ? 
 
 Mr. LORD. I should have objection to the 
 multiplication of justices of the quorum and jus 
 tices to qualify civil officers. I think the number 
 specified as trial justices is enough for all pur 
 poses. I should have had objection to the amend 
 ment of the gentleman for Wilbraham, which 
 was adopted ; for I think it was hardly understood 
 by the Convention, when the question was taken, 
 what it was that they were adopting. I desire 
 to call the attention of the gentleman to it/ to see 
 whether he intends to have these officers provided 
 
 for in the first section. I do not mean to enter 
 into any argument on the subject at all. 
 
 Mr. GRISWOLD. The objection which is 
 raised bv the gentleman from Salem is valid to 
 this extent : it does multiply the number of offi 
 cers who would have jurisdiction upon the sub 
 jects that justices of the quorum and commission 
 ers to qualify civil officers have. If we preserve 
 these officers, I see no objection to striking out 
 the words "justices of the quorum and commis 
 sioners to qualify civil officers " from the first 
 section, inasmuch as it is comprised in the other 
 amendment, and limiting the jurisdiction of trial 
 justices to the jurisdiction which justices of the 
 peace have. At the proper time I will move to 
 strike out those words which I have indicated. 
 
 The question being then taken on the amend 
 ment of Mr. Hallett, as modified, no quorum 
 voted. 
 
 Mr. EARLE moved that the Committee rise, 
 and report to the Convention that no quorum 
 was present ; which was agreed to, and the Com 
 mittee accordingly rose. 
 
 IX CONVENTION. 
 
 The President having resumed the chair, the 
 chairman, Mr. Morton, of Andover, reported that 
 the Committee of the Whole had had under con 
 sideration the subject of the election of justices of 
 the peace, and had made some progress therein, 
 but had come to no conclusion thereon, and find 
 ing themselves without a quorum, had instructed 
 him to report that fact to the Convention. 
 
 On motion by Mr. EARLE, the Convention 
 then adjourned until three o clock, P. M. 
 
 AFTERNOON SESSION. 
 
 The Convention reassembled at three o clock, 
 P.M. 
 
 Leave of Absence. 
 
 Mr. FAY, of Southborough, from the Com 
 mittee on Leave of Absence, reported that leave 
 of absence for the remainder of the session be 
 granted to Mr. Henry, of Prescott, and Mr. Gale, 
 of Heath. 
 
 The question being taken on the adoption of 
 the Report, it was decided in the affirmative. 
 
 Justices of the Peace. 
 
 On motion of Mr. BUTLER, of Lowell, the 
 Committee of the Whole was discharged from the 
 farther consideration of the resolves concerning 
 the election of justices of the peace. 
 
 On motion of Mr. BUTLER, of Lowell, the 
 Convention proceeded to the consideration of that 
 
364 
 
 FIFTEEN MINUTES RULE, &c. 
 
 [66th day. 
 
 Monday/ 
 
 BUTLER LOUD WOOD. 
 
 [July 25th. 
 
 item on the Orders of the Day relating to the sub 
 ject of the 
 
 Commissions of Judges. 
 The resolve was read, as follows : 
 
 Resolved, That all judicial commissions which 
 shall issue to any person from and after the first 
 day of August, in the year one thousand eight 
 hundred and fifty- three, shall confer no greater 
 tenure of office than the term of ten years. 
 
 Mr. BUTLER moved to amend by inserting 
 the tenth day of August instead of the first. 
 
 The amendment was agreed to, and the resolve 
 was ordered to a second reading. 
 
 Fifteen Minutes Rule. 
 
 Mr. LORD, of Salem, moved that the rule by 
 which speeches are limited to fifteen minutes be 
 rescinded. 
 
 Mr. LORD. I make this motion, Sir, as a 
 matter of duty, not supposing that it will prevail. 
 But, Sir, I feel bound to do it, from several cir 
 cumstances. Last Saturday a subject was report 
 ed to this Convention, or considered in Commit 
 tee of the Whole. The chairman of the Commit 
 tee from which the report was made, rose and 
 addressed the Convention one hour on the subject. 
 My friend from Boston got up and talked for three 
 or four minutes, not against the resolve at all. 
 Immediately the gentleman from Fall River rose, 
 and addressed the Convention for half an hour ; 
 thereupon the gentleman from Braintree occupied 
 his half hour, and the gentleman from Melrose 
 another, all 011 the same side. These remarks 
 embraced the whole subject of banking. And 
 there is not a gentleman who knows anything 
 about the subject, but who knows that the chair 
 man of the Committee has an exceedingly narrow 
 space in which to explain his views. The subject 
 came up this morning, and a gentleman com 
 menced to speak in opposition to the proposition ; 
 he was, however, restricted to fifteen minutes, 
 and was obliged to get a friend to move an 
 amendment, so as to enable him to continue his 
 remarks, under the technicality of having a new 
 question to speak to. Now, such shifts as these 
 are certainly not dignified. Well, Sir, we have 
 on the calendar the subject of the Bill of Rights, 
 and the chairman of the Committee on that 
 subject, I know, cannot present his views within 
 fifteen minutes. Could any other gentleman do 
 so ? Here, Sir, we have the subject of justices of 
 the peace, and the chairman of the Committee 
 on that subject got up, but had not entered upon 
 the subject ; and when he had exhausted half an 
 hour, he was interrupted ; but, being excessively 
 
 democratic, he said he did not ask any special 
 privileges, and sat down. Now, I suppose there 
 are gentlemen here who desire to speak on the 
 subject of justices of the peace ; but every one 
 knows that no man can in fifteen minutes explain 
 his views ; he may, it is true, make a suggestion, 
 but it is impossible for him to discuss it. No 
 man can within the time limited by the rule that 
 is now in force. And, I suppose, no man would 
 undertake to discuss the subject without having 
 time enough afforded him to state his premises, 
 even without enforcing them in the slightest de 
 gree by arguments or illustrations, and this in 
 relation to a subject possessing so many ramifica 
 tions. 
 
 Now, Sir, I have no objection at all to stopping 
 the work of the Convention just as soon as gentle 
 men please, but my objection is to making impor 
 tant changes in the Constitution, without allow 
 ing any gentleman time enough, even, to state his 
 objections. I have no desire to protract the session 
 of this Convention ; and, if gentlemen will aban 
 don their attempts to change the Constitution 
 farther if gentlemen will abandon their attempt 
 to change the Constitution in regard to this sub 
 ject of justices of the peace a subject which I 
 think requires reform more than any other ; but, 
 so long as important changes are intended, and 
 we are bound to act on those changes, it seems to 
 me we ought, at least, to have time enough to 
 state our reasons for advocating or opposing such 
 changes. 
 
 It is for these reasons that I ask that the rule 
 shall be rescinded, because I know that no man 
 can discuss the subjects submitted. 
 
 Mr. WOOD, of Fitchburg. I hope, Mr. Pres 
 ident, that the rule will not be rescinded. I have 
 been here from the beginning of the session of 
 the Convention until this late period ; and I have 
 been compelled to listen to a great many long 
 speeches, which I thought were wholly unneces 
 sary, until I have become heartily sick of a certain 
 vote which we passed here, that all that was said 
 in this Convention should be reported and handed 
 down to posterity in the records of this Conven 
 tion. I think that order has made more speechi 
 fying, and has caused us to spend a great deal 
 more time than we otherwise should, the object 
 being, on the part of speakers, as it seems to me, 
 to perpetuate their names, more than it was to get 
 through with the business which we have been 
 sent here to attend to, in revising the Constitu 
 tion. I have not taken up much time in making 
 speeches, because I have not been anxious of 
 having my name thus perpetuated ; when I die, 
 let me go. But it is not so with many of the 
 members of the Convention ; and many of the 
 
66th day.] 
 
 JUSTICES OF THE PEACE, &c. 
 
 365 
 
 Monday,] 
 
 WOOD WESTON WALKER. 
 
 [July 25th. 
 
 speeches which have been made, have not been 
 delivered so much for the purpose of enlightening 
 us, as they have been for the purpose of beautify 
 ing those pages that are to be read hereafter, as 
 containing the eloquence and the wisdom of this 
 Convention. We have now arrived, as I believe, 
 nearly to the close of our labors here ; and the 
 best thing that we can do is, to wind up our con 
 cerns as soon as we can and go home. We saw 
 how it was in the debate on Saturday, when 
 another question was under discussion. I wished 
 to speak on that question, and there were proba 
 bly others in similar circumstances, who had 
 given the matter a careful examination ; but one 
 gentleman spoke an hour, another a half hour, 
 and another a half hour, until gentlemen upon 
 the other side had no opportunity to speak at all. 
 The subjects which are now to come before us, 
 have, most of them, if not all, been carefully ex 
 amined ; and then why not limit the time to 
 fifteen minutes ? If that is the case, the Conven 
 tion will not be so impatient, and they will be 
 willing to hear both sides. It is not so much 
 eloquence and oratory that we want as it is sub 
 stance and sound argument ; and if gentlemen 
 will state their points without amplifying so 
 much, we can understand them if there is any 
 substance in their views, and we can act accord 
 ingly, without any of these ornaments of rhetoric. 
 There is not a single question which has yet come 
 before us, the points of which could not have 
 been stated in fifteen minutes ; but gentlemen 
 want the record of their speeches to go down to 
 posterity, that their children and their children s 
 children may see how their fathers and their 
 grandfathers talked upon these subjects. I am 
 entirely opposed to the proposition to rescind this 
 fifteen minutes rule ; instead of that, I wish we 
 had adopted it much earlier in the session. There 
 are many subjects which have been introduced 
 into the Convention, upon which I have felt 
 deeply interested ; but there has not been one 
 upon which, if I had studied it carefully and taken 
 pains to condense my ideas, I could not have stated 
 all the leading points without exceeding a fifteen 
 minutes speech. So can the gentleman from 
 Salem. I know that that gentleman has a power 
 of condensation ; and that he can bring into fif 
 teen minutes the consideration of the most elabo 
 rate and complicated question, if he chooses to do 
 so. I see no necessity, therefore, for rescinding 
 the rule in regard to this matter. It is now 
 nearly the end of July ; and there was, throughout 
 the community at large, an expectation, when this 
 Convention commenced its session, that it would 
 expire about the first of July. Instead of that, it 
 is now the last of July ; and if we rescind this 
 
 rule, I see nothing to prevent our going on for 
 another month, or even longer. Sir, there is no 
 need of it. This is a rule that commends itself 
 to all of us. Had I been one of these long talkers, 
 had I been unfortunate enough to possess the 
 power of eloquence, and had tHus been tempted 
 to spread out my thoughts in page after page of 
 the journal of our debates I should not have said 
 what I have said. Every gentleman knows that 
 I have not taken up much of the time of the Con 
 vention ; and I have often regretted that our pro 
 ceedings were so much delayed by the protracted 
 remarks of some of my associates, who use very 
 little power of condensation in expressing their 
 views. I hope we shall try to have a reform in 
 this respect, so as to bring our session to a close. 
 Without taking up any more time, I will con 
 clude by expressing the hope that the rule will 
 not be rescinded. 
 
 The question being then taken, the motion was 
 not agreed to. 
 
 Election of Justices of the Peace. 
 
 Mr. WESTON, of Duxbury, moved that de 
 bate on the subject of the election of justices of 
 the peace should cease at four o clock this after 
 noon. The motion was agreed to. 
 
 Mr. WALKER, of North Brookfield. I move 
 that the Convention now proceed to the consider 
 ation of the resolves on the subject of the election 
 of justices of the peace. 
 
 The motion was agreed to. 
 
 Mr. LORD, of Salem. Is that matter in the 
 Orders of the Day ? 
 
 The PRESIDENT. Certainly it is. 
 
 Mr. LORD. Does the discharge of the Com 
 mittee of the Whole from its farther consideration 
 place it in the Orders of the Day without any 
 farther action ? 
 
 The PRESIDENT. The Chair is of opinion 
 that it does. He does not know where else to 
 put it. The question is on the resolves reported 
 by the Committee of the Whole. The gentleman 
 from Lenox, (Mr. Bishop,) is chairman. 
 
 The resolves were read as follows : 
 
 1. Resolved, That it is expedient to amend the 
 Constitution, so as to provide that the electors of 
 the several towns shall elect, in such manner as 
 the legislature may direct, Justices of the Peace, 
 whose term of office shall be three years, and 
 whose jurisdiction shall extend throughout the 
 county in which they may be elected ; their num 
 ber and classification shall be regulated by law ; 
 they may be removed after due notice, and an op 
 portunity of being heard in their defence, by such 
 court as may be prescribed by law, for causes to 
 be assigned in the order of removal. 
 
 2. Resolved, That it is expedient so to amend 
 
360 
 
 JUSTICES OF THE PEACE. 
 
 [66th day. 
 
 Monday,] 
 
 BUTLER. MORTON ALVORD GRISWOLD SCHOULER. 
 
 [July 25th. 
 
 the Constitution that the Governor may remove 
 any officer in the former resolves of this Com 
 mittee mentioned, within the term for which he 
 shall have been elected, giving such officer a copy 
 of the charges against him, and an opportunity of 
 being heard in his defence. 
 
 3. Resolved, That it is expedient to provide in the 
 Constitution, that, in case of vacancy, by resignation 
 or otherwise, of any state, county, or district officer, 
 whose election is provided for in the Constitution, 
 the Governor shall issue his warrant to the mayor 
 and aldermen of the several cities, and the select 
 men of the several towns, to fill the vacancy at the 
 next annual election after it shall happen ; and 
 the Governor, with the advice and consent of 
 the Council, may appoint suitable persons to fill 
 vacancies until an election by the people. 
 
 Mr. BUTLER, of Lowell. I move the amend 
 ment which was presented in Committee of the 
 Whole, before the Committee was discharged from 
 the farther consideration of this subject. It will 
 be found in Document 121, and was offered by 
 the gentleman from Bernardston, (Mr. Cushman). 
 It is to substitute the following for the two first 
 resolutions, as reported by the Committee : 
 
 Resolved, That it is expedient to amend the 
 Constitution as follows : 
 
 There shall be two classes of Justices of the 
 Peace, viz. : 
 
 1. Trial Justices, who shall be elected by the 
 legal voters of the several towns for a term of 
 three years. There shall be one in each town, 
 and one additional for every two thousand inhab 
 itants. They shall have the same jurisdiction, 
 powers and duties that are now exercised by 
 Justices of the Peace, Justices of the Quorum, 
 and Commissioners to qualify civil officers ; and 
 such other powers as may be given them by the 
 legislature. 
 
 2. Justices of the Peace, who shall be appointed 
 by the Governor and Council for a term of 
 seven years ; and those who now hold that office 
 shall continue as such, according to the tenure of 
 their respective commissions : prodded, that the 
 jurisdiction of Justices of the Peace shall extend 
 only to the acknowledgment of deeds, the admin 
 istration of oaths, the issuing of subpoenas, and 
 the solemnization of marriages. 
 
 Mr. MORTON, of Andover. I suppose that 
 the object of the amendment offered by the gen 
 tleman from Lowell, (Mr. Butler,) is to place the 
 matter precisely as it was when under considera 
 tion by the Committee of the Whole. With his 
 permission, I v\ ill offer an amendment, which, I 
 think, will better effect that object. It is to strike 
 out of the first resolve the words, " There shall 
 be two classes of Justices of the Peace," and also 
 the word " who," in the next line, and insert 
 after the words " Justices of the Peace," in the 
 second resolve, what I send to the Chair. If 
 amended as I propose, the resolves will stand as 
 follows : 
 
 Resolved, That it is expedient to amend the 
 Constitution as follows : 
 
 1. Trial Justices shall be elected by the legal 
 voters of the several towns for a term of three 
 years. There shall be one in each town, and one 
 additional for every two thousand inhabitants. 
 They shall have the same jurisdiction, powers, 
 and duties that are now exercised by Ju-tices of 
 the Peace, Justices of the Quorum, and Commis 
 sioners to qualify civil officers ; and such other 
 powers as may be given them by the legislature. 
 2. Justices of the Peace, and Justices ot the Peace 
 and Quorum, and Justices throughout the Com 
 monwealth, and Commissioners to qualify civil 
 officers, shall be appointed by the Governor and 
 Council for a term of seven years ; and those who 
 now hold that office shall continue as such, ac 
 cording to the tenure of their respective commis 
 sions : provided, that the jurisdiction of Justices 
 of the Peace shall not extend to the hearing or 
 trial of any causes, or the issuing of warrants in 
 criminal cases. 
 
 Mr. BUTLER. As the amendment of the 
 gentleman from Andover seems better suited to 
 the object in view, I will withdraw my amend 
 ment. 
 
 The PRESIDENT. Then the question will 
 be on the amendment offered by the gentleman 
 from Andover, (Mr. Morton). 
 
 Mr. ALYORD. I wish to suggest a difficulty 
 in the amendment proposed. It provides that 
 justices shall be appointed by the Governor and 
 Council, and that those no win office shall continue 
 to hold their commissions. Under that amend 
 ment, justices of the quorum, and justices through 
 out the Commonwealth, may be appointed in any 
 number as justices of trial. You, therefore, lose 
 the benefit of the election of justices of trial by 
 the people ; for the governor will have power, in 
 definitely, to appoint justices for the trial of 
 causes. 
 
 Mr. GRISWOLD, for Erving. I move to 
 amend by striking out of the last line but two in 
 the first resolution, as proposed by the gentleman 
 from Andover, the words "justices of the quo 
 rum," and also the words " civil officers." If 
 these words are not stricken out we shall have 
 the offices of justices of the quorum, and of com 
 missioners to qualify civil officers, indefinitely 
 extended. I see no way to remedy the evil or to 
 limit it, but by the amendment I have proposed. 
 There are some differences of opinion about this ; 
 but I think we had better strike out the words I 
 have indicated. It will prevent the creating of 
 new offices, which is the object, if I understood 
 it, of the gentleman for Montague, (Mr. Alvord,) 
 and will have the justices as they are now, hold 
 ing their commissions until they expire. 
 
 Mr. SCHOULER. I want to ask one or two 
 questions before I can vote on this matter. I 
 
66th day.] 
 
 JUSTICES OF THE PEACE. 
 
 367 
 
 Monday,] 
 
 HALLETT KEYES DAVIS. 
 
 [July 25th. 
 
 want to know whether justices of the peace in 
 cities are to be elected by the district system, or by 
 the whole city ? If they are to be elected by the 
 whole city we shall have about seventy or eighty 
 to elect every three years. 
 
 Mr. HALLETT, for Wilbrahara. I would 
 remind the gentleman from Boston that in the 
 county of Suffolk there is a police court estab 
 lished. Justices of the peace in Suffolk have no 
 power to try causes. All criminal cases that 
 would be investigated by a justice of the peace 
 are to be returned to the police court. This 
 amendment relates to justices of the peace in 
 towns ; it cannot relate to any city or district in 
 which there is a police court. The justices of the 
 peace are to be appointed in precisely the same 
 manner as heretofore, except that they are to be 
 limited, all over the Commonwealth, as they are 
 now limited that they shall have 110 jurisdiction 
 as a court. 
 
 Mr. KEYES, for Abington. I was not here 
 when this question was up before ; but it strikes 
 me that, on reading this amendment and hearing 
 the debate upon it, there is something peculiar 
 about one paragraph that is the paragraph which 
 provides that trial justices shall be elected for 
 each town, and that they are to have jurisdiction 
 throughout the county. Now I should like to 
 know what use there is in that ? I suppose the 
 design is comprehended under the general one 
 that the people should elect their judges, but on 
 examination it really seems to me that it is not 
 based upon that at all. Take an instance. Here 
 is one town in the Commonwealth which elects a 
 trial justice. Anybody who has any business 
 before a trial jxisticc may elect whatever justice 
 he pleases, and I may be called upon to answer 
 before a justice that I had no hand in electing. 
 I prefer that the governor should have the right 
 to appoint, for this reason. We all know that 
 offices of this kind are sometimes thrust upon 
 people who do not want them, as a matter of joke, 
 as, for instance, in the case of constables and 
 militia officers. There may be towns which hold 
 this office in contempt, and they may choose a 
 man who is utterly unfit for the office, and that 
 man may be selected by all the towns in the 
 county to give his decision in cases. I am not 
 lawyer enough to know what jurisdiction a jus 
 tice of the peace has, although I am one myself ; 
 but these trial justices may be so selected, and 
 their known sentiments or predelictions may be 
 taken advantage of to the annoyance of individu 
 als, and the subversion of just rights. Suppose, 
 for instance, that a liquor case is to be tried, and a 
 justice living in a remote town from where the 
 case originated is known to entertain peculiar 
 
 sentiments ; the party complaining may go and 
 employ him and drag the defendant from his own 
 home and neighborhood, merely because he thinks 
 he has found a justice that will coincide with his 
 notions of right and wrong in this matter. The 
 object of election by the people will, in this way, 
 be defeated, as they will be subjected to the 
 decisions of justices whom they had no hand in 
 electing. 
 
 Mr. DAVIS, of Plymouth. I believe that the 
 gentleman for Abington is mistaken in regard 
 to the object of this amendment. I am sorry to 
 hear that the gentleman from Lenox, (Mr. 
 Bishop,) is so ill to-day as to be unable to be 
 here, and that this question should have come up 
 in his absence. I believe that gentlemen are 
 aware that there is a greater evil than the gentle 
 man for Abington supposes, from the great number 
 of justices of the peace who are appointed by the 
 governor, and who, to a certain extent, have 
 power over the liberty and property of the people 
 of the Commonwealth. I believe it is important 
 that members of this Convention should know 
 that there is a great evil which is felt by the citi 
 zens of the Commonwealth, arising from the 
 present system, with regard to the power, juris 
 diction, and learning of justices of the peace. It 
 is a matter well known to many gentlemen of 
 this body, who have had much experience at the 
 bar, that persons who are appointed by the gov 
 ernor, as justices of the peace for the purpose of 
 taking the acknowledgment of deeds, or of 
 administering oaths, often take upon themselves 
 to act as judges. They have been found issuing 
 warrants day after day against the same individ 
 ual, and even engaged in stirring up civil broils in 
 the neighborhood, that they might thus have an 
 opportunity of trying civil cases. 
 
 There are numerous cases in this Common 
 wealth of a like character, and one case has 
 happened within my knowledge. A justice of 
 the peace issued somewhere between fifty and a 
 hundred warrants against two or three individuals 
 in this State, in the course of three months. In 
 each of those cases an appeal was taken, and all 
 of them were quashed when they carne to a hear 
 ing in the court of common pleas. 
 
 I believe it is to prevent this evil, and not from 
 fear, as the gentleman for Abington would have 
 it, that the people will elect certain persons as 
 justices who are weak sisters, as he said, but it 
 is because we know as an actual fact, that among 
 the great variety of persons on whom the gov 
 ernor may feel it necessary to confer a commis 
 sion as justice, there must be a great proportion 
 little known to the governor ; and therefore, the 
 | governor is not so well fitted as the citizens of 
 
368 
 
 JUSTICES OF THE PEACE. 
 
 [66th day. 
 
 Monday,] 
 
 DAVIS LORD. 
 
 [July 25th, 
 
 the several neighborhoods, to confer that honor 
 upon the persons who are to execute the duties 
 of that office. I do not believe, either generally, 
 or specially, that the people of the small neighbor 
 hoods, as a matter of abstraction, to say the least, 
 will not choose persons fully competent to exer 
 cise the duties of that office. It is for that 
 reason that I regret that the motion has been 
 made to except justices of the quorum from the 
 general scope of the first resolve. I hope the 
 present justices of the quorum will continue 
 during the tenure of their commissions, and I do 
 hope that these justices, having the power, as 
 they do have, over the liberties of the people of 
 the Commonwealth, will be elected by the people 
 of the several towns. I know it is a crying evil, 
 about which the citizens in almost every town 
 have something to complain of, that there are per 
 sons among them who have the power, and who, 
 either from ignorance or dishonesty, discharge or 
 confine persons within the limits of the county, 
 and who issue writs and give judgments either 
 one way or the other, solely from motives of 
 policy. And, with this view, and merely as an 
 illustration, it will not be out of order to relate 
 an anecdote. I knew in a town not fifty miles 
 from the town which I represent, a justice, now 
 dead, who was accustomed to try cases brought 
 before him by a certain lawyer, residing in his 
 neighborhood. It so happened, at one time, that 
 an action was brought by another lawyer, which 
 was returnable before this justice ; and his patron, 
 a lawyer of distinction, appeared for the defend 
 ant. In the course of the trial, this lawyer 
 forced the counsel opposed to him, to make 
 amendments from time to time. After those 
 amendments were allowed, the case proceeded. 
 A clear case was made out for the plaintiff, and 
 when the justice came to deliver his opinion, 
 Well," says he, " I have allowed Mr. so and so 
 to amend several times, and I do not think it is 
 more than fair to give judgment for the defend 
 ant." 
 
 I hope, Mr. President, that this evil, which in 
 particular cases is a trying one, will be prevented ; 
 and I hope we shall prevent it, so far as civil 
 and criminal cases are concerned, and so far as 
 the liberties of the citizens of this Commonwealth 
 are at stake. 
 
 Mr. DA WES, of Adams. Is an amendment 
 to an amendment in order at this time ? 
 
 The PRESIDENT. There is already an 
 amendment to an amendment pending. The 
 immediate question is upon the amendment 
 offered by the gentleman for Erving, (Mr. Gris- 
 wold). 
 
 Mr. LORD, of Salem. Is not the resolution 
 
 itself an amendment to the Report of the Com 
 mittee ; and if so, is not this an amendment to 
 the amendment ? 
 
 The PRESIDENT. The Chair understands, 
 that pending the Report of the Committee, the 
 delegate from Andover, (Mr. Morton,) moved to 
 amend by striking out the first resolve, and to 
 substitute the resolution reported in Document 
 No. 121. Then the delegate for Erving, (Mr. 
 Griswold,) moved to amend the first of these res 
 olutions. That makes an amendment to the 
 amendment. 
 
 Mr. LORD, of Salem. I wanted to express 
 some views in relation to this subject, for the 
 reason that I thought there was real necessity for 
 reform. I supposed, if there were any matters 
 in this Commonwealth, which were generally 
 understood by the people of the Commonwealth 
 as needing reformation, those two matters were 
 the police courts and justices of the peace. These, 
 by way of preeminence, were matters over all 
 others, in my judgment, which demanded reform. 
 Well, Sir, there are some traits of reform in this 
 proposition, which I like. I like the idea of there 
 being two classes of magistrates, the one being 
 trial justices, and the other having some more 
 limited jurisdiction substantially the jurisdic 
 tion suggested by the gentleman from Bernards- 
 ton, (Mr. Cushinan,) when he first made the 
 proposition yesterday to amend, with some qual 
 ification. I was dissatisfied with the amendment 
 made in Committee of the Whole, for a reason 
 which seems to be overlooked ; and that is, that 
 the trial justices which this resolution provides 
 for, are enough, in all conscience, for all the ordi 
 nary purposes which require the exercise of dis 
 cretion. W T here justices are merely to take the 
 acknowledgment of deeds, and do any other 
 mere formal act, which could as well be done by 
 machinery as by a magistrate, there I would let 
 all these justices remain ; but where the office 
 requires the exercise of sound and legal dis 
 cretion, I would have it limited to that class 
 called trial justices. 
 
 Now, Sir, I have no objection at all to the 
 election of trial justices. On the whole, I am 
 rather inclined to think that is a good way to elect 
 them. But I do not think it well to elect them 
 without the power of keeping them in if the 
 people want them. I do not think it well to take 
 away from the governor the power of appoint 
 ment, and yet leave to him the power of removal 
 the instant the people appoint, if he choose to do 
 so. I do not think it well to say that, when the 
 people have elected one of these officers, the gov 
 ernor may put his veto upon him, and say he 
 shall not hold his office an hour. I would just 
 
66th day.] 
 
 JUSTICES OF THE PEACE. 
 
 369 
 
 Monday,] 
 
 LORD CHANDLER. 
 
 [July 25th. 
 
 as soon give the governor the power to remove 
 every other officer. Although you put into the 
 hands of the people the power of election, you 
 say, also, that the very day they have exercised 
 that power, the Governor and Council may re 
 move. And that provision extends to judges of 
 probate, sheriffs, commissioners of insolvency, 
 registers of probate, and all other officers who are 
 now appointed by the executive, but hereafter to 
 be chosen by the people. The language, though 
 not precise, still seems to me to include them all, 
 for it says it is expedient so to amend the Con 
 stitution, that the governor may remove any 
 officer in the former resolve, by this Committee 
 mentioned. The Committee having made a Re 
 port, as to the election and tenure of office, and 
 the Convention having acted upon it, and agreed 
 that the judges of probate and other officers shall 
 be elected for three years, these resolves provide 
 that, notwithstanding what we have done, the 
 Governor and Council may remove them at any 
 time. I do not think it is proper to put the 
 appointing power in one tribunal, and the re 
 moving power in another. Such is the effect of 
 this resolution. 
 
 I do not think it well to adopt these resolves, 
 as they stand, for another reason. I do not think 
 it well to give to one town the power to elect 
 a magistrate who shall exercise jurisdiction in 
 another town where he cannot get, were he a 
 candidate there, a single vote. It is a very con 
 venient arrangement for a party who wants to 
 dispose of some particular individual whom they 
 do not want among them, and who will agree 
 not to work at home, to place him where he 
 may do all the mischief he does, not at home, but 
 abroad. 
 
 It was answered just now, that the police court 
 was established in the city of Boston. But, that 
 is not a constitutional court, but merely an insti 
 tution to be made or unmade, at the pleasure of 
 the legislature. It may be changed, and, Sir, the 
 town of Boston, if I am right in this, having one 
 hundred and forty-eight thousand inhabitants, 
 would have to choose seventy-four trial justices, 
 and one more for corporate rights, making sev 
 enty-five trial justices, which the city of Boston 
 have to elect every three years. I do not think 
 that a necessary, or proper, or expedient provi 
 sion. 
 
 But, there is another difficulty in these resolves, 
 and that is, that no provision is made for the po 
 lice court. I am inclined to think that the 
 provision you have already passed in relation to 
 judicial officers, clearly by its terms covers police 
 courts. Now, this provision is entirely nugatory, 
 until we have made provision for police courts. 
 
 25 3 
 
 There is another provision here though I have 
 not half time enough to mention the objections 
 which I desire to suggest, and at the same time to 
 suggest the remedies to many of them but there is 
 another provision, and that is, the one which gives 
 the legislature the power to confer upon justices 
 of the peace any authority which the legislature 
 choose to confer upon them. It does not provide 
 a jurisdiction which cannot be altered, not such as 
 is given to them by the present Constitution ; but 
 they are to have all such other powers as may be 
 given them by the legislature. I am not willing 
 thus to create a tribunal of this kind, with power 
 in the legislature, to confer upon it any jurisdic 
 tion, that it choose to confer. I am inclined to 
 think that real wisdom would suggest the same 
 course in relation to these resolves, that was sug 
 gested this morning in relation to the amendment 
 proposed by the gentleman who represents "SVil- 
 braham, that they are not in a condition in which 
 they can be matured. It is not for me to do any 
 thing more than simply to suggest, that although 
 there is here an object to be obtained, and which 
 I think there is not a single individual here who 
 does not wish to obtain, yet it cannot be accom 
 plished in this Convention. I have suggested 
 some half a dozen objections, without having an 
 opportunity, on account of the fifteen minutes 
 rule, to suggest a single remedy. There were 
 other difficulties which suggested themselves to 
 me ; but of course, as the hour at which the Con 
 vention have determined to take the question, is 
 near at hand, I cannot even state them. 
 
 Mr. CHANDLER, of Greenfield. It seems to 
 me that there are several points in the resolutions 
 which are objectionable. In the first place, I do 
 not approve of the two classes of justices. It 
 seems to me to be making an invidious distinction, 
 and one altogether unnecessary, the one class to 
 hear and determine important causes ; and the 
 other, to administer oaths on common occasions, 
 to witness deeds, &c. Why should such a dis 
 tinction be made ? I believe if you submit the 
 election to the people they will choose those who 
 have common sense, and common information, 
 and who, of course, will be capable to discharge 
 all the duties which appertain to the office of jus 
 tice of the peace. It seems to me, therefore, en 
 tirely unnecessary, and, indeed, even a burlesque 
 upon the the people to suppose, that they will 
 choose a man incapable of performing the duties 
 of the office. And what a burlesque it would be 
 upon the people ! A stranger is passing through 
 the town, he calls at a house, and inquires for 
 your patrician justice, as he has a cause to submit 
 to him. He goes his way. Another stranger 
 comes along, and he inquires for your plebian 
 
370 
 
 JUSTICES OF THE PEACE. 
 
 [66th day. 
 
 Monday,] 
 
 DAWES ALVORD CHAPIN MORTON WESTOX LELAXD. 
 
 [July 25th. 
 
 justice, as he wants him to marry his daughter. 
 This distinction seems to me invidious and un 
 necessary. 
 
 [Here the President s hammer fell, the hour of 
 four o clock having arrived, at which time the 
 Convention had ordered the question to be taken.] 
 
 The question was taken upon the amendment 
 of the gentleman for Erving, (Mr. Griswold,) to 
 strike out in the first resolve, the words, "jus 
 tices of the quorum and commissioners to qualify 
 civil officers," and it was adopted. 
 
 Mr. DAWES, of Adams, moved to amend by 
 inserting in the first paragraph, after the word 
 towns" the words "and cities where no police 
 court is, or may be established by law," so that 
 the clause as amended, would read : 
 
 Trial Justices shall be elected by the legal 
 voters of the several towns and cities where no 
 police court is or may be established by law, for a 
 term of three years. 
 
 The amendment was agreed to. 
 
 Mr. ALVORD, for Montague, moved to amend 
 ihe second paragraph, by inserting after the word 
 * ofj** the word "such," and to strike out the 
 words ft of the peace." 
 
 So that instead of "provided, that the jurisdic 
 tion of justices of the peace, shall not extend," 
 &e,, it would read : 
 
 Provided, That the jurisdiction of such justices 
 shall not extend. c. 
 
 The motion was agreed to. 
 
 Mr. CHAP IN, of Worcester, moved to insert 
 an additional section to the amendment of the 
 gentleman from Andover, (Mr. Morton,) as fol 
 lows : 
 
 3. Justices and .elerks of the police courts in 
 the several towns and cities of the Common 
 wealth, shall be elected by the legal voters of the 
 several towns and cities,, for a term of three years." 
 
 The amendment was agreed to. 
 
 Mr. MORTON, of Andover, moved to strike out 
 in the last line of the first paragraph, the words, 
 " and such other powers as may be given them," 
 and to insert the words, " subject to alterations," 
 so that the clause as amended, would read : 
 
 They shall have the same jurisdiction, powers 
 and duties, that are now exercised by justices of 
 the peace, subject to alterations by the legislature. 
 
 Mr. STEVENSON, of Boston. I would sug 
 gest to the gentleman to strike out the words which 
 he proposes, without inserting. The effect of 
 leaving the clause as it now stands, or of striking 
 out and inserting that which he proposes, will be 
 
 to confer upon the legislature the power to give 
 these officers authority to try the highest causes. 
 
 The PRESIDENT. The Chair must remind 
 the gentleman that he cannot debate the amend 
 ment. 
 
 Mr. THOMPSON, of Charlestown. I desire 
 to know if the motion is divisible, so that the 
 question may first be taken upon the motion to 
 strike out, and then upon the motion to insert ? 
 
 The PRESIDENT. A motion to strike out 
 and insert is not divisible. 
 
 The amendment was then adopted. 
 
 Mr. WESTOX, of Duxbury, suggested that 
 inasmuch as there seemed to be some prejudice 
 against the word " trial," he thought some other 
 word might be substituted ; he therefore moved 
 to strike out the word "trial," and insert the 
 word " town," so that it would read " Town 
 Justices," instead of " Trial Justices." 
 
 The amendment was not agreed to. 
 
 Mr.FROTHINGHAM, of Charlestown, moved 
 to insert, after the word " and," in the third line 
 of the first paragraph of the resolve, the words 
 "maybe," so as to make the clause read: 
 
 There shall be one in each town, and may be 
 one additional for every two thousand inhab 
 itants. 
 
 The amendment was adopted. 
 Mr. LELAND, of Holliston, moved to amend 
 by adding to the first resolve the following : 
 
 Provided, that no Trial Justice shall act as such 
 after his ceasing to reside in the town in which he 
 was elected. 
 
 Mr. SCHOULER asked the gentleman from 
 Holliston to substitute the following instead of 
 his amendment : Insert after the word " inhab 
 itants," the words " who shall have jurisdiction 
 only in the towns in which they shall reside, and 
 for which they shall be elected." So that the 
 clause, if amended, would read : 
 
 There shall be one in each town, and may 
 be one additional for every two thousand inhab 
 itants, who shall have jurisdiction only in the 
 towns in which they reside and for which they 
 shall be elected. 
 
 Mr. LELAND declined to accept the substi 
 tute, and the question being taken, the amend 
 ment was not adopted by the Convention. 
 
 Mr. MORTON, of Andover, moved to amend 
 by striking out the words " each town," and to 
 insert " every such town or city." The clause 
 would then read : 
 
 There shall be one for every such town or city, 
 
66th day.] 
 
 JUSTICES OF THE PEACE. 
 
 371 
 
 Monday,] 
 
 TB.AIX LORD STEVEXSON WHITNEY BIRD HALLETT. 
 
 [July 25th. 
 
 and may be one additional for every two thou 
 sand inhabitants. 
 
 The motion was agreed to ayes, 148 ; noes, 3. 
 
 On motion of Mr. TRAIN, of Framingham, 
 the Convention reconsidered the vote by which 
 the amendment of the gentleman from Holliston 
 (Mr. Leland) was rejected. 
 
 The question then recurred upon the adoption 
 of the amendment, which was read, as follows : 
 Add, at the end of the first paragraph, the follow 
 ing : 
 
 Provided, that no Trial Justice shall act as 
 such upon his ceasing to reside in the town in 
 which he was elected. 
 
 The question was taken, and the amendment 
 adopted. 
 
 Mr. LORD, of Salem, moved to amend by ad 
 ding to the first section the following words : 
 
 But no Trial Justice shall have jurisdiction in 
 any civil action in which both of the parties 
 shall be inhabitants of towns in the Common 
 wealth, other than the town in which such Justice 
 was elected. 
 
 The amendment was not agreed to. 
 
 The question then recurred upon the amend 
 ment offered by Mr. Morton, of Andover, as 
 amended, to strike out the first resolve reported 
 by the Committee, and to insert the follow 
 ing : 
 
 Resolved, That it is expedient to amend the 
 Constitution, as follows : 
 
 1. Trial Justices shall be elected by the legal 
 voters of the several towns and cities where no 
 police court is or shall be established by law, for 
 a term of three years. There shall be one in 
 every such town or city, and may be one addi 
 tional for every two thousand inhabitants. 
 They shall have the same jurisdiction, powers 
 and duties, that are now exercised by Justices of 
 the Peace, subject to alteration by the legislature : 
 provided, that no Trial Justice shall act as such 
 upon his ceasing to reside in the town in which 
 he was elected. 
 
 2. Justices of the Peace, Justices of the Peace 
 and Quorum, J ustices of the Peace throughout the 
 Commonwealth, and Commissioners to qualify 
 civil officers, shall be appointed by the Governor 
 and Council, for a term of seven years ; and those 
 who now hold that office shall continue as such, 
 according to the tenure of their respective com 
 missions : provided, that the jurisdiction of such 
 justices shall not extend to the hearing or trial of 
 any causes, or the issuing of warrants in criminal 
 cases. 
 
 3. Justices and Clerks of the police courts, in 
 the several towns and cities in the Common 
 wealth, shall be elected by the several towns and 
 cities, for a term of three years. 
 
 Mr. STEVENSON, of Boston. From the fact 
 that this is a subject which only those acquainted 
 with the law can thoroughly understand, I feel 
 under the necessity of moving to recommit this 
 subject to the Committee which reported it. 
 
 Mr. WESTON, of Duxbury. If the subject 
 is to be recommitted, I hope it will be committed 
 to a Select Committee, and not to the Committee 
 which reported it. 
 
 Mr. STEVENSON. I will so modify my 
 motion. 
 
 The question was taken, and the motion to 
 commit was disagreed to ayes, 97 ; noes, 119. 
 
 Mr. WHITNEY, of Boylston. After so much 
 information upon this subject, I feel disposed to 
 move, and I do now move, to postpone indefi 
 nitely the whole subject. 
 
 Mr. BIRD, of Walpole. I move the previous 
 question. 
 
 Mr. HALLETT, for Wilbraham. I desire to 
 know whether the motion for the previous ques 
 tion will extend to the second and third re 
 solves ? 
 
 The PRESIDENT. It will extend to all the 
 resolves under consideration. 
 
 Mr. HALLETT. Well, Sir, I desire to say a 
 word, to show why the main question should not 
 be ordered. According to my understanding, if 
 the previous question is sustained, it brings us to 
 a direct vote upon this second resolve, which I do 
 not hesitate to say is the most extraordinary prop 
 osition I ever heard proposed to be put into any 
 Constitution. It gives to the governor power to 
 turn every-body out of office in the Common 
 wealth. [A laugh.] I do not want to give the 
 governor any such powers. 
 
 Mr. BIRD, of Walpole. At the time I made 
 the motion, I supposed it applied only to the 
 amendment of the gentleman from Andover, (Mr. 
 Morton,) but if it is desirable to propose amend 
 ments to the other resolutions, and they cannot 
 be separated, I will withdraw the demand for the 
 previous question. 
 
 Mr. WHITNEY, of Boylston. I withdraw the 
 demand for the indefinite postponement. 
 
 Mr. MILLER, of Wareham. I renew the 
 motion. 
 
 Mr. HALLETT, for Wilbraham. I move to 
 amend by striking out the second resolution. 
 It is a resolution which gives the governor the 
 power of removing every-body, without any cause 
 whatever. 
 
 The PRESIDENT. The motion to amend 
 must be first put, before the motion for indefinite 
 postponement. 
 
 Mr. CHAPIN, of Worcester. I move to re 
 consider the vote by which the Convention re- 
 
372 
 
 BILL OF RIGHTS, &c. 
 
 [66th day. 
 
 Monday,] 
 
 MILLER BOUTWELL GRISWOLD STEVEXSON CHURCHILL. [July 25th. 
 
 fused to recommit this subject to a Special Com 
 mittee. The reason why I make the motion is 
 this : 
 
 The PRESIDENT. The question is not de 
 batable. 
 
 Mr. MILLER. I desire to inqure of the Chair 
 if my motion is not to be considered ? 
 
 The PRESIDENT. The Chair would inform 
 the gentleman that the pending question is a 
 motion to amend, made by the gentleman for 
 Wilbraliam, which must be first put, before the 
 motion for the indefinite postponement. A motion 
 has been made by the gentleman from Worcester, 
 to reconsider the vote by which the Convention 
 refused to recommit the subject of the election of 
 justices of the peace to a Special Committee, 
 which motion the Chair decides to be in order at 
 this time. 
 
 The question was taken upon Mr. Chapin s 
 motion, and there were ayes, 127 ; noes, 89. 
 
 The PRESIDENT. The question now is, 
 upon the motion of the delegate from Boston, 
 (Mr. Stevenson,) to recommit this whole subject 
 to a Special Committee. 
 
 Mr. BOUTWELL, for Berlin. I move that 
 the whole subject lie upon the table. 
 
 The question was taken, and there were ayes, 
 91 ; noes, 140. 
 
 So the motion was not agreed to. 
 
 Mr. GRISWOLD, for Erving. I move to 
 amend the rrotion of the gentleman from Boston, 
 (Mr. Stevenson,) by adding that the Committee 
 be instructed to report to-morrow morning. 
 
 Mr. STEVENSON. I accept the amend 
 ment. 
 
 The question was then taken upon the motion 
 of Mr. Stevenson, and it was decided in the 
 affirmative. 
 
 Mr. IvEYES, for Abington, moved that the 
 Committee consist of seven. 
 
 The motion was agreed to. 
 
 Debates and Proceedings. 
 
 The PRESIDENT. The next matter in the 
 Orders, is the following resolve, reported by the 
 Committee on Publishing the Proceedings and 
 Debates of the Convention. 
 
 The resolve was read, as follows : 
 
 Unsolved, That the Committee appointed to 
 superintend the publication of the reports of the 
 Debates and Proceedings of this Convention, be 
 authorized, in connection with the President and 
 State Auditor, to allow the accounts for such 
 service, and the Governor is hereby requested to 
 draw his order on the treasury for the payment 
 of the same. 
 
 The resolve was ordered to a second reading. 
 
 Announcement of a Committee. 
 
 The Chair announced as members of the Special 
 Committee on the resolves concerning the election 
 of justices of the peace, the following named 
 gentlemen : Mr. Stevenson, of Boston ; Mr. But 
 ler, of Lowell ; Mr. Chapin, of Worcester ; Mr. 
 Bartlett, of Boston ; Mr. Dawes, of Adams ; and 
 Mr. Morton, of Andover. 
 
 Mr. STEVENSON moved that the Committee 
 have leave to sit during the session of the Con 
 vention. 
 
 The motion was agreed to. 
 
 Mr. CHURCHILL, of Milton. I have a 
 proposition with reference to the election of jus 
 tices of the peace, which I ask permission to read 
 to the Convention, and which I ask may be refer 
 red to the Committee just appointed. 
 
 The resolve was read and referred. 
 
 Bill of Rights. 
 
 On motion of Mr. BIRD, of Walpole, the 
 Convention resolved itself into 
 
 COMMITTEE OF THE WHOLE. 
 
 Mr. Schouler, of Boston in the chair, upon the 
 several resolves reported from the Committee on 
 the subject of the Bill of Rights. 
 
 The resolves were read, as follows : 
 
 1. Resolved, That the Bill of Rights be 
 amended by adding to the eleventh article, as a 
 part of the same, the following words : 
 
 " And every person having a claim against the 
 Commonwealth, ought to have a judicial remedy 
 therefor." 
 
 2. Resolved, That the Bill of Rights be 
 amended by inserting between the llth and 12th 
 articles, the following additional article, being 
 identical with one now in another chapter of the 
 Constitution, and which more appropriately be 
 longs to the Bill of Rights, viz. : 
 
 " VII. The privilege and benefit of the writ 
 of habeas corpus shall be enjoyed in this Com 
 monwealth in the most free, easy, cheap, expedi 
 tious and ample manner ; and shall not be sus 
 pended by the legislature, except upon the most 
 urgent and pressing occasions, and for a limited 
 time, not exceeding twelve months." 
 
 3. Resolved, That the Bill of Rights be 
 amended in the last sentence of the 29th article, 
 by striking out the words so long as they behave 
 themselves well, and that they," and inserting, 
 "by tenures established by the Constitution, 
 and ;" also, by striking out the words " ascer 
 tained and established by standing laws," and 
 inserting, " which shall not be diminished during 
 their continuance in office," so that the whole 
 sentence, as amended, shall read as follows : 
 
 " 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 office by tenures 
 established by the Constitution, and should have 
 
66th day.] 
 
 BILL OF RIGHTS. 
 
 373 
 
 Monday,] 
 
 SUMNER. 
 
 [July 25th. 
 
 honorable salaries, which shall not be diminished 
 during their continuance in office." 
 
 4. Resolved, That the Bill of Rights be 
 amended, by inserting between the 29th and 30th 
 articles, the following additional article : 
 
 " This enumeration of rights shall not impair 
 others retained by the people, and no po \vers shall 
 ever be assumed by the legislature that are not 
 granted in this Constitution." 
 
 Also the following Minority Reports : 
 To amend as follows : And no subject shall be 
 hurt, molested, or restrained in his person, liberty, 
 or estate, for worshipping God in the manner 
 and season most agreeable to the dictates of his 
 own conscience, or for his profession or sentiments 
 concerning religion. 
 
 To add to the loth article of Bill of Rights the 
 following clause : 
 
 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. 
 
 Mr. SUMXER, for Marshfield. Mr. Chair 
 man : As chairman of the Committee on the Pre 
 amble and Bill of Rights, it belongs to me to 
 introduce and explain their Report. It will be 
 perceived that it is brief, and proposes no import 
 ant changes. But, in justice to the distinguished 
 gentlemen with whom I had the honor of being 
 associated on that Committee, I deem it my duty 
 to suggest that the extent of their labors should 
 not be judged by this result. It appears from the 
 proceedings of the Convention of 1820, that the 
 Committee on the Bill of Rights at that time, sat 
 longer than any other Committee. I believe that 
 the same Committee in the present Convention, 
 might claim the same preeminence. Their re 
 cords show twenty different sessions. 
 
 At these sessions, the Preamble and the Bill of 
 Rights, in its thirty different propositions, were 
 passed in review and considered, clause by clause ; 
 the various orders of the Convention, amounting 
 to twelve in number ; the petitions addressed to 
 the Convention, and referred to the Committee ; 
 and also informal propositions from members of 
 the Convention and others, were considered ; some 
 of them repeatedly and at length. On many 
 questions there was a decided difference of opin 
 ion; and on a few, the Committee was nearly 
 equally divided. But after the best consideration 
 we could bestow upon them, in our protracted 
 series of meetings, it was found that the few sim 
 ple propositions, now on your table, were all upon 
 which a majority of the Committee could be 
 brought to unite. As such, I was directed to 
 present them to the Convention. And here, Sir, 
 
 admonished by the lapse of time, and the desire 
 to close these proceedings, I might be content with 
 this simple statement. 
 
 But, notwithstanding the urgency of our busi 
 ness, I cannot allow the opportunity to pass in 
 deed, I should not do my duty without attempt 
 ing, for a brief moment, to show the origin and 
 character of this part of our Constitution. In 
 this way we may learn its weight and authority, 
 and appreciate the difficulty and delicacy of any 
 change in its substance, or even its form. I will 
 try not to abuse your patience. 
 
 The Preamble and Bill of Rights, like the rest 
 of our Constitution, were from the pen of John 
 Adams ; among whose published works the whole 
 document, in its original draught, may be found. 
 At the time when he rendered this important ser 
 vice to his native Commonwealth, and to the 
 principles of free institutions everywhere, he was 
 forty- five years of age. But he was not unpre 
 pared. The natural maturity of his powers had 
 been enriched by the well-ripened fruit of assidu 
 ous study, and of an active life, both of which 
 concurred in him. The examples of Greece and 
 Rome, and the writings of Sidney and Locke, 
 were especially familiar to his mind. The com 
 mon law he had made his own, and mastered well 
 its whole arsenal of Freedom. For a long time 
 the vigorous and unfailing partisan of the liberal 
 cause in Boston, throughout its many conflicts ; 
 then in Congress, whither he was transferred, the 
 irresistible champion of Independence ; and then 
 the republican representative of the united, but 
 still struggling colonies, at the court of France ; 
 in the brief interval between his two foreign mis 
 sions, only seven days after landing from his long 
 ocean voyage, he was chosen a delegate to the 
 Constitutional Convention, and at once brought 
 all his varied experience, rare political culture, 
 and eminent powers, to the task of adjusting 
 the frame-work of government for Massachusetts. 
 As his work, it all claims our regard ; and no 
 part bears the imprint of his mind so much as the 
 Preamble and Bill of Rights ; nor is any other 
 part authenticated as coming so exclusively from 
 him. 
 
 At the time of its first adoption, the Massachu 
 setts Bill of Rights was more ample in its pro 
 visions, and more complete in form, than any 
 similar Declaration in English or Colonial history. 
 Glancing at its predecessors, we shall learn some 
 thing of its sources. First came, long back in 
 the thirteenth century, Magna Charta, with its 
 genereous safeguards of Freedom, wrung from 
 King John by the Barons at Runnymede. From 
 time to time these liberties were confirmed, and, 
 after an interval of centuries, they were again 
 
374 
 
 BILL OF RIGHTS. 
 
 [66th day. 
 
 Monday,] 
 
 SUMXER. 
 
 [July 25th. 
 
 ratified, at the beginning of the unhappy reign 
 of Charles L, by a Parliamentary Declaration, to 
 which the monarch assented, known as the Peti 
 tion of Right, which, in its very title, reveals the 
 humility with which the rights of the people were 
 then maintained. And finally, in a different tone 
 and language, at the Revolution of 1688, when 
 James II. was driven from his dominions, a 
 " Declaration of the true, ancient, and indubitable 
 rights and liberties of the people of the king 
 dom," familiarly known as the Bill of Rights, was 
 delivered by the Convention Parliament to the 
 new sovereigns, William and Mary, and embodied 
 in the Act of Settlement, by virtue of which they 
 sat on the throne. These, Sir, are the English 
 examples. 
 
 Their influence was not restrained to England. 
 It crossed the ocean. From the beginning, the 
 colonists were tenacious of the rights and liber 
 ties of Englishmen, and, at various times and in 
 various forms, declared them. Connecticut, as 
 early as 1639 ; Virginia in 1624, and 1676 ; Penn 
 sylvania in 1682; New York in 1691 ; and I 
 might mention others still, put forth Declara 
 tions, brief and meagre, but kindred to those of 
 the mother country. In the colony of New 
 Plymouth, the essential principles of Magna 
 Charta were proclaimed in 1636, under the name 
 of the General Fundamentals ; and in 1672, the in 
 habitants of Massachusetts Bay declared in words 
 worthy of careful study, that " the free fruition 
 of such Liberties, Immunities, Privileges, as Hu 
 manity, Civility, and Christianity call for, as due 
 to every man in his place and proportion, without 
 impeachment and infringement, hath ever been 
 and ever will be, the tranquillity arid stability of 
 Churches and Commonwealth, and the denial or 
 deprival thereof, the disturbance, if not the ruin 
 of both." 
 
 In the animated discussions, which immediate 
 ly preceded the Revolution, the rights and liberties 
 of Englishmen were constantly asserted as the 
 birth-right of the colonists. This was often done 
 by formal resolutions or declarations, couched at 
 first in moderate phrase. At the outrage of the 
 Stamp Act, a Congress of Delegates from nine 
 States, held at New York, in October 176o, put 
 forth a series of resolutions entitled, " Declaration 
 of our humble opinion respecting the most essen 
 tial rights and liberties of the colonists." The 
 humility of this language may recall the English 
 Petition of Right under Charles I. This was 
 followed in 1774 by the Declaration of the Conti 
 nental Congress, which, in another tone and with 
 admirable force, arrays in ten different proposi 
 tions, the rights which " by the immutable laws 
 of nature, the principles of English liberty and 
 
 the several charters of compacts " belong to " the 
 inhabitants of the English colonies in North 
 America." 
 
 Time s noblest offspring is the last ; 
 
 and the whole colonial series was aptly closed by 
 the Declaration of Independence, which declared 
 not merely the rights of Englishmen, but the 
 rights of men. 
 
 But only a few brief weeks before the Declara 
 tion of Independence, Virginia, taking the lead of 
 her sister colonies, had established a Constitution 
 to which was prefixed an elaborate Bill of Rights. 
 This remarkable document, which has been the 
 grand precedent for the whole country, marks an 
 epoch in political history. In all English Decla 
 rations of Rights and even in those of the colonies, 
 unless we except the early declaration of the in 
 habitants of Massachusetts Bay, stress had been 
 laid upon the liberties and privileges of English 
 men. The rights claimed even by the Continental 
 Congress of 1774, in their masculine Declaration, 
 were the rights of " free and natural-born sub 
 jects within the realm of England." But the 
 Virginia Bill of Rights, standing at the front of 
 its first Constitution, discarded all narrow title 
 from mere English precedent, planted itself on the 
 eternal law of God, above every human ordinance, 
 and openly proclaimed that " all men are equally 
 free and independent ;" a declaration, which is 
 repeated, though in other language, by the Mas 
 sachusetts Bill of Rights. 
 
 The policy of Bills of Rights has been some 
 times called in question. It has been said that 
 they were originally privileges or concessions ex 
 torted from the king, and, though expedient in a 
 monarchy, are of little value in a republic. As 
 late as 1821, in the Convention for revising the 
 Constitution of New York, doubts of their utility 
 were openly expressed by Mr. Van Buren. But 
 they are now above question. Each new State, 
 ending with California, follows the example of 
 Virginia and Massachusetts, and places its Bill of 
 Rights in the front of its Constitution. Nor can 
 I doubt that much good is done by this frank 
 assertion of fundamental principles. The public 
 mind is instructed ; people learn to know their 
 rights ; liberal institutions are confirmed ; and 
 the Constitution is made stable in the hearts of 
 the community. The provisions in the Bill cf 
 Rights are lessons of political wisdom and anchors 
 of liberty. They are also the constant index and 
 scourge of injustice and wrong. In Massachu 
 setts, slavery itself disappeared before the declara 
 tion that " all men are free and equal," interpret 
 ed by a liberty-loving court. 
 
 In the Convention of 1780, the Bill of Rights 
 
66th day.] 
 
 BILL OF RIGHTS. 
 
 375 
 
 Monday,] 
 
 WILSON LORD BOUTWELL BKIGGS HALLETT ASPINWALL. [July 25th. 
 
 formed a prominent subject of interest. The ne 
 cessity of such a safeguard had been pressed upon 
 the people, and its absence from the Constitution 
 of 1777 was unquestionably a reason for the re 
 jection of that ill-fated effort. Indeed, this Con 
 stitution was openly opposed because it had no 
 Bill of Rights. In the array of objections to it 
 at the period was the following, which I take 
 from an important contemporaneous publication : 
 " That a Bill of Ilights, clearly ascertaining and 
 defining the rights of conscience, and that security 
 of person and property which every member of 
 the State hath a right to expect from the supreme 
 power thereof, ought to be settled and established, 
 previous to the ratification of any Constitution 
 for the State." Accordingly at the earliest mo 
 ment 
 
 [Here the hammer of the Chairman fell, and 
 Mr. Sumner took his seat.] 
 
 Mr. WILSON, of Natick. I move that the 
 gentleman for Marshfield have leave to proceed. 
 
 Mr. LORD, of Salem. I rise to a question of 
 order : whether it is competent for this Committee 
 to change a rule made in the Convention ? 
 
 Mr. WILSON. The rule of the Convention 
 is, that a person shall not speak more than fifteen 
 minutes, without leave is granted. I take it that 
 it is competent for this Committee to grant leave. 
 
 The CHAIRMAN, Mr. Schouler in the chair. 
 The gentleman from Natick moves that the gen 
 tleman for Marshfield have leave to proceed ; and 
 the Chair is of opinion that it is competent for the 
 Committee to grant that leave. 
 
 Mr. BOUTWELL, for Berlin. It seems to 
 me that the decision has been otherwise, and 
 that the rule of the Convention has been inter 
 preted to be in the nature of an instruction to 
 the Committee, like instructions to any other 
 body. 
 
 The CHAIRMAN. The Chair will read the 
 rule : 
 
 " Ordered, that on and after Monday next, no 
 member shall speak more than fifteen minutes, on 
 any one subject, without leave." 
 
 The Chair is of opinion that the rule is appli 
 cable in Committee and that the Committee have 
 a right to change the rule. 
 
 Mr. BRIGGS, of Pittsfield. I apprehend we 
 cannot change the rule ; but the question is, 
 whether the Committee have the right to grant 
 leave. It struck me that they had not the right, 
 but I think that if the rule is applicable to the 
 Committee we have the right to grant leave. 
 
 Mr. HALLETT. Leave may be granted by 
 universal consent, but not otherwise. 
 
 The Chairman again read the rule, and stated 
 
 it as his opinion that leave might be granted by a 
 majority of the Committee. 
 
 Mr. ASPINWALL, of Brookline. I think it 
 important that the rule should be decided prop 
 erly. Whatever the ruling of the Chair may be, 
 I suppose the Committee cannot decide upon an 
 order. That point of order having been raised, it 
 must go into the Convention for a decision. 
 
 The CHAIRMAN. Does the gentleman make 
 any motion ? 
 
 Mr. ASPINWALL. I will make 110 motion. 
 
 Mr. WILSON. I think that either in Con 
 vention or in Committee, when the fifteen min 
 utes have expired and the Chairman announces 
 the fact, the gentleman who is speaking cannot 
 go on. His time is out under the rule. But it is 
 competent for any member of the Convention to 
 move that he may have leave to proceed, and it 
 is competent for the Committee to grant leave. 
 I think that is in accordance with the terms of 
 the resolution, and if I were in the chair I should 
 put the question to the Committee. 
 
 Mr. LORD. If the motion of the gentleman 
 from Natick is entertained, then I move to amend 
 it so as to add after the words " delegate for 
 Marshfield," the words, " and any other gentle 
 men who please to address the Committee on 
 this subject, may be allowed to proceed, notwith 
 standing the fifteen minutes rule." That is the 
 same motion I made to-day, and at that time I 
 gave this very case as an illustration. I knew 
 the Committee wanted to hear the chairman of 
 the Committee on the Bill of Rights ; I wanted to 
 hear him ; I am most anxious to hear him ; but 
 I am not disposed to see this invidious distinction 
 made between one side and the other. I have 
 therefore made the motion. 
 
 Mr. BRIGGS. I said before, when the ques 
 tion was first propounded, that I thought we had 
 not power to grant leave. The fifty- first rule of 
 the Convention is this : 
 
 "The rules of proceeding in the Convention 
 shall be observed in a Committee of the Whole, 
 so far as they may be applicable, except the rule 
 limiting the time of speaking." 
 
 Now, Sir, the rule which you read, applies to 
 the Convention, and does not name the Commit 
 tee ; but this fifty-first rule of the Convention 
 makes it apply to the Committee, so far as it is 
 applicable. Now, on this precise subject, there 
 is as much reason for it here as in Convention. 
 It is applicable by the force of this fifty- first rule. 
 In Convention, when the fifteen minutes have 
 expired, it is in order to move that the gentleman 
 speaking may have leave to proceed. I appre 
 hend, then, that this motion, taken in connection 
 with the fifty-first rule, is strictly in order. 
 
376 
 
 BILL OF RIGHTS. 
 
 [66th day. 
 
 Monday,] 
 
 HALLETT DANA BIRD GARDNER BOUTWELL SUMNER. 
 
 [July 2oth. 
 
 The CHAIRMAN. The Chair would state 
 that he considers this rule, adopted in Conven 
 tion, as applicable to the Committee, and that the 
 general ruling and practice has been, that each 
 case shall be decided upon its own merits, when 
 it comes up ; and therefore the Chair rules that 
 the amendment proposed by the gentleman from 
 Salem, is not in order. 
 
 Mr. HALLETT. The motion, as I under 
 stand, is for leave to proceed. Now, Sir, no gen 
 tleman desires, more than I do, to hear the gen 
 tleman for Marshfield ; because, as he knows, I 
 have so kind feelings against him. [Laughter.] 
 I meant to say, kind feelings for him ; but on 
 one subject my feelings are against him ; but they 
 are kind, though strong. We have made a rule 
 to limit debate. We discussed the matter in 
 Convention whether we ought not to except the 
 chairman of a Committee from its application, 
 and we found there would be an injustice in that, 
 which was not suitable, because it was saying 
 that a majority should have more time than a 
 minority. Therefore, it stands as a rule, and for 
 that reason I hope we shall adhere to it, and es 
 pecially in this particular case. If we adhere to 
 it now, we shall find it more easy to apply it to 
 others. If we apply the rule now, we shall show 
 that we are disposed to carry this Convention 
 through, this week ; and I tell gentlemen who 
 have eloquent speeches to make, and itching ears 
 to listen to them, that if we allow this rule to be 
 neglected now, we shall not get through till a,\\- 
 other week. If this rule is passed over, I pledge 
 myself I will make no more effort to get the Con 
 vention through this week. 
 
 Mr. DANA, for Manchester. There is a dis 
 tinction between this order and other orders. 
 All other orders declare that no person shall 
 speak beyond a particular time, without a sus 
 pension of the rules, or general consent ; but this 
 order which we are now acting under, differs 
 from all others, and, I supposed, intentionally, 
 so that no person shall speak without obtaining 
 leave, and so that a majority may grant leave. 
 But under all the other orders, there was re 
 quired either a suspension of the rules, or unani 
 mous consent. But as this was a special and 
 peculiar order, I suppose the power to grant 
 leave must be in the body itself. 
 
 Mr. BIRD, of Walpole. I hope the rule will 
 be enforced. I do not like to say it, in relation 
 to the gentleman for Marshfield, but I think the 
 rule is important, and if we yield in this case, 
 we must yield in all cases ; and it will cost us 
 some two or three thousand dollars if we suspend 
 this rule now, by prolonging this Convention. 
 
 Now I wish to say, with all respect to the 
 
 Committee on the Bill of Rights, that if they had 
 reported two or three weeks ago, they would 
 have had the subject before us, and might have 
 had it fully presented. I do not wish to say any 
 thing to injure the feelings of the gentleman, or 
 of any member of the Committee ; but if they 
 had reported six weeks ago, they might have had 
 an opportunity to get the subject up before. 
 
 Mr. GARDNER, of Seekonk. If the gentle 
 man had had leave to proceed, he would have 
 been through before this time ; and I move that 
 the rule of the Convention be suspended, and 
 that the gentleman have leave to proceed and 
 finish his remarks. 
 
 The CHAIRMAN. The motion before the 
 Committee, is that made by the gentleman from 
 Natick, and the Chair will state that he consid 
 ers this rule as in the nature of an order, so that 
 it will not require two-thirds to rescind it, but 
 only a majority. 
 
 The question was then taken on granting leave, 
 and on a division, there were ayes, 92 ; noes, 87. 
 
 So the motion was decided in the affirmative. 
 
 Mr. BOUTWELL. I move a reconsideration 
 of the vote just taken. 
 
 Mr. BRIGGS. I would inquire if a Commit 
 tee can reconsider ? 
 
 The CHAIRMAN. The Chair thinks that 
 the motion of the gentleman for Berlin may be 
 entertained. 
 
 Mr. BOUTWELL. I make this motion with 
 great reluctance, but I feel it to be most impor 
 tant, for, upon the decision of this question, de 
 pends the fate of this Convention. I am sure of 
 that. If the Committee or the Convention shall 
 decide that the gentleman may proceed, I cannot 
 vote against allowing any other gentleman to pro 
 ceed ; and upon that I must stand, for one, whether 
 this Convention sit till the first of August, or the 
 first of September, or the first of October. That 
 is a reason why I am unwilling that a majority, 
 at this crisis in the history of this Convention, 
 shall say whether it shall be indefinitely pro 
 longed or not. I know the gentleman for Marsh- 
 field will relieve me from the thought of desiring 
 to do anything displeasing to him, personally, or 
 injurious to his feelings. 
 
 Mr. SUMNER, for Marshfield. I am unwil 
 ling to seem, even for a moment, to retard the 
 business of this Convention, which, from the be 
 ginning, I have sought to speed, and which, I 
 rejoice to believe, I have not perplexed by much 
 speaking. But the rule limiting debate has been 
 heretofore relaxed in favor of the chairmen of 
 Committees, when introducing their Reports, and 
 I regarded this exception as so entirely reasona 
 ble, that I did not hesitate to count upon it. The 
 
66th day.] 
 
 BILL OF RIGHTS. 
 
 377 
 
 Monday,] 
 
 SlJMNER HOPKINSON GARDNER HALLETT. 
 
 [July 25th. 
 
 Committee on the Bill of Rights is one of the 
 most important of this Convention. After twenty 
 different sessions, it has only recently brought its 
 labors to a close, and now its Report is presented 
 for your consideration. It has been charged with 
 delay. Sir, it is not obnoxious to any such 
 charge, and I desired to show that it is not. It 
 was my hope, also, in a simple way, to explain 
 the origin and character of a part of our Consti 
 tution which, at the time of its formation, was 
 regarded as second to none other in importance 
 that the Convention might appreciate the delicacy 
 with which the Committee had acted, and might 
 judge, then, not merely by what they had done, 
 but by what they had forborne to do, in the way 
 of propositions of amendment. This I owed to 
 my associates on the Committee, and also to the 
 Convention, who had a right to expect an account 
 of our labors. Had I taken the floor merely as 
 a member of the Convention, in the ordinary 
 course of debate, I should have yielded at once to 
 the slightest intimation from any quarter ; but I 
 Avas encouraged by others to feel that, in present 
 ing the Report of a Committee like that on the 
 Bill of Rights, it hardly became me to take coun 
 sel of the feelings of reserve which would have 
 controlled me as an individual. But, Sir, this 
 matter must now end. After what has passed, I 
 cannot consent to proceed. 
 
 Mr. HOPKINSON, of Boston. It seems to 
 me that there is a peculiar impropriety in enforc 
 ing the rule in this case, not only in reference to 
 the gentleman who has just taken his seat, but 
 with reference to the subject which that Com 
 mittee have acted upon I might properly say 
 subjects, for we have had before us at least half a 
 dozen subjects, and any deliberative assembly, if 
 they should attempt to decide upon them on a 
 full discussion of their merits, would have given 
 to each of them more than one day. It is impos 
 sible to do justice to any one of half a dozen mat 
 ters now before the Committee, without more 
 discussion than the rule will admit. If the rule 
 is to be insisted upon, I will inquire whether it 
 will be in order to move to take up one of these 
 subjects at a time ? They are large and compre 
 hensive subjects, embracing great principles, and 
 should be settled upon their merits. If it would 
 be in order to take up one of these subjects at a 
 time, we should still find that the rule was strin 
 gent enough for all useful purposes. 
 
 The CHAIRMAN. All these matters were 
 referred to the Committee, and it is in the power 
 of the Committee to decide in what way they 
 shall be discussed. If the Committee should so 
 decide, one would be taken up first. The ques 
 tion immediately before the Committee is the 
 
 motion to reconsider the vote whereby the 
 gentleman for Marshfield was allowed to pro 
 ceed. 
 
 Mr. GARDNER, of Seekonk. There is prob 
 ably no person in this Convention more anxious 
 than I am to bring its labors to a close. I am 
 very desirous indeed that all our business should 
 be completed, and that we may adjourn before 
 Saturday next; but I have listened with great 
 interest to the remarks of the gentleman for 
 Marshfield, and I have heard no speech in the 
 course of the session which I thought was so im 
 portant as the speech made by that gentleman ; 
 and I am very anxious that he should be allowed 
 to proceed. We might make this one exception, 
 and if gentlemen wish that the labors of this Con 
 vention should be brought to a close, I will guar 
 antee that they can be closed during the present 
 week. We can save the time between now and 
 to-morrow on the discussion of some other ques 
 tion. On many occasions I have desired to s^eak, 
 not thirty minutes, as the gentleman from Boston 
 suggested, for if I could have had the floor fifteen 
 minutes, I should have been satisfied ; but other 
 gentlemen who wished to speak, and who have 
 not used so much of the power of concentration, 
 have occupied the time, and I have myself re 
 frained, being a modest man. [Laughter.] I 
 have refrained ; and it is with a great deal of dif 
 fidence that I say this. [Renewed laughter.] 
 Now, Sir, I do not wish to have the Convention 
 consume any more time in the discussion of this 
 subject. I hope the gentleman for Berlin will 
 not press his motion to reconsider this vote, but 
 allow the gentleman for Marshfield to go on and 
 finish his eloquent speech ; and that after this the 
 rule will be enforced. I do not see any objection 
 to making this exception to the general rule ; for 
 it is said that there is no rule without an excep 
 tion ; and if ever there were any good reasons for 
 making an exception, it seems to me that there 
 are in this case. I hope, therefore, that the gen 
 tleman for Marshfield will be allowed to go on 
 and finish his speech, even if we are obliged to 
 take tea a little later than the usual hour, in con 
 sequence. 
 
 The question being then taken on the motion 
 to reconsider, on a division there were ayes, 84 ; 
 noes, 82 so the motion was agreed to. 
 
 The question then recurred on the motion that 
 Mr. Sumner be allowed to proceed ; when Mr. 
 Wilson withdrew the motion. 
 
 The question was then stated on the adoption 
 of the Report of the majority of the Commit 
 tee. 
 
 Mr. HALLETT. I desire to inquire if the 
 motion was put that these subjects be taken up 
 
378 
 
 BILL OF RIGHTS. 
 
 [66th day. 
 
 Monday,] 
 
 HALLETT HOPKINSON BRIGGS SUMNER DANA. 
 
 [July 25th. 
 
 separately ? I understood the gentleman from 
 Boston to make such a suggestion. 
 
 The CHAIRMAN. That was suggested by 
 the gentleman from Boston, but a motion was not 
 in order at that time. 
 
 Mr. HALLETT. I desire, then, to make the 
 motion if indeed I have not a right to call for a 
 division that each branch of the subject be con 
 sidered separately. In that way I suppose the 
 gentleman for Marshfield could be entitled to 
 fifteen minutes upon each resolution and each 
 amendment proposed, and he would thus have 
 an opportunity to express his views, in discussing 
 the whole subject indirectly. 
 
 Mr. HOPKINSON. I will inquire whether 
 the adoption of the motion of .my friend for 
 Wilbraham would open the whole question, so 
 that upon the various portions of the Report 
 fifteen minutes could be taken by each speaker ? 
 If so, we are opening a very wide field for debate ; 
 and it may occupy not merely one or two days, 
 but a whole week to dispose of the whole matter. 
 I should like to have the decision of the Chair 
 whether the adoption of the motion will open the 
 whole question for discussion or each separate 
 branch of it ? 
 
 The CHAIRMAN. As all these matters were 
 referred to the Committee together, the Chair is 
 of the opinion that it is but one subject, and that 
 any gentleman who wished to speak, will be 
 allowed only fifteen minutes by the rule, upon all 
 of them. 
 
 The question being then taken on the motion 
 of Mr. Hallett, it was not agreed to. 
 
 Mr. BRIGGS. I understand, Mr. Chairman, 
 that it is the right of any member to call for a 
 division of any question, where it is susceptible of 
 division ; and therefore, although we take up the 
 whole Report as one subject, each proposition 
 may be considered separately. I think if the 
 Chair will turn his attention to it, he will find 
 that this has been the rule of proceeding in all 
 cases heretofore. 
 
 The CHAIRMAN. The Chair will entertain 
 any motion that is proposed, for a division of the 
 question. 
 
 Mr. SUMNER, for Marshfield. I think that 
 the business would be expedited by taking up 
 each question by itself; and I believe that the 
 rules and orders would indicate that course. I 
 concur entirely in the remark of my friend from 
 Pittsfield, and I hope we shall take up the first 
 proposition in the Report of the majority of the 
 Committee, and consider that as open to amend 
 ment ; and when that shall have been disposed of, 
 that we shall proceed to take up the next, and the 
 next, until we dispose of the four propositions in 
 
 the Majority Report ; and that we shall then take 
 up the Minority Report and proceed in the same 
 way. 
 
 The CHAIRMAN. The Chair will state that 
 the course mentioned by the gentleman from 
 Pittsfield, is that which the Chair will adopt, un 
 less the Committee shall otherwise direct. The 
 question will be first, on the adoption of the first 
 resolve reported by the majority of the Com 
 mittee, which will be read by the Secretary. 
 
 The resolve was accordingly read, as follows : 
 
 1. Resolved, That the Bill of Rights be amend 
 ed by adding to the eleventh article, as part of the 
 same, the following words : 
 
 " And every person having a claim against the 
 Commonwealth, ought to have a judicial remedy 
 therefor." 
 
 The question being taken, the resolve was 
 agreed to. 
 
 The question was then stated on the adoption 
 of the second resolve, which was read as follows : 
 
 2. Resolved, That the Bill of Rights be amend 
 ed by inserting, between the llth and 12th arti 
 cles, the following additional article, being identi 
 cal with one now in another chapter of the Con 
 stitution, and which more appropriately belongs 
 to the Bill of Rights, viz. : 
 
 " VII. The privilege and benefit of the writ of 
 habeas corpus shall be enjoyed in this Common 
 wealth in the most free, easy, cheap, expeditious, 
 and ample manner ; and shall not be suspended 
 by the legislature, except upon the most urgent 
 and pressing occasions, and for a limited time, 
 not exceeding twelve months." 
 
 Mr. DANA, for Manchester. The Convention 
 will perceive that this article has always been in 
 the Constitution, and it is only proposed to trans 
 fer it from one place to another. I now offer an 
 amendment, to add to the article the following 
 words : 
 
 Said writ shall be granted as of right in all 
 cases where the legislature shall not specially 
 confer a discretion therein upon the court ; but 
 the legislature may prescribe preliminary proceed 
 ings to the obtaining of said writ. 
 
 I will state the reasons why I propose this 
 amendment ; and I suppose I ought to state that 
 when it was considered in Committee, I failed to 
 obtain a majority in favor of it. The Constitu 
 tion says that the privilege and benefit of habeas 
 corpus shall be obtained and enjoyed in the most 
 free, easy, cheap, expeditious, and ample manner ; 
 but in my experience, I have found it the least 
 free, easy, cheap, expeditious, and ample remedy, 
 which we have. It is the most difficult writ to 
 obtain in Massachusetts. Any man can come to 
 
66th day.] 
 
 BILL OF RIGHTS. 
 
 379 
 
 Monday,] 
 
 DANA. 
 
 [July 25th. 
 
 my office, and obtain a writ by which I can attach 
 all the property of any citizen in Massachusetts ; 
 by which I can, with an affidavit, arrest the person 
 of any man in Massachusetts, and make him obtain 
 bail to the amount of $100,000. But the writ of 
 habeas corpus is the most difficult to obtain in the 
 whole calendar of writs. This arises from cer 
 tain circumstances. In England, the writ of 
 habeas corpus is, like all other writs, issued at 
 the discretion of the courts ; at least such has 
 been the decision of the courts of England, and 
 such has been the practice. 
 
 In the Revised Statutes of the Commonwealth, 
 I find the following provisions in regard to this 
 writ : 
 
 " SEC. 1. Every person imprisoned in any com 
 mon jail, or otherwise restrained of his liberty, 
 by any officer or other person, except in the cases 
 mentioned in the following section, may prosecute 
 a writ of habeas corpus, according to the pro 
 visions of this chapter, to obtain relief from such 
 imprisonment or restraint, if it shall prove to be 
 unlawful. 
 
 " SEC. 2. The following persons shall not be 
 entitled, as of right, to demand and prosecute 
 the said writ: 
 
 " First. Persons committed for treason or felo 
 ny, or for suspicion thereof, or as accessories be 
 fore the fact to a felony, when the cause is plainly 
 and specially expressed in the warrant of com 
 mitment. 
 
 " Secondly. Persons convicted, or in execution 
 upon legal process, civil or criminal. 
 
 " Thirdly. Persons committed on mesne process, 
 in any civil action on which they were liable to 
 be arrested and imprisoned, unless when exces 
 sive and unreasonable bail is required. 
 
 " SEC. 3. Application for such writ, shall be 
 made to the court or magistrate authorized to 
 issue the same, by complaint in writing, signed 
 by the party for whose relief it is intended, or by 
 some person in his behalf, setting forth 
 
 " First. The person by whom, and the place 
 where, the party is imprisoned or restrained, nam 
 ing the prisoner and the person detaining him, if 
 their names are known, and describing them if 
 they are not known. 
 
 " Secondly. The cause or pretence of such im 
 prisonment or restraint, according to the knowl 
 edge and belief of the person applying. 
 
 " Thirdly. If the imprisonment or restraint is 
 by virtue of any warrant or other process, a copy 
 thereof shall be annexed, or it shall be made to 
 appear that a copy thereof has been demanded 
 and refused, or that for some sufficient reason a 
 demand of such copy could not be made ; and 
 
 " Fourthly. The facts set forth in the complaint, 
 shall be verified by the oath of the person making 
 the application, or by that of some other credible 
 witness ; which oath may be administered by the 
 court or magistrate to whom the application is 
 made, or by any justice of the peace. 
 
 " SEC. 4. The court or magistrate to whom such 
 complaint shall be made, shall, without delay, 
 
 award and issue a writ of habeas corpus, which 
 shall be, substantially, in the form heretofore es 
 tablished and used in this State, except in the 
 cases provided for in the following section ; and 
 shall, in all cases, be made returnable forthwith, 
 either before the supreme judicial court, or before 
 any one of the justices thereof, and at such place 
 as shall be designated in the writ." 
 
 Now, the difficulty is, that our courts, not 
 withstanding the language of the Hevised Statutes, 
 have taken upon themselves discretion in every 
 case, and issue the writ of habeas corpus only 
 where they see fit. Every person restrained of 
 his liberty with the exceptions specified may 
 prosecute a writ of habeas corpus to obtain relief. 
 " The following persons shall not be entitled as of 
 right to demand and prosecute said writ." Then 
 follows a list of four classes of persons who are 
 excepted persons confined for treason, felony, 
 &c. ; and then the statute goes on and says that 
 application shall be made to the court in a certain 
 manner, and the court before which the applica 
 tion is made " shall issue the writ without delay." 
 But, following the practice of the English courts, 
 and in apparent ignorance or disregard of our 
 statute, our courts have taken discretion in all 
 cases ; and in very many instances in which the 
 writ may be demanded as a matter of right, it is 
 refused. I do not mean to cast any imputation 
 upon our courts for this, but merely wish to have 
 the matter definitely stated in our Bill of Rights, 
 so that there may be 110 doubt or difficulty in 
 regard to it hereafter. Our courts have taken 
 upon them the right to exercise a discretion as to 
 whether a writ shall be granted upon a petition 
 presented. The court undertake to say that if, 
 upon an examination of the petition, the Avrit 
 would not be of benefit to the party, they would 
 not issue it. Now, I understand that the princi 
 ple of the writ of habeas corpus is, that the case 
 shall be decided upon the return of the writ. 
 The writ itself decides nothing. It only brings 
 the parties into court ; but the question whether 
 or not the party is to be liberated, is to be decided 
 upon the return of the writ. Now, our legisla 
 ture has said distinctly that in one class of cases 
 the writ shall be granted as a matter of right, 
 without discretion ; that in another class of cases 
 there shall be a discretion ; that is, when a person 
 is accused of treason or felony, or where he is 
 held to bail in civil actions. But, as I have 
 already remarked, our courts have held that they 
 have discretion in all cases, and undertake to say, 
 in the outset, whether the writ should issue or 
 not. That seems to me to be a violation of a 
 fundamental principle, and I desire to have a 
 provision of this kind put into the Constitution, 
 
380 
 
 BILL OF RIGHTS. 
 
 [66th day. 
 
 Monday,] 
 
 HALLETT DANA. 
 
 [July 25th. 
 
 so that it shall be beyond all doubt that the writ 
 of habeas corpus shall be a writ of right. I do 
 not mean to say that the writ should be a writ 
 of right in all cases, but that there should be some 
 exceptions ; and therefore I have suggested that 
 it should be so in all cases except where the legis 
 lature specially invests the court with a discretion. 
 I have also provided that the legislature may 
 prescribe the form of the oath, and other matters ; 
 but that where they do not specify a discretion, 
 and all the forms shall have been complied with, 
 the writ shall be granted as a matter of right. I 
 will not detain the Convention farther than to 
 express my hope that the amendment may be 
 adopted. 
 
 Mr. HALLETT, for Wilbraham. If I under 
 stand the gentleman for Manchester, his object is 
 to have the court compelled to grant the writ of 
 habeas corpus, in a case where it is perfectly 
 plain to the court that the writ should not issue ; 
 that is, if a person is held in legal custody, and 
 the evidence of it is brought before the court, 
 and the effect of the examination under the writ 
 would simply be to remand him back again 
 to jail, the court is, nevertheless, to grant the 
 writ of habeas corpus. Now it seems to me, 
 that that is utterly useless ; because the court 
 which grants the writ, has a right to deter 
 mine whether the writ shall have effect, or 
 not ; and if the court is perfectly satisfied before 
 hand, that the writ will be of no avail to the 
 party, what is the use of issuing it? What 
 possible use is there in dragging a person into a 
 court- room simply for the purpose of having him 
 sent back again to jail ? The legislature has pro 
 vided for this, in regard to every possible occasion 
 on which a man may be confined contrary to law, 
 where it becomes a writ of right, because the 
 only exceptions are in cases where the party is 
 held under some legal process. Now if a party 
 is held under a legal process, should the writ of 
 habeus corpus be allowed to issue on the petition 
 of any person who chooses to make the applica 
 tion, and who may be prepared with a force to 
 rescue a prisoner? If a man is in jail for robbery, 
 or murder, or any other offence, and application 
 is made for this writ, the only object that I can 
 see, would be a rescue. The third section of the 
 statute which the gentleman quoted, provides 
 that 
 
 "If the imprisonment, or restraint, is by virtue 
 of any warrant, or other process, a copy thereof 
 shall be annexed, or it shall be made to appear 
 that a copy thereof has been demanded and re 
 fused." 
 
 So that any judge to whom a petition may be 
 
 presented for a writ of habeas corpus sees the 
 warrant, and thereupon he determines whether 
 that is a sufficient warrant to hold the party, and 
 determines whether the writ should be issued. 
 It seems to me, that if any discretion should be 
 given to a court at all, it is precisely in a case of 
 this sort. I can see innumerable difficulties that 
 would grow out of this amendment, if adopted ; 
 more than I have time now to enumerate. 
 
 Mr. DANA. One word in reply to the gen 
 tleman for Wilbraham. If he will notice my 
 amendment, he will see that I do not say that the 
 court shall grant the writ of habeas corpus in all 
 cases. I say that where the legislature has not 
 specifically given the judges a right of discretion, 
 that then the writ may be demanded as a matter 
 of right. Now, if the legislature says that the 
 court shall exercise a discretion whenever a party 
 is imprisoned for treason, or felony, or whenever 
 a party is imprisoned on execution, or mesne pro 
 cess; in all these cases, a person will not be enti 
 tled as of right. And if the legislature should go a 
 step farther, and describe any other class of cases, 
 and say that in regard to them the court should 
 have a discretion, as a matter of course, the court 
 would exercise it. But in that class of cases in 
 which the legislature thinks they ought not to 
 have a discretion, where they think that the ex 
 ercise of discretion and delay incident to it, 
 might end in the ruin of the party praying for 
 the writ, in such cases the court must grant the 
 writ, and the gentleman for Wilbraham, (Mr. 
 Ilallett,) need be under no alarm ; for the grant 
 ing of the writ does not liberate the party, but 
 merely brings him into court. Now there are 
 many cases in which inconceivable injury may 
 be done by refusing to grant a writ. A party 
 may be carried off beyond your jurisdiction, and 
 thus be left utterly without remedy, while the 
 court is deciding the question on the petition. 
 
 In such case, unless you can have your writ 
 immediately, you will be too late. If you are to file 
 your petition, and to give notice to the opposite 
 party, and go through sundry other forms, by 
 which delay is caused, there are many instances in 
 which your case would be beyond all redress. 
 Let the legislature, therefore, say that the courts 
 shall have discretion in certain cases where the 
 public welfare requires it ; and let them leave other 
 classes of cases open, and the courts be obliged, as 
 they now are, to issue the writ. The Revised 
 Statutes are right enough now, as I understand 
 them, upon this subject ; but the difficulty is, that 
 the courts have so construed them as to make 
 them powerless. My object is to have a plain 
 provision in the Constitution, so that while the 
 discretion of the judges may be exercised in cer- 
 
66th day.] 
 
 BILL OF RIGHTS. 
 
 381 
 
 Monday,] 
 
 HALLETT SUMNER LOUD. 
 
 [July 25th. 
 
 tain cases, controllable by the legislature, there 
 shall be a general right to demand, and have the 
 benefit of this writ, as of right. 
 
 Mr. HALLETT. I do not think the gentle 
 man for Manchester states the matter exactly as 
 it stands. If I understand it, his proposition is 
 a direct proposition to enable persons on petition, 
 to take out of the hands of judicial and ministe 
 rial officers, persons who are held there by legal 
 process. Now, I contend that that cannot be 
 done without creating conflicts in jurisdiction, 
 and conflicts of officials, and endless troubles that 
 will arise. As it is now, your courts have dis 
 cretion. Does anybody suppose that the su 
 preme court of Massachusetts would not issue a 
 writ of habeas corpus in a case where a matter of 
 right was concerned, and only a possible case 
 was made out ? Nobody can suppose it. I trust, 
 therefore, that we will not disturb this matter, 
 because nothing can be plainer than the law, and 
 the construction of the courts as they now stand ; 
 and if you attempt to change them, it seems to 
 me that you at once embark upon a sea of 
 trouble. 
 
 The question was taken on the amendment, 
 and a division being demanded, there were 
 ayes, 85 ; noes, 22. 
 
 So the amendment was adopted. 
 
 The question then recurring on the resolution 
 as amended, it was adopted. 
 
 The next question was upon the third resolu 
 tion, as follows : 
 
 Resolved, That the Bill of Rights be amended 
 in the last sentence of the 29th article, by striking 
 out the words " so long as they behave themselves 
 well, and that they," and inserting, " by tenures 
 established by the Constitution, and " ; also, by 
 striking out the words " ascertained and estab 
 lished by standing laws, " and inserting, " which 
 shall not be diminished during their continuance 
 in office," so that the whole sentence, as amended, 
 shall read as follows : 
 
 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 office by tenures 
 established by the Constitution, and should have 
 honorable salaries, which shall not be diminished 
 during their continuance in office. 
 
 The resolution was agreed to,, 
 
 The next resolve was then read, as follows : 
 
 4. Resolved, That the Bill of Rights be amended, 
 by inserting between the 29th and 30th articles, 
 the following additional article : 
 
 This enumeration of rights shall not impair 
 others retained by the people, and no powers 
 shall ever be assumed by the legislature, that are 
 not granted in this Constitution. 
 
 Mr. HALLETT, for Wilbraham. I would in 
 quire if the Chair has the original bill before him, 
 as reported by the Committee, as my understand 
 ing of the article was, that the word " expressly " 
 should come in before the word " granted." In 
 the printed copy that word appears to be left out. 
 
 The CHAIRMAN. The Chair would inform 
 the gentleman that he read the article from the 
 original bill, as reported by the Committee. 
 
 Mr. HALLETT. Then I move to insert the 
 word " expressly, " after the words " are not ; " 
 so that the latter part of the article shall read, 
 " and no powers shall ever be assumed by the 
 legislature, that are not expressly granted in this 
 Constitution." 
 
 Mr. SUMNER, for Marshfield. I do not under 
 stand that the resolution passed the Committee, 
 in the shape in which it is proposed to be amend 
 ed by the gentleman for Wilbraham. The res 
 olution as it came from the Committee, was in a 
 different form. It was " this enumeration of 
 rights shall not impair others retained by the 
 people, and no powers shall ever be assumed by 
 the legislature, that are not granted in this Con 
 stitution." And now it is proposed, as I under 
 stand, by the gentleman for Wilbraham, to insert 
 the word " expressly" before the word " granted," 
 and I understand him, farther, to suggest that it 
 passed the Committee in that form. 
 
 Mr. HALLETT. What I said, was, that I, 
 and other gentlemen of the Committee, so under 
 stood it. That was my express understanding of 
 it ; but in being copied from the book of minutes 
 it became altered, and the word " expressly " 
 omitted. I am very sure it was meant to be 
 there. 
 
 Mr. SUMNER. The Report was made up 
 from the records of the Committee. My impres 
 sion is, that the matter was discussed in the Com 
 mittee whether the word " expressly" should be 
 inserted, and a large majority were inclined 
 against it ; and, it seems to me, this Convention 
 would make a mistake if they now undertake to 
 go so far as to say that the legislature shall have 
 no powers that are not expressly granted in this 
 Constitution. There must be implied powers 
 connected with legislation, and with every legis 
 lative body. 
 
 Mr. LORD, of Salem. I do not exactly un 
 derstand the gentleman for Wilbraham, as to his 
 amendment, whether it is meant as a side cut to 
 Hoosac, because if the legislature cannot grant 
 any authority whatever, except such as are ex 
 pressly granted by the Constitution, we must put 
 into the Constitution a word in favor of Hoosac, 
 or it will not go. [Laughter.] 
 
 Mr. HALLETT. The phraseology of this reso- 
 
382 
 
 BILL OF RIGHTS. 
 
 [66th day. 
 
 Monday,] * 
 
 HALLETT LORD WILSON NEWMAN. 
 
 [July 25th. 
 
 lution is, that " the legislature shall assume no 
 powers." Now, if this Convention mean any 
 thing by this resolution that " the legislature 
 shall assume no powers that are not granted by 
 this Constitution," they mean powers that shall 
 be expressly granted, like the terms "public 
 good " and " general welfare." That power is 
 expressly granted. The implication under that 
 power is a different proposition. The legislature 
 are not at all limited in relation to powers granted 
 in the Constitution, but they are limited expressly 
 to powers granted. If you say " powers granted 
 in this Constitution," why then you assume still 
 other things, a higher, or a general power, which 
 may be there without being exactly granted by 
 the Constitution. If I understand anything of 
 republican doctrine, it is opposed to all implied 
 powers. We go for express powers. I do not 
 say that the legislature shall do no act not ex 
 pressly granted in the Constitution, but the 
 amendment of the Committee is, that the legisla 
 ture shall exercise no power not granted, and 
 my amendment proposes to say " not expressly 
 granted." 
 
 Mr. LORD, of Salem. I desire to ask the 
 gentleman for Wilbraham, whether he means 
 that the words " general welfare" is an express 
 delegation of any power which the legislature 
 chooses to consider as being exerted for the gene 
 ral welfare ? 
 
 Mr. IIALLETT. It is an express grant of a 
 general power, and the power goes just as far as 
 expressed in that grant. 
 
 Mr. LORD. And just as far as the legislature 
 chooses to consider that it goes, under the phrase 
 " general welfare "? 
 
 Mr. IIALLETT. No, Sir ; that is a different 
 question. That is a state to which the gentleman 
 desires to get to have a legislature with all 
 powers an omnipotent legislature. I do not 
 think the people of this Commonwealth desire to 
 have it so understood ; and therefore I want to 
 put this beyond the possibility of a question. If 
 you mean anything by the phrase " not granted 
 in this Constitution " you mean " not expressly 
 granted." And what does that mean? Why, 
 that which is not expressed in the Constitution. 
 
 Mr. WILSON, of Natick. It seems to me 
 that this whole resolution, which is proposed to 
 be put into the Constitution, is of very little value 
 indeed, and of little importance. And now 
 the gentleman for Wilbraham, (Mr. Hallett,) pro 
 poses to amend even this, which I take to be of 
 very little value ; for the legislature, under the 
 provisions of the Constitution, which authorizes 
 them to do such things as will promote the gene 
 ral welfare, and under other general terms, can 
 
 do very many things, and I do not believe that it 
 is of the slightest consequence to put this resolu 
 tion into the Constitution. But, nevertheless, I 
 am willing to assent to its insertion into the or 
 ganic law, but not with the word " expressly " in 
 it. I think if that is inserted, we shall have 
 trouble enough in the future to carry on the gov 
 ernment of the State. I see no necessity for the 
 amendment, and I hope the Convention will not 
 indorse it. 
 
 Mr. BRADFORD, of Essex. I call for a di 
 vision of the question. 
 
 Mr. SUMNER. The question is upon adopt 
 ing the word " expressly." 
 
 Mr. BRADFORD. I ask for a division of the 
 question when it is taken upon the resolution, 
 and move that the question upon the latter clause 
 of the resolve be taken by yeas and nays. 
 
 The CHAIRMAN. The motion is not strictly 
 in order now, as the question pending is upon 
 the motion to amend, made by the gentleman for 
 Wilbraham. 
 
 Mr. HALLETT. I will relieve gentlemen 
 from the trouble of voting upon my amendment. 
 There is but little of strict construction in this 
 Convention, and I am very apprehensive that we 
 shall have a " general welfare " clause put in 
 stronger than it is in the old Constitution, and I 
 fear that we may lose what there is there, by gen 
 tlemen whom I thought were inclined to hold the 
 legislature to some powers, and to make a power 
 of attorney for them, by which we should give 
 them to understand what we mean shall be their 
 duties. But I see that the purpose is to make a 
 Constitution, and then let the legislature do as 
 they please. To avoid the possibility of such a 
 result, and being very desirous to have some re 
 striction upon the powers of the legislature, I 
 withdraw the amendment, hoping thereby to be 
 able to save the rest. 
 
 Mr. NEWMAN, of Bolton. I believe I can 
 not vote for the proposition reported by the Com 
 mittee, without some explanation. It appears to 
 me that the resolve is entirely useless, as was 
 remarked by the gentleman from Natick, (Mr. 
 Wilson). The fourth article of section first, of 
 chapter first, of the Constitution, it appears to me, 
 confers general powers upon the legislature. It 
 not only gives general powers, but it makes the 
 government one not of special rights, but of gen 
 eral powers entirely. The end accomplished by 
 the resolve appears to me to be useless, unless we 
 alter the phraseology of the fourth article. 
 
 I move to amend by striking out the words 
 " This enumeration of rights shall not impair 
 others retained by the people ; and no powers 
 shall ever be assumed by the legislature that are 
 
66th day.] 
 
 BILL OF RIGHTS, &c. 
 
 383 
 
 Monday,] 
 
 BRADFORD WILSON LORD STEVENSON. 
 
 [July 2oth. 
 
 not granted in this Constitution," and insert in 
 lieu thereof the words : " We declare that every 
 thing in this Bill of Rights is excepted out of the 
 general powers of the government, and shall for 
 ever remain inviolate," so that the resolve shall 
 read : 
 
 4. Resolved, That the Bill of Rights be amended, 
 by inserting between the twenty-ninth and thir 
 tieth articles the following additional article : 
 
 We declare, that everything in this Bill of 
 Rights is excepted out of the general powers of 
 the government, and shall forever remain inviolate. 
 
 The question was then taken upon the amend 
 ment of the gentleman from Bolton, (Mr. New 
 man,) and it was decided in the negative. 
 
 So the amendment was not agreed to. 
 
 The question then recurring upon the adoption 
 of the resolve as reported by the Committee, 
 
 Mr. BRADFORD, of Essex, renewed his call 
 for a division of the question. 
 
 The question was accordingly first taken upon 
 the first clause of the resolution, viz. : " This 
 enumeration of rights shall not impair others re 
 tained by the people," and was decided in the 
 affirmative ; and then the question upon the 
 second clause, viz. : " and no powers shall ever 
 be assumed by the legislature, that are not granted 
 in this Constitution," and it was decided in the 
 affirmative. 
 
 So the resolution as reported by the Committee, 
 was adopted. 
 
 Mr. WILSON, of Natick. Here is a series of 
 resolutions reported in different documents of the 
 Convention, all from the Committee on the Bill 
 of Rights. Cannot the Committee rise and 
 report these resolves to the Convention, and have 
 them acted upon, and ask leave to sit again upon 
 the other propositions ? 
 
 The CHAIRMAN. The Chair thinks that 
 might be done. 
 
 Mr. WILSON. Then I make the motion that 
 the Committee rise and report these resolves as 
 amended, to the Convention, with a recommend 
 ation that they do pass, and ask leave to sit again 
 upon the other resolutions which have not been 
 acted upon. 
 
 The question was taken, and the motion was 
 agreed to. 
 
 The Committee accordingly rose, and 
 
 IN CONVENTION, 
 
 The chairman of the Committee of the Whole, 
 Mr. Schouler, reported that the Committee had 
 had under consideration resolves relating to the 
 Bill of Rights, and had instructed him to report 
 the same to the Convention, with an amendment, 
 with a recommendation that they do pass, and to 
 
 ask leave to sit again upon other resolves not 
 yet acted upon. 
 
 Leave was granted to sit again. 
 
 The question first being upon agreeing to the 
 amendment to the second resolve, as reported 
 from the Committee of the Whole, it was put and 
 decided in the affirmative. 
 
 So the amendment was agreed to. 
 
 The question being then upon the adoption of 
 the resolves as amended, 
 
 Mr. LORD, of Salem, said : I suppose it is 
 desirable upon so important a subject as the Bill 
 of Rights, to have the question taken separately 
 upon each resolve. 
 
 The PRESIDENT. The Chair would suggest 
 that there is another stage in the passage of the 
 resolves. 
 
 Mr. LORD. There is the difficulty. There is 
 a first stage, and there we are not allowed to de 
 bate, and when we arrive at the second stage, they 
 won t let us debate, because there was a first stage 
 
 The PRESIDENT. Does the gentleman ask 
 for a division of the resolution ? 
 
 Mr. LORD. I move that the farther consid 
 eration of these resolves, be assigned for to-mor 
 row morning, at- ten o clock. 
 
 Mr. HAL LETT. I second that motion. 
 
 The question was taken, and the motion was 
 agreed to. 
 
 Justices of the Peace. 
 
 Mr. STEVENSON, of Boston, from the Special 
 Committee to whom was referred the resolves in 
 relation to justices of the peace, reported back the 
 resolves and amendments in a new draft, as fol 
 lows : 
 
 Resolved, That it is expedient to amend the 
 Constitution so as to provide that 
 
 1. Trial Justices shall be elected by the legal 
 voters of the several towns and cities where, at 
 the time of such election, there is no police court 
 established by law, who shall hold their offices 
 for a term of three years. 
 
 Every such city or town shall elect one such 
 Justice, and may elect one additional for each two 
 thousand inhabitants therein, according to the 
 next preceding decennial census. 
 
 They shall have the same jurisdiction, powers 
 and duties, as are now exercised by Justices of 
 the Peace, which jurisdiction, powers and duties, 
 may be changed by the legislature : provided, that 
 no Trial Justice shall act as such upon his ceasing 
 to reside in the town in which he was elected. 
 
 2. Justices of the Peace, Justices of the Peace 
 and Quorum, Justices of the Peace throughout 
 the Commonwealth, and Commissioners to qualify 
 civil officers, may be appointed by the Governor 
 and Council for a term of seven years ; and those 
 now in office shall continue therein according to 
 the terms of their respective commissions : pro- 
 
384 
 
 THE JUDICIARY, &c. 
 
 [67th day. 
 
 Tuesday,] 
 
 MIXTER BARTLETT BUTLER. 
 
 [July 26th. 
 
 vided, that the jurisdiction of all such justices 
 shall not extend to the hearing or trial of any 
 causes, or the issuing of warrants in criminal 
 cases. 
 
 3. Justices and Clerks of the police courts of 
 the several cities and towns of the Common-wealth, 
 shall be elected by the legal voters thereof, for a 
 term of three years. 
 
 4. In case of vacancy by resignation, or other 
 wise, of any State, County, or District officer, 
 excepting members of the legislature, whose elec 
 tion is provided for in the Constitution, and whose 
 term of office does not expire at the next annual 
 election, the Governor shall issue his warrant to 
 the mayors and aldermen of the several cities, 
 and the selectmen of the several towns, to fill the 
 vacancy at the next annual election after it shall 
 have happened ; and the Governor, with the ad 
 vice and consent of the Council, may appoint 
 suitable persons to fill such vacancies until an elec 
 tion by the people. 
 
 Mr. STEVENSON moved that the resolves be 
 laid upon the table, and printed. 
 
 The motion was agreed to. 
 
 On motion of Mr. BREED, of Lynn, at six 
 o clock forty- five minutes, the Convention ad 
 journed. 
 
 TUESDAY, July 26, 1853. 
 
 The Convention assembled pursuant to ad 
 journment, and was called to order by the Presi 
 dent pro tempore> at nine o clock. 
 
 Prayer by the Chaplain. 
 
 The journal of yesterday was read. 
 
 Distribution of Books. 
 
 Mr. MIXTER, of New Braintree, introduced 
 the following order : 
 
 Ordered, that the Clerk of each of the towns in 
 this Commonwealth that have not sent a delegate 
 to this Convention, shall receive, for the use of 
 the town, one copy of the Constitutions of the 
 United States, and one copy of the Debates of the 
 Massachusetts Convention of 1820. 
 
 Mr. MIXTER. I introduced this order, Sir, 
 at the recommendation of some of the towns 
 which are not represented in this Convention. It 
 will be seen that those towns which are repre 
 sented, will be provided for through their delegates ; 
 but those which are unrepresented, do not possess 
 the same facility for obtaining copies of these 
 Constitutions. I consider that they are valuable 
 to each one of the inhabitants of every town, and 
 particularly so as books of reference. There are 
 many towns, as is well known, which, though 
 not through any neglect of theirs, are not repre 
 
 sented in this Convention. These towns, I think, 
 are as much entitled to these books as any other 
 towns are ; and for these reasons, and at their 
 request, I ask the passage of this order. 
 
 Mr. WESTON, of Duxbury, desired that the 
 order be laid over until to-morrow. 
 
 The order, accordingly, in obedience to the 
 rule, lies over for consideration to-morrow. 
 
 Orders of the Day. 
 
 On motion of Mr. BUTLER, of Lowell, the 
 Convention proceeded to the consideration of the 
 Orders of the Day, the first subject on the Orders 
 being the resolve introduced by the gentleman 
 from Lowell, (Mr. Butler,) on the subject of 
 
 Judicial Tenure of Office. 
 The resolve was read, as follows : 
 
 Resolved, That all judicial commissions which 
 shall issue to any person from and after the first 
 day of August, in the year one thousand eight 
 hundred and fifty- three, shall confer no greater 
 tenure of office than the term of ten years. 
 
 The question being on its final passage. 
 
 Mr. BARTLETT, of Boston. I should be 
 glad if the gentleman from Lowell would explain 
 to us the purpose of this proposition. 
 
 I will put a case to the gentleman ; a case 
 which would be one of some embarrassment, I 
 think : Suppose before this Constitution, which 
 we are now forming, goes into effect and it can 
 not do so until after it shall have been voted upon 
 by the people, in November next, or at such time 
 as may be fixed suppose, in the interim, an ap 
 pointment of a judge is made, and a commission 
 issues. In what form will that commission be ? 
 Shall it be in the alternative ? Shall the appoint 
 ment be for life, unless the alternative be accept 
 ed ? And I submit to the gentleman from Lowell, 
 whether the object to be attained, makes it worth 
 while to put into the Constitution a fragmentary 
 provision of this description. I hope it will not 
 be made a part of our fundamental law. 
 
 Mr. BUTLER. I endeavored to explain the 
 reasons why I introduced this resolve, at the time 
 I offered it, but owing to the limitation of time by 
 our rules, I only partially succeeded. We have 
 agreed that all judges to be appointed here 
 after, shall hold their office for the term of ten 
 years. We have also provided that the present 
 judges shall retain their office according to the 
 tenors of their commission. Now, it is evident 
 that this Constitution cannot go into effect until 
 sometime hence, say the first of January, and 
 there will be five months intervening, when, 
 without intimating that any wrong will be done, 
 
67th day.] 
 
 THE JUDICIARY. 
 
 385 
 
 Tuesday,] 
 
 BUTLER DAWES BARTLETT WALKER. 
 
 [July 2Gth. 
 
 many of the judges may die, and young men 
 whom we do not now think. of, may be put in 
 their places, who will, of course, hold their office 
 for life. It is merely for the purpose of reaching 
 all such cases, that I have introduced this resolu 
 tion. Almost every one is agreed as to what is 
 its intent and force ; but the gentleman from Bos 
 ton finds two difficulties. He asks : How shall 
 the commissions issue under these circumstances ? 
 I reply, they will issue just as they do at the 
 present time. The governor does not know 
 whether this Constitution will go into effect ; he 
 acts under the present Constitution, and officially 
 knows nothing of the changes which have been 
 made, until the Constitution we are now amend 
 ing has been accepted by the people. It therefore 
 has no binding force whatever upon him. I 
 submit it to the legal opinion of the gentleman, 
 that if we should say nothing about the judges, 
 and make no provision for them, whether the 
 commissions they at present hold will not expire 
 immediately upon the adoption of the new Con 
 stitution, whether those commissions were granted 
 ten, or fifty years ago ? To prevent such an oc 
 currence, we have provided that they shall not 
 expire during their good behavior. So that I 
 do net see that we can do any harm by carrying 
 out what is the intention of the Convention. All 
 that the governor has to do is to issue the com 
 missions under the old Constitution, and then the 
 Convention says that the commission shall have a 
 ten years tenure. 
 
 Now it has been said that this had better not be 
 done ; that it is not of sufficient consequence to 
 be put into the fundamental law. Sir, if every 
 man would do just as he ought, we should be in 
 no need of a Constitution, of a law, or of judges ; 
 but unfortunately, it has been found since the 
 days of Adam, that men will not do as they ought ; 
 and, consequently, need the restraint and guid 
 ance of some rule and law. Now, if nobody 
 would die, if I could be insured that nobody 
 would resign between the present time and the 
 time when this Constitution will, if adopted, go 
 into effect, I would not have introduced this reso 
 lution. But I do not wish that the whole judi 
 ciary of the State shall be changed in five months, 
 and their places filled by young and inexpe 
 rienced men, who will be fastened on us for 
 life ; especially when I find it authoritatively pro 
 claimed by one of the governor s council, in a 
 paper which he edits called the North Adams 
 Transcript, that the only qualification for the 
 office of judge of probate, is that he should be " a 
 live young Whig." It is the official expression 
 of one of the governor s council, published in the 
 Transcript, and indorsed by the Atlas. 
 
 26 3 
 
 Mr. DAWES, of Adams. Will the gentleman 
 permit me to ask him a question ? 
 
 Mr. BUTLER. A thousand, Sir. 
 
 Mr. DAWES. I would inquire whether he 
 would prefer to have a dead old fogy, or a live 
 young Whig ? [Laughter.] 
 
 Mr. BUTLER. I explained that the other 
 day. A live young Whig grows naturally into a 
 dead old fogy. One is the green sapling, the 
 other is the dry old tree. [Laughter.] 
 
 I will not detain the Convention longer, how 
 ever. I introduced the resolution for the pur 
 poses I have already stated, and it has received 
 the sanction and support of the most eminent 
 legal gentlemen of this body. 
 
 Mr. BARTLETT. Then the result is about 
 this : The gentleman from Lowell desires, in ma 
 turing this provision, to cover the least possible 
 point of time. I would not say that I do not 
 think that consideration so valuable or important 
 as to make it worth while to take so much pains 
 to accomplish it. The strongest argument, how 
 ever, in favor of this provision, seems to be the 
 probable abuse of political power. Now, Sir, if 
 the history of the Commonwealth furnishes 
 ground for an allegation of that sort, then the 
 proposition of the gentleman is a proper and wise 
 one. But, Sir, I hardly think any gentleman 
 here will undertake to show that any such dan 
 ger exists ; and I hope, therefore, that the provi 
 sion we have adopted upon this subject, shall 
 remain where it is. 
 
 Mr. WALKER, of North Brookfield. I de 
 sire to inquire of the gentleman from Lowell, 
 whether he intends this provision to be inserted 
 as a part of the Constitution r 
 
 Mr. BUTLER. Certainly I do. The resolve 
 cannot mean anything else. 
 
 Mr. WALKER. I made the inquiry because 
 the resolve is not put in the usual form. It does 
 not state that the Constitution shall be so amend 
 ed, but it is merely a resolve by the Convention. 
 
 Mr. BUTLER. I will accept the gentleman s 
 suggestion, and so modify the resolve. I did not 
 know that it was necessary, like the Dutchman s 
 picture of a horse, to write over it to show that 
 it was a horse. I thought every- body understood 
 what it meant. I do not know what else the 
 Convention have to do, but to amend the Consti 
 tution. 
 
 Mr. WALKER. I merely suggested that the 
 resolve was not in the usual form. 
 
 Mr. BUTLER. I accept the gentleman s 
 amendment. 
 
 Mr. DAWES, of Adams. I am glad my 
 friend from Lowell, (Mr. Butler,) has ascertained 
 the authorship of that newspaper article to which 
 
386 
 
 THE JUDICIARY. 
 
 [67th day. 
 
 Tuesday,] 
 
 DAWES HILLARD CADY. 
 
 [July 26th. 
 
 he alluded. I am glad that he is not disposed to 
 detract from its merits, by charging it upon me, 
 as he did the other day. 
 
 I was a little surprised, however, to hear the 
 gentleman object to the appointment of that 
 judge of probate on account of his being a live 
 young Whig, and because I thought the gentle 
 man himself belonged to the "Young America" 
 party. I had heard the gentleman say so much, 
 heretofore, about old fogies, that his speech the 
 other day, and again this morning, has set me to 
 wondering whether he has not, by a death- bed 
 repentance, become an old fogy himself. But 
 now the trouble is, that he is afraid a live young 
 Whig will grow into an old fogy. Now, Sir, 
 although I had nothing to do with the article 
 alhided to, yet I am disposed to stand by it, and, 
 if nothing worse can be found against that ap 
 pointment, than that it is of " a live young 
 Whig," to believe that it will prove a good one. 
 But 1 submit, in all candor, whether it is worth 
 while to put an article into your Constitution, 
 about this matter, because a country newspaper 
 has seen fit to give a reason for the appointment 
 of a judge of probate that does not suit the 
 gentleman from Lowell ? I submit that is hardly 
 of sufficient importance to be made the ground of 
 a constitutional provision. If my friend from 
 Lowell cannot find graver reasons for bringing 
 forward constitutional provisions, it seems to me 
 it is very much like trifling with the Constitu 
 tion. I have no objection to the gentleman s 
 being satisfied, and I think there is a fair chance 
 of satisfying us all. For one I shall be satisfied, 
 and I presume my friend from Lowell will be as 
 much so, if we have appointed to the bench of 
 the supreme court of Massachusetts, and to a 
 seat on the bench of the other courts, men quali 
 fied, in every respect, to discharge the duties of 
 the office, whether they be old fogies or live 
 young Whigs. That is all I seek for, and, I pre 
 sume, is all the gentleman is seeking for. 
 
 But, I submit farther, whether it is worth while 
 to arraign an individual upon this floor, who can 
 not come in and defend himself? I would ask 
 the gentleman from Lowell, whether it is a mark 
 of that courage which stands out, like the phy 
 lacteries of old, upon the brow of the gentleman 
 assuming to be a leader of this Convention, to 
 hunt up, for attack, men who are absent at the 
 safe distance of one or two hundred miles, and 
 make onslaught upon them in this Convention ? 
 It seems to me, that if no other consideration 
 would deter from such a course, our time has 
 become too precious. If we wish to go upon 
 such errands, there will be an opportunity after 
 the Convention has adjourned. 
 
 Mr. HILLARD, of Boston. The gentleman 
 from Lowell, (Mr. Butler,) did me the honor to 
 consult me, before submitting this proposition to 
 the Convention. I said to him, as I say now, 
 that I think it is no more than the legitimate right 
 of the majority if they choose to insist upon it. 
 It is in the nature of a provision against a remote 
 contingency ; but if the majority of the Conven 
 tion choose to adopt such a provision, I must say, 
 that they are fairly entitled to do so. The Con 
 vention, here and now, have determined that the 
 commissions of the judges shall run for ten years, 
 instead of during good behavior. Thus far it 
 may be considered as an expression of the will of 
 the people, whom we represent. But the people, 
 in their primary capacity, will pass upon this 
 change. I hope that they will reject it. If they do, 
 that ends the whole matter ; this provision in 
 cluded. If they do not, we must consider it to 
 be the will of a majority of the people of Massa 
 chusetts, that their judges shall hold their com 
 missions for ten years, and no more. To that 
 expression of their will, when made, I shall bow 
 with submission. In that event, I think that it is 
 a right of the majority now, and here, to provide 
 that the decision of the people in November, if 
 favorable to their doings, shall have a retroactive 
 effect, so as to cover the interval between the 
 action of the Convention and the action of the 
 people ; so that no commission issued in the 
 meantime, shall be upon a tenure to which their 
 wishes are opposed. I think it would be an un 
 fair advantage gained by such party as might be 
 in power during such an interval, if a life com 
 mission were issued. 
 
 This measure is analogous to a well known 
 legal proceeding. We often attach real estate 
 on the issuing of a writ. By that attachment, 
 the estate is held in abeyance, as it were, until 
 the final decision of the cause. If the plaintiff 
 fail to obtain judgment, the attachment ceases, 
 and the estate is released. If he do obtain judg 
 ment, the attachment transfers the title. Now, 
 our vote upon the judicial tenure, is analogous 
 to the attachment of real estate on mesne pro 
 cess. Whether we are to have judgment or not, 
 depends upon the popular vote in November. 
 But, in the interval, the majority of the Con^en- 
 tion have a right to be in the position of the 
 plaintiff, in such a suit. They have a right to 
 say that the commissions of the judges shall be 
 in abeyance in the interval before final judgment. 
 Mr. CADY, of Monson. I am opposed to the 
 adoption of the resolve before the Convention. I 
 can see no reason for its adoption. Suppose a 
 vacancy should occur in the mean time, before 
 the adoption of the Constitution, under what law 
 
67th day.] UNIFORMITY OF RECEIVING VOTES, &c. 
 
 387 
 
 Tuesday,] 
 
 MORTON BUTLER BRIGGS DUNCAN. 
 
 [July 26th. 
 
 would the appointment to fill it, be made ? What 
 would be the duty of the governor, whose busi 
 ness it is to make the appointment ? What would 
 be the tenure of office ? I submit that it could 
 not be left indefinite. It must be either that 
 provided by the old Constitution, or it must be 
 under that which we are now framing. Sir, this 
 Constitution cannot take effect until the people 
 have ratified it ; and therefore, appointments 
 made before that time, must be made under the 
 present Constitution. Now, to make a provision 
 changing the commissions of officers thus ap 
 pointed, it seems to me is, to all intents and pur 
 poses, an ex post facto law. It seems to me that 
 this provision is entirely uncalled for ; and unless 
 I can see some reason other than those which have 
 been thus far presented, I shall vote against it. 
 [Cries of " Question !" " Question !"] 
 The question was then taken, and the resolve 
 ordered to its final passage. 
 
 Motion to go into Committee. 
 
 Mr. MORTON, of Taunton. There is a sub 
 ject upon yoxir calendar, in Committee of the 
 Whole, which is of some considerable importance, 
 and which has remained there for some time. I 
 presume it will not occupy any considerable time 
 in its consideration, but I desire that it shall be 
 taken up and disposed of. It has by some means 
 been jostled out of its place, so that other subjects 
 which were behind it in their order, have taken 
 precedence of it in their consideration. I now 
 move that the Convention resolve itself into Com 
 mittee of the Whole, upon the resolves on the 
 mode of submitting the question of representation 
 to the people. 
 
 Mr. BUTLER. If the gentleman from Taun 
 ton will pardon me for a moment, there are two 
 subjects which it is very necessary the Com 
 mittee on Revision should have before them at 
 the earliest possible moment. It will require but 
 a very short time to dispose of them, and then the 
 gentleman can accomplish his object. I hope he 
 will allow these to be disposed of first. 
 
 Mr. MORTON. I would inquire if it is not 
 also important to have this subject disposed of, 
 and whether this may not go to the Committee 
 on Revision as well as anything else ? 
 
 Mr. BUTLER. This is an independent sub 
 ject ; but those to which I have referred, are so 
 interwoven with other sub ects that the Com 
 mittee 011 Revision can hardly proceed with their 
 work upon those other subjects, until these are 
 disposed of by the Convention. 
 
 Mr. BRIGGS, of Pittsfield. I am very anx 
 ious that the gentleman from Taunton, (Mr. 
 Morton,) should accomplish his object; but I 
 
 would say in support of the suggestion of the 
 gentleman from Lowell, (Mr. Butler,) that it is 
 exceedingly necessary that these subjects should 
 go to the Committee on Revision. I would sug 
 gest, therefore, that the gentleman from Taunton 
 should waive his motion for the present, with the 
 understanding that when these subjects are dis 
 posed of, his matter shall come up next. 
 
 Mr. MORTON, of Taunton. If I could be 
 assured that such was the general understanding, 
 I would waive my motion for the present. I 
 have tried on several occasions to bring the sub 
 ject before the Convention, but have hitherto 
 failed. But with the understanding that it shall 
 come up sometime in the course of the day, I 
 will withdraw my motion. 
 
 On motion of Mr. BUTLER, of Lowell, the 
 Convention then resolved itself into 
 
 COMMITTEE OF THE WHOLE, 
 
 Mr. Nayson, of Amesbury, in the chair, and 
 proceeded to the consideration of the resolve sub 
 mitted by Mr. Duncan, of Williamstown, upon 
 the subject of 
 
 Uniformity of Receiving Votes. 
 
 The resolve was read by the Secretary, as fol 
 lows : 
 
 Resolved, That the Constitution ought to be 
 amended so as to make the provisions for receiv 
 ing, assorting, counting, and recording of votes, 
 uniform in the election of all officers whose elec 
 tion is provided for in the Constitution. 
 
 Mr. DUNCAN, of Williamstown. Mr. Chair 
 man : Called as we are to amend the Constitu 
 tion, it becomes our duty to make it as perfect an 
 instrument as the language will admit. It is to 
 be the chart by which the political navigators are 
 to steer the ship of state ; it is, therefore, neces 
 sary that the directions be simple, plain, and in 
 telligible. And for the purpose of giving greater 
 precision to one of its departments, I introduced 
 the resolve for making an uniform provision for 
 the receiving, assorting, and counting of votes, in 
 all elections provided for in the Constitution. If 
 gentlemen will turn to chap. 1, sec. 2, art. 2, 
 they will find it the duty of the selectmen to re 
 ceive, assort, and count the votes, in the presence 
 of the town clerk, who shall make a fair record of 
 the same, in the presence of the selectmen ; and 
 now, if we turn to chap. 2, sec. 1, art. 3, we 
 shall find it to be the duty of the selectmen, as in 
 the first instance, to receive and assort the votes, 
 but the duty of the town clerk to count them, 
 and make a fair record of the same, in presence 
 of the selectmen. I admit that a difference so 
 
388 
 
 JUSTICES OF THE PEACE, &c. 
 
 [67th day. 
 
 Tuesday,; 
 
 DUNCAN LELAND ELY BOUTWELL BUTLEH. 
 
 [July 2Gth. 
 
 trifling as this seems to be, would not be a suffi 
 cient reason for calling a Convention to amend 
 the Constitution ; but since it has been taken in 
 pieces, and the separate parts in our hands, I see 
 no reason why each part may not be perfected as 
 far as \\ e are able to do so, that when it is again 
 joined, it shall be as perfect as a whole as it is in 
 any of its parts. The Constitution has been con 
 sideredand justly, too a work of great merit 
 and perfection ; but not as perfect as to be entirely 
 free from that species of blunders which has lately 
 been styled Bunsbyisms ; for instance, in chap. 1, 
 sec. 1, it reads thus : " The legislative body shall 
 assemble on the first Wednesday in January, and 
 at such other times as they shall judge necessary, 
 and shall dissolve and be dissolved on the day 
 next preceding the said first Wednesday in Janu 
 ary," &c. By this provision, a dissolution of the 
 legislature is made obligatory at least one day be 
 fore it meets. I suppose this error crept in 
 through the loose use of the words "said" and 
 "aforesaid"; they are words of great repute in 
 the legal profession, and have a magisterial sound 
 in professional documents, but are not quite 
 adapted to constitutional perspicuity. And 
 again, in chap. 1, sec. 3, it reads : " Every 
 member of the House of Representatives shall 
 be chosen by written votes, and for one year at 
 least next preceding his election, shall be an 
 inhabitant within the town he shall be chosen to 
 represent, and shall cease to represent the said 
 town immediately on his ceasing to be qualified 
 as aforesaid." 
 
 So uncertain was the language, in its meaning, 
 that it was necessary to resort to an opinion of 
 the supreme court to ascertain what intention the 
 framers of the Constitution had in view when 
 they adopted that section. If it be important that 
 we have a Constitution, it becomes equally im 
 portant that we have one that can be understood 
 by every person without the intervention of a 
 judicial opinion ; if we cannot do it, then I opine 
 that our constituents made a mistake in sending 
 us here to meddle with the old one. 
 
 For myself, I desire it to go forth as free from 
 doubt and uncertainty as any human Constitution 
 can be. And to bring it right home to the peo 
 ple, I hope the time is coming when it will be 
 published in our school books, that the children 
 of this Commonwealth may early learn its pro 
 visions, and estimate the worth of such an ad 
 dition to our school literature. 
 
 The question was taken, and the resolve was 
 agreed to ayes, 117 ; noes, 35. 
 
 On motion of Mr. EARLE, of Worcester, the 
 Committee then rose, and the President having 
 resumed the chair of 
 
 THE CONVENTION, 
 
 The chairman reported that the Committee of the 
 Whole, to whom had been referred the resolution 
 in relation to the manner of sorting and counting 
 votes, had had the same under consideration, and 
 had instructed him to report the same, with a re 
 commendation that it pass. 
 
 The PRESIDENT. The question is upon or 
 dering the resolution to a second reading. 
 
 Mr. LELAND, of Holliston. We have here 
 tofore introduced a resolution, that state and 
 town officers may be elected by secret ballot. 
 This resolve says : " that the Constitution ought to 
 be amended so as to make the provisions for receiv 
 ing, assorting, counting, and recording of votes, 
 uniform in the election of all officers whose election 
 is provided for in the Constitution." It seems to 
 me, if we adopt that resolve, we shall get into 
 difficulty, as it will conflict with a provision 
 which we have already adopted. 
 
 Mr. ELY, of Westfield. It seems to me this 
 matter is well understood . throughout the Com 
 monwealth, and a change would make the matter 
 much worse than it was before. I therefore move 
 an indefinite postponement of the whole matter. 
 
 Mr. BOUTWELL, for Berlin. I think that 
 the motion of the gentleman from Westfield (Mr. 
 Ely) ought to be sustained by the Convention. 
 I think that the existing provisions are perfectly 
 plain, and generally well understood. There 
 may be some difference of opinion as to the mode 
 of receiving, counting, and recording votes for the 
 different officers who are to be elected by the 
 people. Whatever those modes are, they are well 
 understood. I think this provision will operate 
 in conflict with some provisions which have al 
 ready passed the Convention. In addition to 
 that,!the Committee on Revision have made Con 
 siderable progress. Some of their work is in the 
 hands of the printer ; but the passage of this res 
 olution, so far as I understand it, will throw a 
 considerable part of it into confusion. This Com 
 mittee have as much work as they can possibly 
 do, and we should not throw upon them any un 
 necessary work. I believe the passage of this 
 resolution is unnecessary, that it will lead to a 
 great amount of labor in the Committee, and will 
 be of no possible benefit to the people. 
 
 The question was taken upon Mr. Ely s mo 
 tion, and it was agreed to. 
 
 So the resolution was indefinitely postponed. 
 
 Election of Justices of the Peace. 
 
 Mr. BUTLER, of Lowell. I move that the 
 Report of the Special Committee upon Justices of 
 the Peace, be taken from the table. 
 
67th day.] 
 
 JUSTICES OF THE PEACE. 
 
 389 
 
 Tuesday,] 
 
 BUTLER. 
 
 [July 26th. 
 
 The motion was agreed to. 
 
 Mr. BUTLER. I now move that the rule by 
 which it is required that this subject shall be re 
 committed to a Committee of the Whole, be sus 
 pended, and that the resolve be considered at this 
 time. 
 
 The motion was agreed to. 
 
 The Report of the Select Committee was then 
 read, as follows : 
 
 Resolved, That it is expedient to amend the 
 Constitution so as to provide that 
 
 1. Trial Justices shall be elected by the legal 
 voters of the several towns and cities where, at 
 the time of such election, there is no police court 
 established by law, who shall hold their offices for 
 a term of three years. 
 
 Every such city or town shall elect one such 
 Justice, and may elect one additional for each two 
 thousand inhabitants therein, according to the 
 next preceding decennial census. 
 
 They shall have the same jurisdiction, powers, 
 and duties, as are now exercised by Justices of the 
 Peace, which jurisdiction, powers, and duties, 
 may be changed by the legislature : provided, that 
 no Trial Justice shall act as such upon his ceasing 
 to reside in the town in which he was elected. 
 
 2. Justices of the Peace, Justices of the Peace 
 and Quorum, Justices of the Peace throughout the 
 Commonwealth, and Commissioners to qualify 
 civil officers, may be appointed by the Governor 
 and Council for a term of seven years ; and those 
 now in office shall continue therein, according to 
 the terms of their respective commissions : pro 
 vided, that the jurisdiction of all such justices 
 shall not extend to the hearing or trial of any 
 causes, or the issuing of warrants in criminal 
 cases. 
 
 3. Justices and Clerks of the police courts of the 
 several cities and towns of the Commonwealth, 
 shall be elected by the legal voters thereof for a 
 term of three years. 
 
 4. In case of vacancy by resignation, or other 
 wise, of any State, County, or District officer, ex 
 cepting members of the legislature, whose election 
 is provided for in the Constitution, and whose 
 term of office does not expire at the next annual 
 election, the Governor shall issue his warrant to 
 the mayors and aldermen of the several cities, 
 and the selectmen of the several towns, to fill the 
 vacancy at the next annual election after it shall 
 have happened ; and the Governor, with the ad 
 vice and consent of the Council, may appoint 
 suitable persons to fill such vacancies until an 
 election by the people. 
 
 Mr. BUTLER, of Lowell. In the absence of 
 the chairman of this Committee, I will simply 
 state that these resolves were reported with en 
 tire unanimity by the Committee, as regards all 
 the details. Two gentlemen of the Committee, 
 who are well known to be opposed to an elective 
 judiciary in any form, opposed the election of 
 trial justices, and justices of the police court. 
 
 With that exception, the entire details were ar 
 ranged with perfect unanimity by the Committee. 
 The first resolution provides, as will be seen : 
 
 Trial Justices shall be elected by the legal 
 voters of the several towns and cities where, at 
 the time of such election, there is no police court 
 established by law, who shall hold their offices 
 for a term of three years. 
 
 Every such city or town shall elect one such 
 justice, and may elect one additional for each two 
 thousand inhabitants therein, according to the 
 next preceding decennial census. 
 
 They shall have the same jurisdiction, powers, 
 and duties, as are now exercised by Justices of the 
 Peace ; which jurisdiction, powers, and duties, 
 may be changed by the legislature : provided, that 
 no Trial Justice shall act as such upon his ceasing 
 to reside in the town in which he was elected. 
 
 The proviso contained in the last clause, is to 
 prevent a man getting elected as justice in one 
 town, and then moving into another town where 
 he could not have been elected, to carry on the 
 business of a justice of the peace. An amend 
 ment was offered here in Convention yesterday, 
 and favored by some gentlemen, that trial justices 
 should have jurisdiction only in the towns where 
 they were elected. There would be infinite mis 
 chief arising from such a provision. Suppose, for 
 instance, that a trial justice of the town is sick. 
 Then no other trial justice having jurisdiction in 
 that town, if there should be robbery, theft, or 
 murder, the offender must go un whipped of justice, 
 because there is nobody to try him, until that 
 trial justice gets well. Suppose, in a civil case 
 the trial justice should be interested, or one of the 
 parties interested in the suit, should be a brother, 
 father, cousin, or some other relative of the 
 justice. There would be nobody in that event, 
 to try the case, because there is no jurisdiction. I 
 might enumerate other cases, showing the mis 
 chief which would arise from the adoption of 
 such an amendment. 
 
 The second clause provides as follows, that 
 
 Justices of the Peace, Justices of the Peace and 
 Quorum, Justices of the Peace throughout the 
 Commonwealth, and Commissioners to qualify 
 civil officers, may be appointed by the Governor 
 and Council for a term of seven years ; and those 
 now in office shall continue therein according to 
 the terms of their respective commissions : pro 
 vided, that the jurisdiction of all such justices 
 shall not extend to the hearing or trial of any 
 causes, or the issuing of warrants in criminal 
 cases. 
 
 This provision leaves these officers to take 
 acknowledgment of deeds, to marry people, to 
 administer oaths, to take depositions, hear cases of 
 jail delivery, to issue warrants for parish and 
 
390 
 
 JUSTICES OF THE PEACE. 
 
 [67th day. 
 
 Tuesday,] 
 
 BUTLER EA.K.LE. 
 
 [July 26th. 
 
 town meetings, to stay rioters, and to do various 
 other things which have heretofore attached to 
 this ancient and honorable office of the justice of 
 the peace. Some gentleman here have contended 
 that every justice should have the power to issue 
 warrants. I can give you an illustration of how 
 the thing would work. Justices of the peace 
 having an opportunity to issue warrants, go to 
 work and get up cases, so that they may have all 
 the business they want. This thing has been done 
 in one case. It might be done again ; and, there 
 fore, it was thought best to take that power away. 
 The third clause reads as follows : 
 
 Justices and Clerks of the Police Courts of the 
 several cities and towns of the Commonwealth, 
 shall be elected by the legal voters thereof for a 
 term of three years. 
 
 Mr. EARLE, of Worcester. I wish to make 
 an inquiry of the gentleman, whether, by the 
 Constitution, trial justices have the same powers 
 with justices of the police courts ? If I understand 
 it rightly, they do not, and by acts of legislature 
 establishing some police courts, they have not the 
 same power. 
 
 Mr. BUTLER. I thank the gentleman for 
 calling my attention to this matter. Police jus 
 tices are not known .as such by the Constitution, 
 but have been included under the term of judicial 
 officers. Police courts have been established in 
 various towns, and they have everywhere been 
 given the powers and jurisdiction of justices 
 of the peace, with a single exception, and that is 
 in the city of Worcester, which was omitted by 
 a mistake in framing the act. I believe I speak 
 correctly. I know that in Salem, Newburyport, 
 Lawrence, Lowell, and in Boston, police justices 
 have the same jurisdiction to try causes in the 
 county, that justices of the peace have ; but by a 
 mistake in the act of the legislature, those officers 
 in the city of Worcester have jurisdiction only 
 over crimes committed in that city. It is better 
 that the legislature should provide a remedy for 
 this single case, than to make any provision for it 
 in the Constitution, as the difficulty can be easily 
 remedied. We were fortunate enough to have 
 upon the Committee a gentleman from Worcester, 
 (Mr. Chapin,) who had that thing in mind, and 
 who agrees in the view which we have taken of 
 this matter. These justices and clerks of the 
 police court are judicial officers of the same class 
 as trial justices, and it was thought best by a ma 
 jority of the Committee, that they should be 
 elected as trial justices are, and upon that ques 
 tion only, was there any division of opinion upon 
 the part of the Committee. The Committee fol- 
 1 owcd out what they conscientiously believed to 
 
 be the true rule in regard to the election of jus 
 tices of this character. 
 
 In regard to the resolutions contained in docu 
 ment No. 104, which were submitted to us, the 
 Committee agreed that it was best to strike out 
 the second resolution, which reads as follows : 
 
 2. Resolved, That it is expedient so to amend 
 the Constitution, that the Governor may remove 
 any officer in the former resolves of this Commit 
 tee mentioned, within the term for which he shall 
 have been elected, giving such officer a copy of the 
 charges against him, and an opportunity of being 
 heard in his defence. 
 
 It was stricken out entirely, because it would 
 seem to give the governor the power to remove 
 every officer in the Commonwealth, from the at 
 torney-general down. 
 
 The fourth resolution, corresponding to the 
 third in the Report of the Committee, Document 
 104, we reported with a slight amendment. 
 
 In case of vacancy by resignation, or other 
 wise, of any State, County, or District officer, 
 excepting members of the legislature, whose elec 
 tion is provided for in the Constitution, and 
 whose term of office does not expire at the next 
 annual election, the Governor shall issue his war 
 rant to the mayors and aldermen of the several 
 cities, and the selectmen of the several towns, to 
 fill the vacancy at the next annual election after 
 it shall have happened ; and the Governor, with 
 the advice and consent of the Council, may ap 
 point suitable persons to fill such vacancies until 
 an election by the people. 
 
 This was done so that where there is an elective 
 officer, such as county commissioner, for instance, 
 or district- attorney, who shall be elected for three 
 years, and die in the middle of the first year, the 
 governor might issue his warrant at the next an- 
 uual election, to make an election to fill the 
 vacancy, and in the mean time, might appoint 
 some one to take the place. That prevents the 
 calling of the people too frequently to make an 
 election, and at the same time secures the ends of 
 justice. 
 
 There was a slight doubt in the minds of some 
 gentlemen, as to whether the clerks of the district 
 court were county officers, or the justices ; and in 
 order to do away with that doubt, we propose to 
 amend by inserting after the word, " officer," the 
 words, "and clerks or justices aforesaid." That 
 will settle the question, without any farther 
 trouble ; for it struck the Committee, that there 
 might be some sharp person who would find that a 
 clerk of a district court was neither a district nor a 
 county officer, and then there might be a ques 
 tion how he could be reappointed in case of a 
 vacancv. The addition of the words which we 
 
67th day.] 
 
 JUSTICES OF THE PEACE. 
 
 391 
 
 Tuesday," 
 
 BUTLER SIMONDS HUNTINGTOX DUNCAN. 
 
 [July 26th. 
 
 propose, will cover the case, both of the justices 
 of the police court, and trial justices. 
 
 Now, one thing farther. One gentleman seemed 
 to have the belief that there was no way of re 
 moving a justice of the peace. I agree with him. 
 I have defended before legislative committees, two 
 or three justices of the peace, and I have prose 
 cuted one or two in my time, and I can only 
 repeat what I said the other day, that the ma 
 chinery seemed like a sledge-hammer for killing 
 a musquito. It never seemed to hit him. You 
 cannot remove a justice of the peace. A gentle 
 man observed, that the people remove the trial 
 justices once in three years ; and they are subject 
 to impeachment for any gross outrage besides. 
 The people will take care of that. The justices of 
 the peace have little or nothing to do but to marry 
 persons, and they cannot do that without their 
 consent, so that they cannot do much mischief. 
 We leave that as it is. I have to beg pardon for 
 so imperfect an explanation of these matters, as 
 the duty devolved on the chairman of the Com 
 mittee. 
 
 Mr. SIMONDS, of Bedford. I wish to inquire 
 of the delegate from Lowell, whether in the 
 enumeration of the powers of the second class of 
 justices of the peace, they are prohibited from 
 issuing warrants in civil actions ? 
 
 Mr. BUTLER. The issuing of a writ, Mr. 
 President, if I understand it, is only an incident 
 to the power to try. He cannot issue a writ re 
 turnable before anybody else, and if he cannot 
 try the case himself, the writ which he issues will 
 be as innoxious as a last year s almanac ; it will do 
 no harm to anybody. I think, that if we take 
 away the power to try and determine a case, we 
 take away the power to issue a writ. 
 
 Mr. HUNTINGTON, of Northampton. I 
 would suggest, that there seems to me to be a very 
 material omission here. Supposing these resolu 
 tions to be adopted by the people, obviously under 
 the first resolution some time must elapse before 
 the trial jiistices can act in that capacity. The 
 second resolution provides, that the jurisdiction of 
 all other justices of the peace, shall be taken 
 away. Now, it seems to me there will be an in 
 terregnum, a time between the adoption of this 
 amendment, or the ratification of it by the peo 
 ple, and the election of the trial justices, so that 
 there will be no one to issue warrants for the trial 
 of criminals. I do not see why the jurisdiction 
 cf the justices of the peace is not taken away ac 
 cording to the phraseology of the second resolu 
 tion ; and I see no manner in which a criminal can 
 be tried in the mean time between the adoption of 
 the Constitution, and the election of trial justices. 
 The second resolution provides, as follows : 
 
 Justices of the Peace, Justices of the Peace 
 and Quorum, Justices of the Peace throughout 
 the Commonwealth, and Commissioners to qualify 
 civil officers, may be appointed by the Governor 
 and Council for a term of seven years ; and those 
 now in office shall continue therein according to 
 the terms of their respective commissions : pro 
 vided, that the jurisdiction of all such justices 
 shall not extend to the hearing or trial of any 
 causes, or the issuing of warrants in criminal 
 cases. 
 
 The provision is, then, that they shall have no 
 power to issue a warrant after the adoption of this 
 amendment. It seems to me there should be a 
 clause extending the jurisdiction of the present 
 justices, until the the trial justices shall be elected. 
 
 Mr. DUNCAN, of Williamstown. Mr. Presi 
 dent : I wish to make an inquiry. I wish to 
 ask, if at this juncture, a motion to strike out 
 and insert, would be in order ? 
 
 The PRESIDENT. It would. 
 
 Mr. DUNCAN. Then I move to strike out 
 of this Report all after the words " Resolved, that 
 it is expedient," and insert the following resolu 
 tion : " That justices of the peace shall be elected 
 by the legal voters in the several towns and cities, 
 as may be hereafter determined by law." Among 
 the reasons which induce me to offer this substi 
 tute for the Report of the Committee, is, that it 
 simplifies the proposed amendment, and avoids 
 the misconstruction which must necessarily fol 
 low the introduction of so cumbersome an article 
 into the Constitution. A short time since, it was 
 urged as an objection to the passage of a report, 
 that its length implied a prodigal waste of money 
 and paper, which the economizing people would 
 reject on the ground of waste. If that argument 
 was entitled to any consideration then, it cer 
 tainly applies with greater force now. Again, 
 it is in the nature of a compromise, when none 
 was called for, or desired ; and instead of getting 
 just what every one wants, a hybrid has been 
 engendered which bears no very striking resem 
 blance to either dam or sire. It reminds me of 
 a schism which took place among the Quakers a 
 few years since, with regard to the personal 
 appearance of his satanic majesty, one party 
 believed him to have horns, and the other, that he 
 was amooley ; so the horns, and the no horns battled 
 each other in a gallant, but unquaker like man 
 ner, till at last it was obvious that the matter 
 must be settled, or the society ruined ; so they 
 agreed to a compromise. They settled it by 
 voting that the devil was an unicorn ; a creature 
 which neither party loved or wanted, but was 
 infinitely better than being foiled by an opponent. 
 It is pretty much so in this case ; if this Report 
 is adopted, we shall have what no one precisely 
 
392 
 
 JUSTICES OF THE PEACE. 
 
 [67tli day. 
 
 Tuesday,] 
 
 DUNCAN WATERS. 
 
 [July 26th. 
 
 wants, and all the consolation we shall have, 
 will be the satisfaction of a compromise. 
 
 It will be remembered, Sir, that not many 
 years since, the legislature passed an act author 
 izing the governor to appoint trial justices, and 
 so repugnant was that act to the people, that the 
 following legislature repealed it almost without 
 debate. It was urged that none but partisans 
 were appointed ; and so notoriously true was it, 
 that a trial justice was looked upon as a common 
 nuisance ; some exceptions of course, but this 
 was the general feeling. And now, shall we pro 
 ceed deliberately to reenact a law which was 
 repudiated so soon after its passage, and to perpetu 
 ate the same, by making it a finality ? It is a 
 reasonable presumption, that in all small towns 
 entitled to but one trial justice, his political 
 stripe will correspond with the local dominant 
 party, and the evil heretofore complained of will 
 be increased. The minority will look upon such 
 justices with suspicion ; and how can it be other 
 wise ? for, in the heat of political contests, ani 
 mosities will be engendered, which will follow 
 the justice in his judicial proceedings, and 
 whether he decides right or wrong, complaint 
 will be made that he leaned to, or from, accord 
 ing to the bias of client or magistrate ; and the 
 courts of justice will be looked upon as an inqui 
 sition for political martyrdom. And, besides, it 
 makes an invidious distinction between the jus 
 tices of the peace, which seems to be entirely 
 uncalled for and unnecessary. I submit it to 
 gentlemen, that it is much better to allow the 
 people to regulate this matter themselves, than to 
 propose any half way measure, and give them the 
 alternative of that, or nothing. This lleport 
 proposes but one trial justice in a town ; and, an 
 additional one depends upon the contingency of 
 numbers. Is it not perfectly obvious that this 
 provision will lead to great practical difficulties, 
 which gentlemen from large towns seem to en 
 tirely overlook. A justice of the peace is not 
 a polypus, but a being possessed with the powers 
 of locomotion; it will often happen, therefore, 
 that he will be absent from home, and some 
 times will be prevented through inability, to 
 attend to his judicial duties. Under such cir 
 cumstances, those who seek justice, at law, will 
 be compelled to migrate from one town to another, 
 till they succeed in overtaking some wandering 
 justice, or, in finding some legal fixture. Another 
 difficulty suggests itself ; many small towns have 
 two or three villages within its borders, and often 
 at a distance from each other ; and inasmuch as 
 there can be but one trial justice in the town, 
 there will be a strife as to which village shall have 
 him. I can assure you that a justice of the 
 
 peace in a small country town, is no inconsider 
 able personage, and the little village which is 
 fortunate enough to have the sqidrc within its 
 limits, will naturally enough exalt itself above 
 its less favored rivals. This will lead to animosi 
 ties, and I have no hesitation in saying, that in 
 all such towns and there will be many this 
 provision in the Constitution will be an unfortu 
 nate one. 
 
 I am decidedly in favor of the proposed amend 
 ment with perhaps a modification, if it should 
 meet the views of the Convention and it is this : 
 " That no town shall have less than one justice 
 of the peace," and leave it entirely with the 
 inhabitants of the towns to elect as many as they 
 choose. I have not the least doubt but the 
 people can choose men from their midst, to 
 administer justice, much more to their satisfac 
 tion than can be appointed by the governor ; and 
 there is not the least danger that they will elect 
 more than they want, or less than is necessary. 
 The safest course, in my estimation, is, to let 
 them regulate this question as to how many jus 
 tices they will have, and I opine that the people 
 have too much good sense to suffer inconvenience, 
 when they have the power to adjust the number 
 of justices to meet their necessities. 
 
 Mr. WATERS, of Millbury. The mover of 
 the amendment now under consideration, Mr. 
 Duncan, of Williamstown, has said that these 
 resolutions providing for the election of justices of 
 the peace by the people, were not called for by the 
 people. In that remark, he may speak for his 
 constituents, but he certainly does not for mine. 
 Doubtless, to members representing cities and 
 farming districts, this subject seems to be one of 
 minor importance, and to occupy altogether too 
 much time of the Convention. But I assure all 
 such members, that in some districts, especially in 
 manufacturing districts, there is no subject before 
 us which excites a deeper or more general interest. 
 
 The office of justice of the peace, though limit 
 ed in powers and subordinate in jurisdiction, is 
 one of the most important in the Commonwealth. 
 He stands in the nearest relation to the people of 
 any judicial officer, and in criminal matters, has 
 jurisdiction to a certain extent over all the per 
 sons and property of his county. Before him the 
 accused, whether innocent or guilty, are usually 
 first arraigned before his court, any person is 
 liable at any moment to be summoned to appear, 
 either as principal or witness, and for failure 
 thereof to be committed for contempt of court. 
 
 This office, like that of sheriff, is one of the 
 most ancient known to common law. Originally 
 they were chosen in England by the people, from 
 the most sufficient knights, esquires, and lords of 
 
67th day.] 
 
 JUSTICES OF THE PEACE. 
 
 393 
 
 Tuesday,] 
 
 WATERS. 
 
 [July 26th. 
 
 the realm, and two or three to each county only 
 were allowed. Then, to be an " esquire" in old 
 England, was an honor worth possessing, and 
 history informs us that they were mostly noble 
 champions of popular rights. But at length, one 
 of England s tyrants, King Edward II., finding 
 these esquires unsubmissive to his sovereign will, 
 wrested from the people the power of their elec 
 tion, and vested it in the crown ; and there, in the 
 crown of England, it has remained full five hun 
 dred years, to the present hour. Copying from 
 the institutions of England, we have vested the 
 power of appointing these officers also in the ex 
 ecutive. As a natural consequence, the number 
 of commissions granted, has been vastly in 
 creased, and the dignity of the office immensely 
 degraded from its ancient estate. A commission 
 is -anted to nearly all who apply, to many gra 
 tuitously, without regard to their qualifications ; 
 and the whole number now holding commissions 
 throughout the State, is about five thousand. 
 As might be expected, from such an army of 
 executive appointments, many very unsuitable, 
 and some perfectly unscrupulous and desperate 
 persons have been appointed, and clothed with 
 magisterial powers over the persons and property 
 of their fellow-citizens. Such persons usually 
 regard the office not so much as one of honor, as 
 of private emolument a means by which they 
 are to get their living out of the public, at some 
 rate or another. With this view, they readily 
 issue their warrants upon all applications, how 
 ever frivolous, and at the instigation of personal 
 malice, it may be, on the part of the complainant. 
 By a natural law, action produces reaction, 
 parties are formed, new difficulties and new 
 issues spring up, and the result is a bountiful 
 crop of law-suits, which destroys the peace and 
 happiness of the community around ; and while it 
 impoverishes the clients, fills the pockets of the 
 magistrate. Thus, an officer of this stamp, es 
 pecially if to his other qualifications be added 
 that of pettifogger, as sometimes happens, will 
 manage to keep a whole community in constant 
 commotion, and boiling like a cauldron year in 
 and year out, and that, too, under the sacred but 
 prostituted forms of law and justice. Such a 
 magistrate, though professing to act as a keeper of 
 the peace, is really the greatest disturber of the 
 peace a piece of injustice a social sliver which 
 keeps up a constant irritation around, and there 
 can be 110 peace until he is withdrawn from his 
 position. By him the temple of justice is con 
 verted into a mill to grind clients and exact toll. 
 I recollect an instance where a peace-loving citizen 
 was committed to jail by one of these dogberrys, 
 for contempt of court, because he refused to 
 
 proceed in a criminal action after it was all settled ; 
 and when he applied to counsel for relief, they 
 told him there was no remedy, for every magis 
 trate was supreme judge in his own court, as to 
 matters of contempt of court. So true it is that 
 
 "Man, proud man! 
 Dressed in a little brief authority ; 
 Most ignorant of what he s most assured, 
 Plays such f .ntas ic tricks before high Heaven 
 As make the angels weep." 
 
 In the practice of a justice, nothing requires a 
 more careful discrimination and sound judgment, 
 than to decide when to issue, and when to refuse 
 to issue his warrants ; for it is clearly as much his 
 duty in some cases to withhold, as in others to 
 grant them. 
 
 A young man of my acquaintance, once went 
 to a justice, in high excitement, for a warrant to 
 arrest one with whom he had difficulty. The 
 justice heard his story told him to go home, 
 sleep upon it one night, and come to him the 
 next morning. Pie did so, and at once exclaimed, 
 " I thank you, Sir, and I thank God, that my 
 request last evening was not granted ; for if it had 
 been, I should have been embroiled in a quarrel 
 which might have lasted during my life. Now 
 it is all settled, and we are good friends !" 
 
 What a different result would have ensued, 
 had he applied to a justice of the stamp above 
 described. 
 
 Various attempts have been made to remove 
 justices of the peace, and though in some instances 
 the most gross fraud, corruption, oppression, and 
 malpractice of various kinds were fully proved, 
 yet no one has ever been removed under our 
 present Constitution, owing to an ambiguity in 
 its provisions as to the manner of removing them, 
 one construction being by address the other 
 by impeachment. One of the most remarkable 
 cases of this kind, will be found reported at length 
 in Senate Document, 1850, No. 10L From this, 
 it appears that the citizens of one of the interior 
 towns of the State, finding their peace and quiet 
 constantly disturbed by petty justice courts, and 
 feeling aggrieved by the oppressive decisions of 
 the magistrate, sent to the legislature a petition 
 containing thirty- five distinct allegations, signed 
 by a majority of the voters of the town, and 
 praying for an investigation. This petition was 
 presented in the Senate, and referred to a prelimi 
 nary committee, to report what court of investi 
 gation the Constitution required. This committee 
 decided to proceed by address, and recommended 
 the appointment of a joint committee of the Senate 
 and House, consisting of nine. Such a committee 
 was accordingly appointed, of whom the honorable 
 member from Adams, (Mr. Dawes,) was chairman. 
 
394 
 
 JUSTICES OF THE PEACE. 
 
 [67th day. 
 
 Tuesday,] 
 
 WATERS CHAPIX. 
 
 [July 26th. 
 
 After a very long protracted trial, in which about 
 one hundred and fifty witnesses were examined, 
 and eminent counsel were heard on both sides, 
 the committee unanimously reported that most of 
 the allegations were sustained that the respond 
 ent had been commissioned as justice of the peace 
 fifteen years, during which he had collected a vast 
 many fines, not one dollar of which had he paid 
 over to the State, as the law required, but appro 
 priated the whole to his own use. Also, that in 
 some cases he had acted both as magistrate and 
 counsel, and received fees for services in both ca 
 pacities that he had used his office for gambling, 
 and otherwise conducted in a manner calculated 
 to bring the government and laws into disrepute 
 among the people. Whereupon the committee 
 unanimously adopted the form of an address to 
 his excellency, the governor, to remove said 
 justice from office. When the report came up 
 for consideration in the Senate, a distinguished 
 member of that body, no w on the supreme bench 
 of this State, arose and opposed its adoption, on 
 the ground that justices of the peace were not 
 removable by address ; and while he conceded 
 fully that the respondent ought to be removed, 
 yet his regard for the Constitution would not 
 allow him to see it perverted for that purpose. 
 Thus, the wishes, feelings, and interests of the 
 petitioners, and the arduous labors of that com 
 mittee, involving an expense to the State and 
 others of at least two thousand dollars, were all 
 baffled, and fell to the ground, merely from a de 
 fect in our present Constitution ; and yet some 
 members contend that it needs no amendment. 
 If, with such a strong case, the attempt to re 
 move failed, it may well be conceded that no 
 attempt can ever succeed. Several others have 
 been made, but they have all proved alike abor 
 tive. 
 
 In this regard, compare our government with 
 the executive of the United States. When a new 
 administration comes into power, the president 
 sweeps by the board secretaries, treasurers, for 
 eign ministers, collectors and postmasters, by the 
 thousand all at one fell swoop ; and that, too, 
 not because they are dishonest, incapable, or un 
 faithful, but simply because they do not agree 
 with him in political sentiment. 
 
 But here in Massachusetts, there is not power 
 enough in either the executive, judicial, or legis 
 lative departments of government, or in all com 
 bined, with an expenditure of thousands of 
 dollars, to turn out a petty justice of the peace for 
 the most outrageous frauds, corruptions, and op 
 pressions, committed for fifteen years ! Such 
 imbecility on the part of any government is cal 
 culated to bring it into disrespect and contempt 
 
 among the people. It has been said with more 
 truth than poetry, 
 
 " For forms of government let fools contest, 
 That which is best administered, is best." 
 
 The adoption of the resolutions now before us 
 will remove most of the evils of the existing sys 
 tem. They reduce the term of office to three 
 years, and make the incumbents elective by the 
 people. The people must be supposed to be better 
 judges of the qualifications of candidates than his 
 excellency, who was perhaps never within the 
 purviews of the town where they reside. They 
 will be careful to select those who have least in 
 ducements to promote litigation, and in whose 
 integrity and sound judgment they have full con 
 fidence. This litigation will be checked, both in 
 the number of suits instituted, and in the number 
 of appeals taken. Finally, the office will be re 
 stored to its pristine dignity and honor among 
 the people. 
 
 Mr. CHAPIN, of Worcester. I rise to say one 
 word in relation to our police courts, upon which 
 subject I find a difficulty in the minds of some 
 members of the Convention. There is an act, 
 passed in 1852, which provides that 
 
 "The several police courts in the Common 
 wealth may exercise all the powers and perform 
 all the duties given to and required of Justices of 
 the Peace, by the laws of this Commonwealth, in 
 and for the several counties in which said courts 
 are respectively located." 
 
 Now this resolution leaves these courts pre 
 cisely as they are, without any change whatever. 
 It leaves the matter of the police courts in Wor 
 cester County, and in the other counties, pre 
 cisely where it should be. In reference to the 
 motion which is already made, I have simply to 
 say, that I hope the amendment will not be 
 adopted. It seems to me that this resolution pro 
 vides, justly and properly, for the wants of the 
 community. The only complaint which has been 
 made in the section of country where I reside, 
 grows out of the judicial jurisdiction of j ustices 
 of the peace. There is and has been no complaint 
 in regard to their ministerial duties. Men have 
 been appointed, have undertaken to try cases, 
 have interfered with their neighbor s property and 
 liberty, who were utterly incompetent to perform 
 the sacred duties which belong to the office of 
 justice of the peace. All we ask, and all the peo 
 ple wish, is, that those officers who are to exercise 
 these duties, which are so important to the citi 
 zens of the several towns, should be elected by the 
 people of those towns ; and although I, for one, 
 do not agree to the doctrine of electing judicial 
 
67th day.] 
 
 JUSTICES OF THE PEACE. 
 
 395 
 
 Tuesday,] 
 
 LORD DAWES BUTLER. 
 
 [July 26th. 
 
 officers when their decisions are to be final, yet 
 in this case I will agree to it. I will go farther, 
 and say that I wish this Convention had power 
 to amend the Constitution of the United States 
 in regard to the election of postmasters. Officers 
 of that kind, who are brought into such intimate 
 relations with the people of the several towns, 
 should be elected by the people. I think we 
 have provided here for precisely what we want ; 
 and here, as in all other cases, I wish to have our 
 acts as free as possible from doubt and uncer 
 tainty. 
 
 Mr. LORD, of Salem. I wish to submit an 
 amendment or two, which I will now state. I 
 should like to amend the first resolve by striking 
 out the words " are now exercised by," and in 
 serting the words "now have," after the word 
 " peace," and also by striking out the words 
 " which jurisdiction, powers, and duties, may be 
 changed by the legislature," so that, as amended, 
 that clause will read as follows : 
 
 They shall have the same jurisdiction, powers, 
 and duties, as justices of the peace now have : 
 provided, that no trial justice shall act as such 
 upon his ceasing to reside in the town in which 
 he was elected. 
 
 The reason suggested by my friend from An- 
 dover, yesterday, in relation to this change, that 
 the legislature might have power to diminish the 
 jurisdiction, seems to me not a valid reason for 
 retaining this phraseology, because the power to 
 change is the power to enlarge, as well as the 
 power to diminish. I see no constitutional ob 
 jection, if that phrase is put there, to the legis 
 lature s providing, to put an extreme case, for the 
 trial of the very highest offences by a justice of 
 the peace, who should preside over a jury. I 
 think the legislature have not had power to make 
 the justice of the peace any different officer from 
 what the office was understood to be at the time 
 of the adoption of the Constitution an office of 
 inferior jurisdiction and which could not be 
 changed, the office being established and recog 
 nized by the Constitution. 
 
 Mr. DAWES, of Adams. I want to ask the 
 gentleman from Salem, if he will permit me, 
 whether, since this Constitution was adopted, the 
 legislature have not granted or conferred power 
 on justices of the peace to preside at jury trials ? 
 
 Mr. LORD. I think the legislature has con 
 ferred power on them to bring in six men, in 
 certain cases, as referees. The gentleman for 
 Wilbraham, the other day, told us that we had 
 improved our institutions which we brought over 
 here from England. Here is an illustration of it : 
 the trial by jury is so changed that we now have 
 
 three men, or six men, instead of twelve. But, 
 Sir, I never believed that six men made a jury. 
 When the Constitution says that the right of trial 
 by jury shall be preserved, it means a jury of 
 twelve men, not a jury of six men, or of three 
 men, cr two men, or one man. Calling in three 
 or four men does not make them a jury, according 
 to the good old ideas of the common law. If the 
 law providing what is called a jury of six, had 
 made the decision of those six final, and allowed no 
 appeal to a real constitutional jury, composed of 
 twelve men, I should not hesitate at all to say 
 that such provision was unconstitutional. There 
 was no more right to reduce a jury to six men, 
 than to one man. 
 
 Mr. DAWES. I would like to be permitted 
 to ask the gentleman another question. Will he 
 tell me whether, at the time the Constitution was 
 adopted, a justice of the peace had the right to 
 demand of a pedlar whether he had a license ? 
 
 Mr. LORD. I think it was competent for the 
 legislature, if they chose, to put that power \ipon 
 them. 
 
 Mr. DAWES. That does not answer my ques 
 tion. I understood the premises of the gentleman 
 to be, that the legislature could not confer any new 
 power, except that which j ustices of the peace had 
 at the time when the Constitution was formed. 
 I understand that there has been a course of legis 
 lation ever since the Constitution was adopted, 
 which had the effect to change or diminish the 
 powers of justices of the peace. I understand 
 that to have been the course of legislation ; it may 
 have been all wrong. The gentleman can, per 
 haps, answer me, as in relation to justices of the 
 peace, he thinks the jury trials with six men are 
 unconstitutional. 
 
 Mr. LORD. I did not say that it was an un 
 constitutional provision to make what is called a 
 jury, with six men. I said that it would be un 
 constitutional if you made their jurisdiction final ; 
 and if, in a suit involving more than twenty dol 
 lars, you could have no other tribunal than this 
 six- men jury. 
 
 Mr. BUTLER. If the gentleman will permit 
 me, I will ask him a question upon that subject. 
 I should like to have him tell me whether the 
 legislature did not pass a practice act, by which a 
 jury of twelve men could be summoned by a 
 justice of the peace in a case of forcible entry and 
 detainer a jury of twelve men a jury in every 
 sense of the word, equal in number to the twelve 
 apostles. 
 
 Mr. LORD. I am not responsible for an act 
 which the legislaure passed in 1851, and repealed 
 again in 1852. I do not propose to consider that 
 at all. And in answer to the suggestion of the 
 
396 
 
 JUSTICES OF THE PEACE. 
 
 [67th day. 
 
 Tuesday,; 
 
 LOUD DAWES. 
 
 [July 26th. 
 
 gentleman from Adams, I did not say that no 
 change whatever could have heen made by the 
 legislature no duties could have been imposed. 
 What I said, or what I meant to say, at any rate, 
 was, that the judicial jurisdiction of justices of the 
 peace could not be elevated by the legislature into 
 the higher judicial duties, such as devolve, for 
 example, upon the supreme judicial court. My 
 proposition was this : that by this proposition, in 
 asmuch as you say in your Constitution, by ex 
 press words, that the jurisdiction may be changed, 
 and do not confine it to subjects of like nature, 
 you may give justices of the peace any jurisdiction 
 that you choose, provided you keep within the 
 provision of the United States Constitution, and 
 the Bill of Rights in our own Constitution, if that 
 be saved to us, that they shall not have any juris 
 diction against trial by jury. But I have no 
 time to discuss that point now. 
 
 I want to suggest, also, the propriety of strik 
 ing out the words " the issuing of warrants in 
 criminal cases." This is a matter which ought 
 to be amended by law. Take all those cases in 
 which there are police courts. The law provides 
 now that justices of the peace may issue warrants, 
 and those warrants shall be made returnable be 
 fore the police courts. No mischief is done because 
 these justices of the peace, have 110 power to 
 try. They merely issue warrants, and those war 
 rants arc returnable before the police courts. In 
 those places where you have police courts, you 
 have no trial justices ; but it sometimes happens 
 in Boston, Salem, Newburyport, Lowell, and 
 New Bedford, and perhaps in other places where 
 there are police courts, that, in the absence of the 
 police justice, there is a necessity for immediate 
 action, and a warrant must be issued by some 
 magistrate, and made returnable before that police 
 court. I think that if we say, by a constitutional 
 provision, that no magistrate whatever, in the 
 city of Boston, shall issue a warrant, no matter 
 what the circumstances may be, returnable be 
 fore the police court, that will be unwise ; and it 
 seems to me that the whole difficulty is remedied 
 by the phrase that " the jurisdiction of all such 
 justices shall not extend to the hearing or trial of 
 any causes." The difficulty has not been the 
 issuing of warrants made returnable before any 
 tribunal ; but the only difficulty has resulted from 
 the attempt to try causes by incompetent magis 
 trates. As it is not in order now, to move the 
 amendments which I have suggested, I have 
 merely made these remarks ; and if they strike 
 other persons favorably, they can move them. I 
 tried very hard yesterday, but I could not get a 
 vote of the Convention in favor of my proposi 
 tions. Although the Convention rejected them, 
 
 I still think there is good sense in them ; and 
 this is in accordance with the legislation of the 
 last fifteen years, upon the subject of the police 
 courts, and in accordance with public sentiment. 
 
 When you provided that trial justices should be 
 deemed to have vacated their office when they 
 removed from the town by which they were 
 elected, it seemed to me that the purpose was to 
 prevent justices elected in one town from having 
 jurisdiction in another town ; and the proposition 
 that I made, was this : that where all the parties 
 of course I mean parties to a civil cause have 
 a residence within the Commonwealth, then the 
 trial justice shall not have jurisdiction, unless 
 some one of them has a residence within his 
 town. If there are two parties, it should be 
 either the plaintiff or the defendant ; or if there 
 are three parties, then it should be either the 
 plaintiff, or defendant, or trustee. However many 
 parties there may be, if there should be three or 
 four defendants or trustees, if they all have a 
 residence in the town in which the justice re 
 sides, then he shall have jurisdiction. That is 
 just what we say in relation to police courts. 
 Wherever we establish police courts, if both par 
 ties reside in the town, then the justice has juris 
 diction. 
 
 If I understand the amendment that was read, 
 and which is offered as a substitute, I am inclined 
 to think that that is the best proposition that 
 the legislature should have power to classify and 
 define the powers of the several kinds of justices 
 of the peace and it seems to me that that is a 
 matter in regard to which we ought to have 
 some constitutional provision. 
 
 Mr. DAWES. There are two or three objec 
 tions to this proposition, in regard to which I 
 wish to say a few words ; and first, as to the 
 jurisdiction. The apprehension of the gentle 
 man from Salem, seems to me, to be unfounded. 
 Our present Constitution leaves the jurisdiction 
 of all the courts to the legislature. It establishes 
 your supreme judicial court, and provides for 
 such other courts as the legislature may see fit to 
 adopt. The Constitution, therefore, clothes the 
 legislature with the power to create just such 
 courts as they please. It does not even define 
 the jurisdiction of the supreme judicial court, but 
 leaves the matter entirely open to the legislature. 
 The legislature may clothe it with few or with 
 many powers. They may make it a higher court, 
 for the hearing of capital cases, or for the hearing 
 and deciding questions of law, only, or for the 
 hearing of jury trials also. 
 
 It was thought, by members of the Committee 
 to whom this matter was yesterday committed, 
 as it was by those who framed the old Corstitu- 
 
67th day.] 
 
 JUSTICES OF THE PEACE. 
 
 397 
 
 Tuesday,] 
 
 DAWES LORD MOKTOX. 
 
 [July 26th. 
 
 tion, that it was best to leave this matter of juris 
 diction entirely to the legislature ; and as it was 
 apprehended that no danger would arise in rela 
 tion to the other courts, so it was not appre 
 hended that any danger would arise if this mat 
 ter was left to the legislature also. 
 
 Mr. LORD. I desire to ask the gentleman 
 whether he believes it would be competent for the 
 legislature to make justices courts courts of re 
 cord? 
 
 Mr. DAWES. Undoubtedly. But I will ask 
 the gentleman from Salem a question which will 
 answer his, and that is, whether he is perfectly 
 certain that they are not courts of record now ? 
 
 Mr. LORD. They are not. 
 
 Mr. DAWES. The supreme court, I believe, 
 has given an opinion upon that point, and that 
 must decide the matter between us. 
 
 But, to proceed. The gentleman wishes to 
 amend by giving justices power to issue warrants 
 in criminal cases. Why, Sir, the great evil com 
 plained of, and to be remedied, is the power which 
 justices have all over the Commonwealth to issue 
 criminal warrants. I do not believe, with the 
 gentleman from Salem, that the only difficulty is 
 in trying criminal cases ; cases are instituted that 
 ought never to be tried before any justice of the 
 peace. I think it is a matter of quite as much 
 moment to determine when a warrant shall be 
 issued, as it is who shall try the cause. When 
 once instituted, the case must be tried, however 
 improperly begun. I do not think that every 
 man who holds the office of justice of the peace 
 should have the power to issue a warrant against 
 anybody that he pleases. I think the community 
 has felt the evil of this long enough, and a reme 
 dy will not be effected unless we cut off this 
 power to issue warrants. If one trial justice is 
 appointed in every town, and as many more as 
 the increased ratio of population may require, I 
 think that the police of the towns will be in safe 
 hands. As has been suggested by another gen 
 tleman, I think that in the issuing of warrants, 
 these justices lend themselves more to the gratifi 
 cation of malice and ill will, and spite of neighbor 
 against neighbor, than to the promotion of the 
 ends of justice in the trial of causes ; and I am 
 glad that the Convention has come back so nearly 
 as it has to the legislation of 1850, when the act 
 was passed in relation to trial justices. I believe 
 that that was a good law, and had it lived until 
 this time it would have brought about the good 
 fruits which we are now seeking. As to the 
 mode of electing justices of the peace, I have no 
 particular choice. 
 
 But there is another objection of the gentleman 
 from Salem in reference to their jurisdiction, 
 
 which, I think, should be left to the legislature ; 
 and that is : that none of the justices should have 
 jurisdiction unless one of the parties resides in 
 the town for which the justice is elected. Sir, 
 the gentleman forgets that justices are now county 
 officers, having jurisdiction all over the county ; 
 and I am not aware of any evil ever having arisen 
 from the fact that a justice of the peace can sum 
 mon a man before him from another town in the 
 county. How will the gentleman s suggestion 
 operate in practice ? In many of the towns there 
 are not to be found men of the legal profession ; 
 and, unless justices have this power, and a man 
 wishes a lawyer to conduct his case, or collect 
 such debts as he has against his own townsmen, 
 he must go to considerable additional expense in 
 bringing a professional man from a distance. If 
 the provision is limited to the county, so that no 
 justice in one county shall summon a man from 
 another county, I think the limit will be perfectly 
 safe. 
 
 I hope, therefore, that the resolves will pass. 
 I am not in favor of the amendment of the gen 
 tleman from Williamstown, for it seems to me 
 that it would only be perpetuating and establish 
 ing what is felt to be a growing evil in the Com 
 monwealth. I should have thought that nobody 
 could have been so blind to the evil. In many 
 towns of the Commonwealth we have nothing 
 more than a perfect mockery of justice. The 
 law, in consequence, has been brought into disre 
 spect, and has been made the instrument of pri 
 vate malice and revenge, so that in many of our 
 towns the very name of "justice s court" has be 
 come a stench in the nostrils of all respectable 
 men ; and I hope, if this evil cannot be remedied 
 in any other way than by a constitutional provis 
 ion, that we may have such a provision. 
 
 Mr. WALKER, of North Brookfield, moved 
 that all farther debate on this subject cease at 
 fifteen minutes past eleven o clock. 
 
 The motion was agreed to. 
 
 The question was then taken on the amendment 
 of Mr. Butler, and it was agreed to. 
 
 The question next recurred on the amendment 
 offered by the gentleman from Williamstown, 
 (Mr. Duncan). 
 
 Mr. MORTON, of Taunton. I think the sub 
 ject embraced in these resolves is one of very 
 great practical importance. We spent a good 
 deal of time yesterday in the examination of this 
 subject, and took a great many votes ; but it was 
 very apparent, then, that the subject was not 
 sufficiently matured. Neither the Committee to 
 which it was referred, nor the Convention, had 
 digested the matter so as to arrange it satisfacto 
 rily; and, notwithstanding the anxiety of the 
 
398 
 
 JUSTICES OF THE PEACE. 
 
 [67th day. 
 
 Tuesday,] 
 
 MORTON BUTLEI* HATHAWAY HALLETT. 
 
 [July 26th. 
 
 Convention to close their business, they thought 
 it expedient to recommit the suhject to a Special 
 Committee, and I am happy to bear my testimony 
 in favor of the labors of that Committee. I fear 
 that the subject has not commanded quite so much 
 attention on the part of the Convention as it de 
 serves. I think that the multiplication of justices 
 is felt to be a great and growing evil, and that the 
 resolves reported by the Committee are well cal 
 culated to remedy many of the evils complained 
 of. I approve of it from the beginning to the 
 end ; and yet I think there is one proposition in 
 it which it seems to me did not command quite 
 sufficient attention on the part of the Committee. 
 In the first resolution it is provided, that " no trial 
 justice shall act as such upon his ceasing to reside 
 in the town in which he was elected." That pro 
 vision is a very proper one ; but it might so hap 
 pen that a justice might leave the town in which 
 he was elected, without any ability to substitute 
 any one in his place ; and the substance of the 
 amendment I was about to propose is, that his 
 removing from the town shall vacate the office, 
 and leave somebody else to be elected. I move 
 to strike out all after the word " Provided," in 
 the first resolution, and insert : 
 
 That every trial justice who shall remove from 
 the town in which he was elected, shall thereby 
 vacate his office. 
 
 Mr. BUTLER, of Lowell. I rise merely to say 
 that that matter has been called to the attention of 
 some members of the Committee since they re 
 ported, and they quite agree to it. The words 
 used ia the Report were not well adapted to the 
 object in view, and, for one, I am much obliged 
 to the gentleman from Taunton for the amend 
 ment he has suggested. 
 
 The amendment was agreed to. 
 
 Mr. HATHAWAY. I rise for the purpose of 
 moving an amendment to these resolves, with the 
 view of perfecting them, as far as they can be 
 perfected, before the question is taken on the mo 
 tion to strike out. I move to strike out the words 
 " or the issuing of warrants in criminal cases," 
 from the second resolution, in the last line. My 
 reasons for making this motion are these : If the 
 Convention will notice the first resolution, they 
 will perceive that no town is to have more than 
 one trial justice, unless it have more than two 
 thousand inhabitants. There are a great many 
 towns in the Commonwealth which border upon 
 other States, many of which would only be en 
 titled to one trial justice ; and it seems to me, that 
 in such cases there are many circumstances which 
 might arise whereby the ends of public justice 
 would be promoted by giving to justices of the peace 
 
 the power to issue a warrant for the apprehension 
 of the party, but would not give any justice of the 
 peace the power to try the matter. Your trial 
 justice may be absent from home, or sick, or in 
 other ways be prevented from issuing a warrant in 
 a case of urgency, and yet it may be a matter of 
 necessity that a person should be arrested imme 
 diately. I happen to live but a few miles from 
 the border of the State of Rhode Island, and with 
 the present facilities for expeditious travelling, 
 there would be nothing easier than for an offender 
 to step beyond the boundary of the State. I think 
 that no possible inconvenience could result to the 
 community from granting to a justice of the peace 
 the right and power to issue warrants. The great 
 difficulty has been that, heretofore, trials before 
 ustices of the peace have been anything but what 
 trials ought to be, and their courts anything but a 
 court of justice. Trials in justices courts fre 
 quently have been such, that you would dignify 
 them if you called them by no worse name than 
 mock trials ; and I have no question that, in many 
 instances, and frequently, too, warrants have been 
 by them issued because of the miserable small 
 sum in the shape of fees they received therefor, 
 thus gratifying their avaricious passions, if they 
 have not been sometimes issued for the gratifica 
 tion of a still viler passion that of malice. 
 
 It seems to me that the public, as well as many 
 of the municipal communities, may find them 
 selves surrounded with great difficulty, unless 
 some officers besides the trial justices, have the 
 right to issue warrants in criminal cases. When 
 the question of the basis of the House of Rep 
 resentatives was under discussion, it was said 
 that there were sixty-four towns containing less 
 than one thousand inhabitants, and I have no 
 doubt that there is at least sixty-four towns 
 more, which do not contain two thousand inhab 
 itants. If that is so, then you have at least one 
 hundred and twenty- eight towns, more than one- 
 third of the whole, which would have but one 
 trial justice, and only one person, in each of those 
 towns, having the right to issue warrants ; and if, 
 in the providence of Heaven, the trial justice in 
 such towns should be sick, or if he should be 
 absent, no matter how high the offence that may 
 have been perpetrated, or with which a man may 
 be charged, the individual charged with the com 
 mission of it may escape for the want of a mag 
 istrate who is authorized to issue a warrant for 
 his arrest. Hence, I think it is proper to strike 
 out these words. 
 
 Mr. HALLETT, for Wilbraham. I am sure 
 my friend from Freetown, (Mr. Hathaway,) will 
 not insist upon his amendment, if he will but 
 look at it for a moment. This provision is the 
 
67th day.] 
 
 JUSTICES OF THE PEACE. 
 
 399 
 
 Tuesday,] 
 
 HALLETT HATHAWAY BUTLER LORD. 
 
 [July 26th. 
 
 most important amendment suggested in regard 
 to the judicial department which is in the hands 
 of justices of the peace. You have now the 
 great principle, the interposition of the grand 
 jury, by which no man can be charged for crime 
 in your courts, unless his case has been heard 
 beforehand without his knowledge, to be sure 
 before the grand jury ; yet you have now, and 
 will have, if this amendment prevails, some eight 
 or nine thousand persons who have it in their 
 power, maliciously, or for other motives, privately, 
 and unknown to any man, to issue a warrant by 
 which a man may be taken out of his bed, and 
 away from his family, and carried to prison, and 
 there be confined until the trial justice can be 
 found. And, unless you can prove that the jus 
 tice issued the warrant maliciously or corruptly, 
 the man has no remedy whatever. In that case, 
 then, we shall be in the hands of every ma,n who 
 chooses to make a causeless charge against an 
 individual, and your great principle, a presenta 
 tion by a grand jury, the great bulwark of the 
 liberties of the people, becomes entirely worth 
 less ; because, by this process of complaint, you 
 can always charge any man you please with an 
 offence and to charge with crime an innocent 
 man, is as bad for him, as is the conviction of a 
 guilty man for him. If this provision remains, 
 that great evil is taken away, and what is the 
 inconvenience ? It is almost impossible for cases 
 to arise where you cannot get a warrant, and if 
 you cannot get a warrant in season, the officer 
 can detain a person until a warrant can be found. 
 I hope the Convention will not change this most 
 important provision. 
 
 Mr. HATHAWAY. One word only, in re 
 ply to the remarks of the gentleman for Wilbra- 
 ham. I do not propose to permit these magis 
 trates to try any causes, nor do I propose to so 
 arrange it, so that a man upon being arrested by 
 a warrant issued by a justice who is not a trial 
 justice, shall be thrown into prison, to wait until 
 the return or recovery from sickness, of the trial 
 justice of the town where he happens to be ar 
 rested. I do not propose any such thing ; for if 
 the trial justice of one town is absent, another 
 can be found in an adjoining town, not ten miles 
 distant probably. I would not put a power into 
 the hands of a justice which could be so abused ; 
 by no means. I merely would give the magis 
 trate the power of issuing warrants, so that, 
 where there is really an offence, he can arrest the 
 criminal. 
 
 Mr. BARTLETT, of Boston. The clause un 
 der debate attracted the attention of some mem 
 bers of the Committee, and it is really a balance 
 question. 
 
 [Here the President s hammer fell, the hour of 
 eleven o clock and fifteen minutes having arrived, 
 at which the Convention had ordered that the 
 question should be taken.] 
 
 The question first recurring upon the amend 
 ment offered by the gentleman from Freetown, 
 (Mr. Hathaway,; it was put and decided in the 
 negative, upon a division ayes, 43 ; nays, 144. 
 
 So the amendment was rejected. 
 
 The question next recurring upon the amend 
 ment offered by the gentleman from Williams- 
 town, (Mr. Duncan,) it was put, and decided in 
 the negative. 
 
 So the amendment was rejected. 
 
 The question was then taken upon ordering 
 the resolves, as amended, to a second reading, and 
 it was decided in the affirmative. 
 
 The PRESIDENT. The resolves will take 
 their second reading to-morrow. 
 
 Mr. BUTLER, of Lowell. As this question, 
 has been fully discussed and considered, I there 
 fore move, that the rule requiring the resolves to 
 take their second reading to-morrow be suspend 
 ed, and that they take their final reading at this 
 time, so that they can pass into the hands of the 
 Revising Committee, who are now waiting for 
 them. 
 
 Mr. LORD, of Salem. Have these resolves 
 been read ? I had supposed that we had done 
 nothing, except to substitute this Report for the 
 Report of the first Committee. 
 
 The PRESIDENT. The whole subject was 
 referred to a Special Committee, and the Com 
 mittee made their Report, and the Convention 
 have acted upon it, and ordered it to a third read 
 ing. Now the gentleman from Lowell, (Mr. 
 Butler,) moves to suspend the rule which re 
 quires their second reading to-morrow, and put 
 them upon their final passage at this time. 
 
 Mr. LORD. I desire to know if the Standing 
 Committee of this body, which had this matter 
 under consideration, and of which the gentleman 
 from Lenox, (Mr. Bishop,) was the chairman, 
 did not report a series of resolves, and whether 
 these resolves were not reported as an amendment 
 to those ? The amendment offered by the gentle 
 man from Bernardston, (Mr. Cushman,) was 
 under discussion, and after the first resolves were 
 amended, they were referred, and afterwards the 
 resolves which have been now considered, were 
 reported as an amendment to the original Report 
 of the Committee. 
 
 The PRESIDENT. If the gentleman from 
 Salem will look at the Report, he will see that 
 the whole matter was referred to the Special 
 Committee, and the whole subject was reported 
 back in a new draft. The question is now upon 
 
400 
 
 JUSTICES OF THE PEACE. 
 
 [67th day. 
 
 Tuesday,] 
 
 LORD WHITNEY. 
 
 [July 26th. 
 
 the motion made by the gentleman from Lowell, 
 (Mr. Butler,) to suspend the rules, and put the 
 resolves upon their final passage. 
 
 The question was taken, and decided in the 
 affirmative. 
 
 So the rules were suspended. 
 
 The question then recurring upon the final 
 
 Mr. LORD, of Salem. I would inquire of the 
 Committee who reported this, whether, if a va 
 cancy in the delegation in congress should hap 
 pen in the early part of December, we shall be 
 obliged to wait until the next November, until a 
 writ can issue for a new election, whether the 
 vacancy is caused by resignation or otherwise ? 
 Now we have representative districts for mem 
 bers of congress, and we have provided that they 
 shall be chosen by a plurality vote, and it was 
 said, when that matter was under discussion, that 
 the districts included representatives to congress. 
 In my judgment it does include them. They are 
 to be chosen by a plurality of votes, as we have 
 provided in the Constitution ; and, therefore, the 
 manner of election is provided for, although the 
 election itself is not strictly according to the terms 
 provided for. But, whether it does or does not, 
 I desire to understand it. The language of the 
 resolution is, " whose election is provided for." 
 If it were " whose office is created by the Con 
 stitution," then I should have no difficulty. But 
 the Constitution does, to some extent, provide for 
 their election, and when the plurality question 
 was under consideration, every-body agreed that 
 the word " district " covered representatives to 
 congress. "Whether it does or does not, I do not 
 know. If it does not, it is all well enough, but 
 if it does, then the resolve is objectionable. 
 
 I desire to ask the gentleman from Taunton, 
 (Mr. Morton,) whether the effect of his amend 
 ment, which provides that the removal of a trial 
 justice from the town in which he resides shall 
 vacate his office, will prevent the completion, by 
 him, of the trial of causes, or the finishing up of 
 cases already commenced before him before his 
 removal, and pending at the time of his removal ? 
 I should like to know r what his construction of 
 it is? 
 
 Mr. WHITNEY, of Conway. I rise to renew 
 the amendment suggested by the gentleman from 
 Freetown, (Mr. Hathaway,) on a previous read 
 ing of these resolves. I have not had the benefit 
 of the previous discussion, but it seems to me that 
 the amendment is an important one. I think you 
 will find that there are one hundred and seventy 
 towns in this Commonwealth, which will have 
 but one man, according to this resolve, who will 
 possess the power of issuing warrants. Now, Sir, 
 
 suppose that it should happen as in many cases 
 it will that a man whom the people elect as a 
 justice shall not be disposed to issue a warrant ; 
 take, for instance, the violation of the license law, 
 when a tavern keeper is the justice. Now, I 
 think, upon every principle, there should be more 
 than one man in a town of two thousand inhabi 
 tants, who has the right to issue a warrant. I 
 would not increase the number of justices em 
 powered to try cases, but I would have more 
 than is here proposed, authorized in criminal 
 cases, and empowered to issue warrants. 
 
 Then, again, look to the condition of the border 
 towns of the Commonwealth. There, a man who 
 has committed a crime, may run across the line 
 before he can be arrested, if it should happen 
 that the one trial justice is sick or absent for a 
 time. There would be a necessity that he should 
 be at home at all times, if he is the only man 
 who can institute proceedings. There is no man 
 who does not leave the town at some time or 
 another ; and in that case, a criminal, happening 
 then to commit crime, could get out of the Com 
 monwealth before he could be arrested. 
 
 There is a good deal in this amendment, though 
 it did not meet with much favor before. It strikes 
 me as an amendment of great importance, and one 
 which should be considered before we pass these 
 resolves. If you give to one man, and only one 
 man, the right to issue warrants, it will introduce 
 a new element into our elections. It will trouble 
 us all over the Commonwealth. The question 
 will be asked of a candidate, whether he will 
 issue a warrant in this matter or that matter, 
 before he can be elected a trial justice. This 
 matter will return to trouble its inventors ; and it 
 becomes you, and it becomes me, and others, to 
 consider this matter well before we act upon it. I 
 undertake to say, that if you make this provision 
 a constitutional one and therefore out of the reach 
 of the legislature for the next twenty years you 
 will greatly inconvenience the people of Massa 
 chusetts, and subject them to trouble in the exe 
 cution of their criminal laws. It has been decided 
 that in this Commonwealth a man has a right to 
 defend himself against arrest, unless the officer 
 making the attempt has a warrant to justify him. 
 If a man pursues me for a crime, without a war 
 rant or advertisement, I have a right to defend 
 myself against arrest. In one case, I believe, life 
 was taken, and the courts discharged the criminal 
 on the ground that no warrant had issued. I 
 would not, therefore, make it so difficult to pro 
 cure a warrant. Now, it will be very difficult to 
 obtain warrants in many cases, if this provision is 
 adopted. 
 
 I therefore propose, that in this second resolu- 
 
67th day.] 
 
 JUSTICES OF THE PEACE. 
 
 401 
 
 Tuesday,] 
 
 WHITNEY BARTLETT GOOCH. 
 
 [July 26th. 
 
 tion, all and after, and including the word " or," 
 be stricken out. And I hope this amendment 
 will prevail. The gentleman for Wilbraham, (Mr. 
 Hallett,) says we have the grand jury. It is true, 
 and we have the district- attorney. But that 
 does not meet the wants of the case. There are 
 many cases occurring which require an immediate 
 arrest. Yet none ot these officers are bound to 
 arrest a man unless a warrant is issued. They 
 can take the responsibility of arresting a man if 
 they choose ; but you cannot compel them to take 
 the responsibility. I see no reason, therefore, why 
 this power should not be committed to your jus 
 tices of the peace. There has been no abuse of 
 the power, heretofore, that I can learn ; and I can 
 see no good reason for taking the power from them. 
 It is certainly important that more than one should 
 be provided for a town of two thousand inhab 
 itants. There are many cases where much in 
 convenience would be occasioned by this provision. 
 Most of the towns in the Commonwealth, with a 
 population of 2,000 inhabitants, cover a large ex 
 tent of territory, and the appointment of more than 
 one officer with the power of issuing warrants, is 
 a matter of almost absolute necessity. I move, 
 therefore, to strike out at the close of the second 
 resolution the words " or for issuing warrants in 
 criminal cases." 
 
 Mr. BARTLETT, of Boston. I was about to 
 state upon a former occasion, that these questions 
 were not lost sight of in the Committee to which 
 this matter was referred ; but the consideration 
 which probably had much influence in control 
 ling this action, was, that the proposition of the 
 gentleman from Con way, when weighed and ex 
 amined, must result in balancing convenience 
 against personal liberty. The theory upon which 
 this provision for distributing the powers of jus 
 tices of the peace rests, is that you are to provide 
 a class of magistrates who are, from their expe 
 rience and more elevated character, better fitted 
 for the trial of causes, and exercising judicial func 
 tions, than a large portion of the persons usually 
 created justices of the peace. 
 
 Now, Sir, the case put by the gentleman from 
 Freetown, (Mr. Hathaway,) is undoubtedly a 
 very strong one in support of the argument 
 founded on inconvenience. It is no doubt true 
 that in cases where the party to be arrested is on 
 the borders of the Commonwealth, or of different 
 towns, he might escape before a warrant could be 
 obtained for his arrest ; but when you take into 
 view the fact that your police force your con 
 stables are to a certain extent, authorized to 
 arrest without a warrant, and bring the accused 
 before a magistrate ; and as, practically, in all cases 
 of well ascertained guilt the officer incurs slight 
 
 27 
 
 risk, which rarely deters him from action, I think 
 the suggested defect is not of grave importance. 
 At all events, cases of the character supposed, will 
 be, I should suppose, unfrequent ; and I ask gen 
 tlemen here, whether it is worth while, in order 
 to meet such contingencies, to place this power of 
 issuing warrants of arrest in the hands of all jus 
 tices of the peace ? a numerous class of officers, 
 many of them appointed by the governor by way 
 of compliment, or for various reasons having but 
 little connection with their qualifications by ex 
 perience and judgment for the exercise of so deli 
 cate a power as that of arresting a man upon a 
 complaint which they are not to try, and turning 
 the case and responsibility over to another class of 
 magistrates. I would rather this power should 
 be delegated to a trained and less numerous class 
 of persons than the great body of the justices of 
 the peace ; and so long as it shall be found, as I 
 think it practically will, that escapes from pro 
 cess, or ultimate legal investigation, are unusual, 
 I am averse to extending the power of issuing 
 warrants beyond the class of persons selected and 
 authorized by the proposition of the Committee. 
 
 Mr. WHITNEY, of Boylston. I want to say 
 one word in reference to the amendment proposed 
 by my friend from Con way, (Mr. Whitney). I 
 think the reason given by him for striking out 
 the words which he proposes to strike out, is the 
 very reason why they should not be stricken out. 
 The gentleman objects that in many cases it 
 would require too long to get a warrant. Now, 
 I think if they would only allow time for the 
 parties to cool down a little, in many cases war 
 rants would not be taken out at all. A case came 
 under my observation where one man swore at 
 another, and the other shook his fist in the first 
 man s face. Well, Sir, without giving time for 
 their tempers to cool, the matter was brought 
 before a justice of the peace, and one man got 
 his case ; then it was brought before another 
 justice, and the other got his case. Finally the 
 matter was carried up to Worcester, and the 
 judge threw it out of court at once, and neither 
 got his case. The difficulty was that a justice of 
 the peace was too convenient. They did not 
 allow time for their tempers to cool off. If the 
 parties were obliged to wait two or three days 
 before a warrant could be issued, I think much 
 difficulty would be avoided. I think the sugges 
 tion that of two evils we shall choose the least, by 
 limiting the exercise of this power to the trial 
 justices, is a good one ; and I shall therefore vote 
 against the amendment. 
 
 Mr. GOOCH, of Melrose. I think there is an 
 objection to the resolution as it now stands, and 
 at the same time I do not like the amendment of 
 
402 
 
 JUSTICES OF THE PEACE. 
 
 [67th day. 
 
 Tuesday,] 
 
 GOOCH BUTLER HALLETT. 
 
 [July 26th. 
 
 the gentleman from Con way. I prefer giving the 
 power of issuing warrants only to the trial jus 
 tices, but I think there should be more than one 
 trial justice in a town of two thousand inhabi 
 tants. In the first place, your trial justice may be 
 absent ; in the second place, he may be sick ; and 
 in the third place, he may be dead. So that there 
 will be likely to be a great many towns where 
 there will be no trial justice at all for a great 
 portion of the year. I think, therefore, that it 
 would be advisable to elect two trial justices in 
 every town. There are a great many towns con 
 taining less than two thousand inhabitants, in 
 which two villages are located four or live miles 
 apart. In such cases it becomes almost a matter 
 of necessity that a trial justice should be elected 
 for each village. I propose, when the opportunity 
 shall present itself, to offer an amendment that 
 there shall be two trial justices for every town of 
 less than two thousand inhabitants, instead of 
 one. If this amendment be adopted, it will ob 
 viate the necessity of the amendment of the 
 gentleman from Con way, (Mr. Whitney). 
 
 Mr. ADAMS, of Lowell. I move the previ 
 ous question. 
 
 The previous question was seconded, and the 
 main question ordered to be put. 
 
 The question being first upon the amendment 
 of Mr. Whitney, of Conway, it was put, and the 
 amendment was disagreed to. 
 
 The question then recurred upon the final pas 
 sage of the resolves. 
 
 Mr. GOOCH. Must the question not be taken 
 upon my amendment ? 
 
 The PRESIDENT. The Chair did not under 
 stand the gentleman as offering an amendment. 
 
 Mr. GOOCH. I intended to offer one. 
 
 The PRESIDENT. The Chair cannot answer 
 for the gentleman s intention. 
 
 Mr. GOOCH. Is it in order to offer an amend 
 ment at this time ? 
 
 The PRESIDENT. It is not in order, the 
 main question having been ordered. 
 
 Mr. GOOCH. I move to reconsider the vote 
 by which the main question was ordered. 
 
 The PRESIDENT. The Convention ordered 
 the main question to be put now, which main 
 question extended first to the amendment pend 
 ing, and then to the final passage of the resolves. 
 The amendment has already been voted upon, and 
 the Chair thinks it is not in order to move to 
 reconsider the vote by which the main question 
 was ordered. By general consent, however, the 
 Chair will entertain the motion. 
 
 Mr. BUTLER, of Lowell. I object. 
 
 The resolves were then ordered to their final 
 passage. 
 
 Mr. HALLETT. I now move to reconsider 
 the vote by which the resolves were finally passed. 
 I make the motion for the purpose of giving an 
 opportunity for the alteration suggested by the 
 gentleman from Melrose, (Mr. Gooch,) to be 
 made. I think it is a very proper amendment, 
 and should be made. 
 
 The PRESIDENT. The motion will go over 
 until to-morrow, under the rule. 
 
 Mr. BUTLER, of Lowell. I move to suspend 
 the rule, and that the motion to reconsider be 
 taken up now for consideration. 
 
 The motion was agreed to. 
 
 Mr. BUTLER. Now, Mr. President, I am 
 opposed to the motion to reconsider, for the pur 
 pose indicated. I am not able to see the great 
 inconvenience of which the gentleman from Con- 
 way, (Mr. Whitney,) and his friends are afraid. 
 In every county, except Dukes and Nan tucket, 
 there will be as many as from ten or twelve up 
 to fifty or eighty, and I do not know how many 
 more, of these officers. With that state of things, 
 I do not see that anybody would have to go 
 whaling. [Laughter.] You provide that there 
 shall be at least one in every town in the State, 
 and this will make at least three hundred and 
 twenty- eight of these officers who are authorized 
 to issue warrants. Then, besides that, every man 
 in the Commonwealth, whether constable, or 
 otherwise, is authorized to pursue, overtake, and 
 seize, without a warrant, any man who may be 
 guilty of a State Prison offence, and to hold him. 
 until he can find a trial justice. 
 
 But it has been said that if a trial justice 
 refuses to issue a warrant in certain cases, that 
 will be made a test question in his election. 
 Well, Sir, suppose it is, if he exercises his power 
 improperly, there is a power to punish him. I 
 do not doubt, however, that cases may arise in 
 which some inconvenience may occur ; but there 
 is another consideration. If the plan proposed 
 by my friend from Conway, (Mr. Whitney,) were 
 adopted, and the power of issuing warrants were 
 conferred upon all the justices of the peace, it 
 would lead to the multiplication of these officers, 
 until they would come to be a nuisance. It 
 would be in their election, as it has been in their 
 appointment, every man wants another in his 
 town, and the governor has gone on appointing 
 them until there are as many as four thousand, 
 and I do not know how many more, in the Com 
 monwealth. That will be the difficulty. Now, 
 I say if we have one in each town with the power 
 of trying causes and issuing warrants, there is no 
 occcasion for any more, for those purposes. Sir, 
 we want men to try causes of a more elevated 
 character than the general run of justices of the 
 
67th. day.] 
 
 JUSTICES OF THE PEACE. 
 
 403 
 
 Tuesday,] 
 
 BRIGGS KEYES CHAPIN. 
 
 [July 26th. 
 
 peace. We want men of capacity, and it has 
 been ascertained by experience, as a general 
 principle, that the fewer there are, the more ele 
 vated in character they are likely to be. 
 
 But, again, if you have two in a town, one 
 will run in opposition to the other, like two stage 
 lines. One will tell you that he is the cheaper 
 justice, and that you can get your business done 
 cheaper at his shop than the other one ; and in my 
 opinion, you will find in the end more inconven 
 ience arising from multiplying these trial justices, 
 than by limiting them in number. I hope, 
 therefore, the motion to reconsider will not pre 
 vail for this purpose. 
 
 Mr. BRIGGS, of Pittsfield. If I were to vote 
 for the motion to reconsider, I should do it for a 
 different reason from that stated by the mover. 
 I think the difficulty is, that we have provided for 
 quite too many trial justices. I think if we had 
 provided not more than a quarter as many, and 
 had properly distributed them throughout the 
 Commonwealth, that they would, as the gentle 
 man from Lowell says, be much more likely to be 
 selected on account of their qualifications and 
 fitness for the office, and that such a system 
 would be a much better one than that you have 
 adopted. I cannot see the necessity for the great 
 number of trial justices which is seen by some 
 gentlemen. I do not suppose in one- half or 
 three-quarters of the towns in the Commonwealth, 
 there is a warrant issued from the beginning of 
 the year to the end. But, if a man wants a war 
 rant issued, what does he do ? He goes to a 
 lawyer and applies to him, and he institutes pro 
 ceedings in the case. 
 
 Now, I think it is not only worth while to 
 deprive the justices of the peace of the power of 
 issuing warrants, but if I had my way I would 
 limit the power still farther than it is done in the 
 proposition. 
 
 The gentleman from Freetown, (Mr. Hatha 
 way,) stated a very strong case in which incon 
 venience would arise from the number of trial 
 justices not being greater. But, at the same time, 
 he stated a fact in connection with it, which 
 seemed to me obviated the whole difficulty. In 
 the case mentioned by him where the trial jus 
 tice was absent, he said that in all probability the 
 trial justice in the next town would not be more 
 than ten or fifteen minutes off, and that they would 
 send and get him. So that after all a delay of 
 only ten or fifteen minutes would be caused. 
 
 I think, however, the case stands very well as 
 it is, and I shall therefore vote against the motion 
 to reconsider. 
 
 Mr. KEYES, for Abington. I rise for very 
 much the same purpose that I did the other day, 
 
 because I could not sit and listen any longer 
 without taking some part in the debate. 
 
 Since this discussion has been going on, my 
 mind has been turned a little to the town where 
 I reside not the town I represent. We have 
 there nearly 5,000 inhabitants, and out of those 
 there are but very few persons who would take 
 the office of trial justice. When the trial justice 
 law went into operation, several years ago, a man 
 was appointed of more than eighty years of age ; 
 but since that act was repealed, as well as before 
 it went into operation, most of the trial business 
 has been performed by the register of probate. 
 Now, one of these two persons would most likely 
 be elected to the office under this provision which 
 we have just adopted. 
 
 Now, Sir, I believe they are both of them hon 
 est men ; they would endeavor to transact the 
 business which their duty required of them under 
 this law according to their conscience ; but they 
 are no more alike than snow and soot ; they are 
 entirely opposite by nature, by education, and by 
 ideas. There might be some difference of opinion 
 on the part of these two persons on particular 
 questions. I suppose a majority of the people 
 would decide that the judge of probate, being the 
 younger man, should be the trial officer. He has 
 to go about the country with his green bag, and 
 is often away from his home. What would be 
 the state of affairs in case he should be wanted 
 while absent ? It appears to me that if there is 
 any use in having any sort of officer at all I do 
 not, myself, know of any great use for any but 
 if there is any use for one, is there not use for 
 two? 
 
 Mr. CHAP IN, of Worcester. I propose to vote 
 against the amendment, and certainly if I were 
 disposed to vote in its favor, it would not be for 
 the reason given by the gentleman from Pittsfield. 
 After the act was passed authorizing trial justi 
 ces, ordinary justices of the peace were deprived 
 of the power to try causes. But the act worked 
 well, and if the chief magistrate of the Common 
 wealth had appointed one trial justice in every 
 town in the Commonwealth, it would have re 
 mained upon the statute book to this hour. The 
 excitement against the act arose from the circum 
 stance, that parties were carried from the town 
 where they resided to have causes tried at a dis 
 tance from, their homes, and the question natur 
 ally arose, whether they could not have a person 
 nearer home qualified to try their cases. The 
 answer was, that they could not. This proposi 
 tion provides for what we want ; it provides sub 
 stantially, for a police court in every town. Take, 
 for example, the city of Worcester, with twenty 
 thousand inhabitants, and there is not a man 
 
404 
 
 CONSTITUTIONAL CONVENTIONS, &c. 
 
 [67th day. 
 
 Tuesday,] 
 
 CHAPIN HALLETT GRISWOLD LIVERMORE. 
 
 [July 26th. 
 
 there authorized to issue a warrant, in a criminal 
 case, except a police justice. This is a strong 
 case. Take the city of Boston, and other places 
 where they have police courts, and there they 
 have no trial justices, nor any other magistrates 
 authorized to issue warrants in criminal cases, 
 and who complains ? There is another reason 
 why I would be opposed to the amendment, and 
 in favor of the original proposition. If we have 
 various justices in the towns, not qualified to try 
 causes, they will not be prepared to do any busi 
 ness relating to criminal cases, which will bear 
 the test of criticism or examination. If there 
 was such a justice of the peace in the town where 
 an offence had been committed, I would not go to 
 him, but to a trial justice in the next town, who 
 would of course be prepared for such business, 
 and would prepare the papers in such a manner 
 that they would stand the test before a higher 
 tribunal. Therefore, I am satisfied that this 
 resolution should be adopted. 
 
 Mr. FREEMAN, of Franklin, called for the 
 previous question, and it was ordered. 
 
 The first question was on the reconsideration 
 of the vote by which the resolutions were passed. 
 
 The motion to reconsider was decided in the 
 negative. 
 
 Conventions to Revise the Constitution. 
 
 Mr. HALLETT, for Wilbraham, from the 
 Special Committee on the subject of Conventions 
 to Revise the Constitution, reported the following 
 resolutions, with a recommendation that they do 
 pass : 
 
 1. Resolved, That it is expedient to provide in 
 the Constitution, that 
 
 A Convention to revise or amend this Con 
 stitution, may be called and held in the following 
 manner : At the general election in the year 
 one thousand eight hundred and seventy-three, 
 and in each twentieth year thereafter, the quali 
 fied voters in State elections shall give in their 
 votes upon the question : " Shall there be a Con 
 vention to revise the Constitution ? " which votes 
 shall be received, counted, recorded, and declared, 
 111 the same manner as in the election of Governor ; 
 and a copy of the record thereof, shall, within one 
 month, be returned to the office of the Secretary 
 of State, who shall, thereupon, examine the same 
 and shall publish, in the newspapers in which 
 the laws are then published, the number of yeas 
 and nays given upon said question, in each town 
 and city, and if a majority of said votes shall be 
 in the affirmative, it shall be deemed and taken to 
 be the will of the people that a Convention should 
 meet accordingly ; and thereafter, on the first 
 Monday of March ensuing, meetings shall be 
 held, and delegates shall be chosen, in all the 
 towns, cities, and districts, in the Commonwealth, 
 in the manner and number then provided by law 
 
 for the election of the largest number of represent 
 atives, which the towns and cities shall then be 
 entitled to elect. And such delegates shall meet 
 in Convention at the State House, on the first 
 Monday of May next ensuing, and when or 
 ganized, shall have all the powers necessary to 
 execute the purpose for which such Convention 
 was called ; and may establish the compensation 
 of its officers and members, and the expense of 
 its session, for which the Governor, with the ad 
 vice and consent of the Council, shall draw his 
 warrant on the treasury. And if such alterations 
 and amendments as shall be proposed by the Con 
 vention, shall be adopted by the people voting 
 thereon, in such manner as the Convention shall 
 direct, the Constitution shall be deemed and taken 
 to be altered or amended accordingly. And it 
 shall be the duty of the proper officers, and per 
 sons in authority, to perform all acts necessary to 
 carry into effect the foregoing provisions. 
 
 2. Resolved, That whenever towns or cities 
 containing not less than one- third of the qual 
 ified voters of the Commonwealth shall, at 
 any meeting for the election of State officers, re 
 quest that a Convention be called to revise the 
 Constitution, it shall be the duty of the legisla 
 ture, at its next session, to pass an act for the 
 calling of the same, and submit the question to 
 the qualified voters of the Commonwealth, whether 
 a Convention shall be called accordingly : provided, 
 that nothing herein contained shall impair the 
 power of the legislature to take action for calling 
 a Convention, without such request, as heretofore 
 practised in this Commonwealth. 
 
 3. Resolved, The foregoing provisions shall in 
 nowise restrain or impair the reserved right of the 
 people, in their sovereign capacity, and by such 
 mode of proceeding as shall fully and fairly col 
 lect and ascertain the will of the majority, at all 
 times, to reform, alter, or totally change their 
 Constitution and Frame of Government. 
 
 Mr. HALLETT moved that the rule be sus 
 pended, and that the Convention now proceed to 
 the consideration of the resolutions just reported. 
 
 Mr. GRISWOLD, for Erving. I would in 
 quire whether it would not be better to have the 
 resolutions printed, and take up other matters 
 now ? I fear that by a suspension of the rules we 
 may delay the business. 
 
 Mr. HALLETT. If we suspend the rule, the 
 resolutions can be read the first time now, and 
 then be printed. 
 
 The motion to suspend the rule was agreed to. 
 
 The resolutions were read the first time, laid on 
 the table, and ordered to be printed. 
 
 Bill of Rights. 
 
 On motion by Mr. LIVERMORE, of Cam 
 bridge, the Convention proceeded to the consider 
 ation of the unfinished business of yesterday, 
 being the resolves in relation to the Bill of Rights. 
 
 The question being on ordering the resolves, as 
 amended, to a second reading. 
 
67th day.] 
 
 IMPRISONMENT FOR, DEBT. 
 
 405 
 
 Tuesday,] 
 
 STRONG. 
 
 [July 26th. 
 
 The second resolve having been amended, on 
 motion of Mr. Dana, for Manchester, so as to 
 read as follows : 
 
 2. Resolved, That the Bill of Rights be amend 
 ed by inserting, between the eleventh and twelfth 
 articles, the following additional article, being 
 identical with one now in another chapter of the 
 Constitution, and which more appropriately be 
 longs to the Bill of Rights, viz. : 
 
 " VII. The privilege and benefit of the writ of 
 habeus corpus shall be enjoyed in this Common 
 wealth in the most free, easy, cheap, expeditious, 
 and ample manner ; and shall not be suspended 
 by the legislature, except upon the most urgent 
 and pressing occasions, and lor a limited time, not 
 exceeding twelve months." And said writ shall 
 be granted as of right in all cases where the legis 
 lature shall not especially confer a discretion 
 therein upon the court ; but the legislature may 
 prescribe preliminary proceedings to the obtaining 
 of said writ. 
 
 Imprisonment for Debt. 
 
 Mr. STRONG, of Easthampton. If it is in 
 order, I wish to offer the following as an ad 
 ditional resolution : 
 
 Resolved, That the Bill of Rights be so amend 
 ed, that no person in this Commonwealth shall 
 be subjected to imprisonment for debt founded 
 upon any contract, expressed or implied, unless 
 in case of fraud. 
 
 Mr. STRONG, of Easthampton. Mr. Presi 
 dent : The humanity of the age is against im 
 prisonment for debt ; but that it is the law of the 
 Commonwealth, and is considered just, by many, 
 admits of no doubt. If there w r as but one way 
 to produce poverty, and that through a criminal 
 channel, more, or even everything, might be said 
 in favor of confinement ; but almost endless are 
 the ways by which men become poor. Does it 
 not often arise from causes which no human 
 sagacity can indicate, or care prevent ? such as 
 protracted sickness, loss of sight, limbs, failure of 
 crops, death of stock, loss of property in the 
 hands of agents, and often through the opera 
 tions of swindlers and scoundrels ; immense for 
 tunes lost at sea, buried in a rolling ocean, which 
 no human exertion could control ; loss by sud 
 den political changes, which put a stop to na 
 tional as well as individual progress and prosper 
 ity. Yet in all these several misfortunes, the 
 sufferer has incurred no guilt. Why, then, should 
 a punishment from the law await him ? Why 
 should the vengeance of the law break in upon 
 innocence ? Whoever is willing to acknowledge 
 that rational liberty is the choicest gift that Heav 
 en has bestowed upon man, must also acknowl 
 edge that to be deprived of it, is the greatest evil. 
 
 There is a spirit in man that induces him to 
 break through difficulty, and live to triumph over 
 all misfortune ; and when the calamities I have 
 mentioned have overtaken him, we behold him 
 making head against them, with courage, and 
 even cheerfulness ; but the moment you insult 
 his calamities, by adding contempt and imprison 
 ment, it can never fail to break the force of a 
 generous mind. He feels that these evils that 
 have already fallen to his lot are enough the 
 voice of reason cries enough. Why, then, should 
 the law interfere to render those calamities irrep 
 arable ? 
 
 As a nation, we are unwilling to acknowledge 
 the dominion of a foreign power over us, in the 
 smallest degree. What, then, must be the feel 
 ings of an individual, when he finds himself a 
 candidate for persecution and confinement, in the 
 bosom of his own State, and by its own laws, 
 without being guilty of any crime but that of 
 being an unfortunate man r A short time after 
 the close of the war of 1812, wi .h England, 
 there were more men confined in the jails of this 
 Commonwealth for debt, than were made prisoners 
 by the enemy during the entire war, from any 
 one State in this Union. Thus, in the midst of 
 peace, society was suffering an outrage worse than 
 war. Again, if the debtor is poor, and can pay 
 nothing, the creditor gets nothing, except it may be 
 a malicious joy he may derive from the reflection 
 that he is punishing a man as a criminal who is 
 guilty of no crime. No, Sir ; it seldom proves 
 beneficial to the creditor, and has been the ruin 
 of thousands of good and honorable men. It is 
 no matter, Sir, whether he be confined one day 
 or twenty ; no matter whether his liberty is lim 
 ited to a room ten feet square, or whether he 
 have an acre of ground to walk upon ; it is con 
 finement, in both cases, and it is the principle I 
 contend against. And, Sir, with this numerous 
 class of unfortunate men, hunted by the officers 
 of the law, and thrust into jail for misfortune 
 alone, the sinews of exertion relax, the objects of 
 time lose their allurements, creation turns to a 
 vault, wherein joy is entombed. 
 
 It is a pause a calm on the ocean of life when 
 the mind sickens and expires. It would be slan 
 der on the aborigines of this country to call it a 
 savage custom ; for, as I read their history, there 
 never was such a custom among them. But when 
 ever those sons of nature are unfortunate in hunt 
 ing, or otherwise, they do not send out one of 
 their runners to catch and confine them ; they 
 have no civilized hell-hounds to prowl in the ken 
 nel of justice. No, Sir ; far different is the prac 
 tice of the red man of the forest ; each one throws 
 in his mite for the unfortunate among them, to 
 
406 
 
 IMPRISONMENT FOR DEBT. 
 
 [67th day. 
 
 Tuesday,] 
 
 STRONG. 
 
 [July 26th. 
 
 bring him up on a level with the rest, and to 
 spare him the pain of feeling little among them ; 
 but, although not a savage practice, it may well 
 be called a barbarous one, though nowhere to be 
 found but where man pretends to love his neigh 
 bor as himself, and prays for the welfare of those 
 who despitefully use him. The unmerciful prac 
 tice of confining men in jail for debt, had its 
 origin in the dark and unlettered ages of the 
 world, and the cupidity of mankind has retained 
 the practice to the present hour ; but if this mon 
 strous practice has been perpetuated for ages, is 
 that a reason why it should never end ? That 
 men should be compelled by law to pay their 
 debts as far as lies in their power is beyond 
 dispute ; their property ought all to be surren 
 dered to their creditors, and disposed of in an 
 equitable manner, except those articles which are 
 necessary to the support of life, and a small free 
 hold estate for the protection and shelter of the 
 family. 
 
 Sir, he that takes up goods with the intention 
 of never making a just remuneration, degrades 
 himself to the character of a thief ; and to send 
 such a man to prison, at the expense of the cred 
 itor, until restored to his liberty by being allowed 
 to swear that he is poor, is a punishment too 
 light ; but he that has been overtaken by the 
 misfortunes alluded to which, with due deference, 
 may fall to the lot of any member of this Con 
 vention instead of persecution and imprison 
 ment, deserves patronage and protection, and to 
 confine such a man at all, is an outrage upon 
 justice and civilization. The question is not, 
 whether men should be compelled, by law, to pay 
 their debts ; but whether, under our our laws, 
 poverty shall be treated as a crime ? for the law 
 upon our statutes operates indiscriminately upon 
 the fraudulent and unfortunate. Would it not, 
 Sir, be more equitable to punish no man with 
 the loss of his liberty for debt, than to couple the 
 honest man and the knave together, and punish 
 both alike ? Sir, if only the idle and vicious were 
 poor, and only the industrious and honorable 
 were rich, the subject would appear in a far dif 
 ferent light ; but is wealth always acquired by 
 honorable and legal means ? Is it not often pos 
 sessed in superabundance by the worst of men ? 
 Does not vast wealth often owe its origin to fraud 
 or violence ? May not a man be poor, and pos 
 sess all the noble faculties of mind ? 
 
 Successful actions are called wise ones, and, 
 for the most part, they may be so ; but to this rule 
 there are many exceptions. Well matured plans 
 often fail, while those constructed upon appar 
 ently less economy, succeed in human affairs. 
 Can the human mind explore a future period ? 
 
 Is it in man that walketh to direct his steps ? Is 
 the race to the swift, or the battle to the strong, 
 or riches to the man of understanding ? These 
 questions, Sir, are answered from a law that 
 teaches a different doctrine from the law of im 
 prisonment upon our statutes. The farmer that 
 sows, knows not that he shall reap ; the enter 
 prising commercial man of Boston, when he em 
 barks the mass of his fortune on board of his 
 ships, knows not that they will reach their des 
 tined port in safety ; the sea rages, and in a mo 
 ment his fortune is gone. Is he a man of forti 
 tude and integrity, does he possess a cool and 
 sensible courage ? Even if all this can be said of 
 him, it gives him 110 power over the elements, 
 and to this providential event he is bound to 
 submit in silence. lie has no right, as a Chris 
 tian, a philosopher, or a man, to repine ; for all a 
 man has is under the dominion of fortune, and it 
 is but for man to suffer the lot of humanity. 
 There is nothing in this case imagined that does 
 not apply to all unforseen events that await us 
 on the journey of life, whether of minor consid 
 eration or not ; and fortunate might this luckless 
 victim of frowning fate consider himself, were 
 his misfortunes to end with the loss of his prop 
 erty ; but, Sir, they will not, for, under the law 
 of imprisonment, a scene of persecution and cap 
 tivity will open before him ; at the beck of his 
 creditors the prison doors will grate upon their 
 hinges, and open their ponderous jaws to receive 
 him into confinement ; and what renders it intol 
 erable is, that it is cast upon him without just 
 grounds of legal complaint. 
 
 Again, various are the ways by which property 
 is drawn from its rightful possessor by unjust 
 means. The intriguing speculator often subtracts 
 from the property of his credulous neighbor, by 
 slow degrees. The unsuspecting man perceives 
 his property wasting away, and though done be 
 fore his eyes, knows not the cause, until ruin 
 overwhelms him ; and when poor and imprisoned, 
 all must agree that the wrong man has gone to 
 jail. But it may be observed that men are some 
 times actuated by fear to do the things that are 
 just ; and when that fear, which the terrors of the 
 jail excite, is removed, men would not make that 
 exertion to pay their debts they otherwise would. 
 Sir, neither the jail nor its terrors ever made a 
 man rich, nor did they ever add one farthing 
 to his ability to discharge his obligations ; but 
 when once he becomes poor and imprisoned, the 
 imprisonment has a direct tendency to keep him 
 poor, it dampens his courage, and takes away all 
 that dignity that belongs to self-respect. The 
 law accepts of the body of the debtor the oath 
 is administered, and the execution is discharged 
 
67th day.] 
 
 IMPRISONMENT FOR DEBT. 
 
 407 
 
 Tuesday,] 
 
 3TP.ONG WAKD FIIENCH XEYES. 
 
 [July 26th. 
 
 until property can be found. A strange kind of 
 payment, Sir ; for the debtor pays that which is 
 dearer than life, and the creditor gets nothing ! 
 
 It is true that the body cannot be sold but once 
 for the same debt, but why sell it at all if it bring 
 nothing ? If it be a crime to obtain credit or con 
 tract debt, the creditor is a partaker of the guilt 
 if there is any guilt about it for in all transac 
 tions where two are equally concerned, that are 
 attended with evil consequences, which ought to 
 suffer ? Why does a man grant my reqiiest when 
 I am ignorant] y demanding my ruin ? If he 
 grant it knowingly, and suffers by the transaction, 
 it will be but the natural and just consequence 
 that should follow an inconsiderate bounty. 
 
 Should the debtor, from obstinacy, prefer to go 
 to jail and there spend his property rather than 
 to pay his just debts, by the adoption of my 
 amendment he could not get there, and the poor 
 man who has nothing to pay, would not be obliged 
 to suffer the outrage. To punish a man for being 
 blown out of Ids path by a hurricane, goes to 
 overthrow every principle of humanity and jus 
 tice. Confinement is not rendered just by the 
 debtor s being admitted to his oath, nor legal by 
 a statute which contravenes the fundamental and 
 moral maxims of our government. All a man 
 has, in this world, will he give for his life, and 
 often as much for his liberty. A creature must 
 be more or less than human, who can endure 
 confinement and not feel it. Highly as men prize 
 wealth and glory, they fade to nothing, when 
 compared with freedom. 
 
 As summer produces no sunshine to the clouded 
 mind, so in vain shall man look for joy amid the 
 prison s gloom. It has been well said that the law 
 of imprisonment is harmless to the rich, but ter 
 rible to the poor. In the hands of unprincipled 
 men, it has ever been used as a successful engine 
 to oppress and torture the poor. The deep de 
 pravity and fiendish wickedness of the law, will not 
 allow the poor man the miserable privilege of 
 swearing he is poor, without he buys it ; and if he 
 cannot command the pittance, he must lie in jail 
 without limit, at the behest of the creditor. Be 
 tween one and two thousand of the citizens of 
 this State are annually obliged to suffer the out 
 rage of being thrust into cells with felons, there 
 to be educated in habits of demoralization, as a 
 preparatory step to crime and State Prison. 
 
 The amount actually paid to creditors by the 
 exercise of the privilege of imprisonment, is 
 wholly insignificant, as official statistics show that 
 not more than four per cent, upon the sums for 
 which the commitments were made, were realized 
 to the creditors. Sir, four- fifths of the States have 
 abolished imprisonment for debt. Ten States 
 
 have set us the glorious example of constitutional 
 prohibition. 
 
 Sir, I envy no man the glory or happiness he 
 can derive from raising his voice, here or else 
 where, to vindicate or perpetuate this remnant of 
 barbarism, which requires nothing but justice 
 from us to blot it from the statute book forever, 
 and redeem the old Commonwealth from stand 
 ing in the position of isolated barbarism the 
 " Shylock of States." 
 
 Sir, I believe that there is a principle of justice 
 embraced in this amendment, which, if adopted, 
 will brighten the hope and prospects of the un 
 fortunate and despairing, and wring a formidable 
 weapon from the heartless extortioner. 
 
 Mr. STRONG moved that when the question 
 be taken, it be taken by yeas and nays ; which 
 was agreed to, on a division ayes, 57 ; noes, 119 
 more than one-fifth voting therefor. 
 
 Mr. WARD, of Newton moved that the words 
 "upon execution" be inserted after the word 
 "imprisonment," so that as amended, the resolu 
 tion would read as follows : 
 
 Resolved, That the Bill of Rights be so amended 
 that no person in this Commonwealth shall be 
 subject to imprisonment upon execution for debt, 
 founded upon any contract, expressed or implied, 
 unless in case of fraud. 
 
 Mr. WARD said : Until there is a trial for 
 fraud it is not ascertained whether there is a fraud 
 or not, and, therefore, I want to provide that he 
 may be committed upon a writ. I do not under 
 stand that the gentleman means to exclude him 
 from being committed at all. 
 
 The question being then taken on the amend 
 ment offered by Mr. Ward, it was not agreed to. 
 
 Mr. FRENCH, of New Bedford. I am in 
 favor of the amendment of ray friend upon my 
 right, to abolish imprisonment for debt; but I 
 regret that he has called for the yeas and nays. 
 I think it will be carried by a large majority, 
 without taking the yeas and nays, and the calling 
 of the roll will be an unnecessary consumption 
 of time ; and I therefore move a reconsideration 
 of the vote by which the yeas and nays were 
 ordered. 
 
 The question being taken on the motion to re 
 consider, it was agreed to. 
 
 The question then recurred on the motion of 
 Mr. STRONG, that the yeas and nays be ordered 
 on the amendment proposed by him ; and upon a 
 division there were ayes, 47 ; noes, 165 so the 
 yeas and nays were again ordered. 
 
 Mr. KEYES, for Abington. Mr. President: 
 I hope, Sir, that this amendment will prevail. It 
 w r ill at least show a good disposition upon the part 
 
408 
 
 IMPRISONMENT FOR DEBT. 
 
 [67th day, 
 
 Tuesday,] 
 
 KEYES. 
 
 [July 26th. 
 
 of the Convention if they adopt it, whether it 
 shall practically avail much or not. I know that 
 there is an impression existing among nearly all 
 the inhabitants of this State, that there is no such 
 thing as imprisonment for debt unless some dis 
 honesty has been proved ; but still, upon looking 
 over the annual return of the number of persons 
 imprisoned, we find that a vast number have 
 been imprisoned for debt. I was sorry that the 
 speech of the gentleman from Easthampton, (Mr. 
 Strong,) was not more distinctly heard by the 
 members of this Convention ; for I believe if they 
 could have heard it, it would have produced 
 a powerful effect. The gentleman read some 
 statistics, and as I have the advantage of him in 
 one respect, that of having a voice which can be 
 better heard, perhaps it may be of some conse 
 quence that I should repeat the number of persons 
 who have been committed for debt. I hold in my 
 hands, through the kindness of that gentleman, a 
 long and care fully prepared table, exhibiting the 
 number of persons who have been committed to 
 the Boston Jail for debt during the last seventeen 
 years. I will not go into the details of each par 
 ticular year, but the whole number is 9,404. 
 The whole number who were confined for debt 
 in all the prisons in the Commonwealth in the 
 year 1852, was 1,362. But, Sir, without reading 
 these dry statistics any farther than to give a gen 
 eral view, allow me to refer to one statement 
 made by that gentleman, which ought to have a 
 great influence, as it has a direct bearing upon the 
 whole of this matter. 
 
 Out of something like five thousand whom he 
 said were imprisoned for debt in Suffolk County 
 in eight years, only about six per cent, of the 
 demands were collected by that process. I have 
 no doubt, Sir, that more than double that sum 
 was expended in the prosecutions. Now I am 
 not only in favor of the amendment the gentle 
 man has proposed upon the ground of humanity, 
 but because I believe it to be a good thing if it 
 were to be considered simply as a matter of policy. 
 I am also in favor of it on another ground. I hope 
 the time will come when all laws for the collection 
 of debts will be abolished. This idea is, I con 
 fess, somewhat startling, but it is beginning to be 
 regarded with more favor than it was a few years 
 ago, when first announced. I believe that it would 
 be a matter of economy and wisdom, not only 
 in this State, but throughout the world, if 
 the people should be compelled to trust to the 
 honor of men, instead of the law, for the collection 
 and security of debts. The first good effect that 
 would be produced by the adoption of such a 
 measure, would be to restrain the enormous and 
 ruinous credits which are now a curse to the peo 
 
 ple, greater than any one thing else, except it be 
 the use of intoxicating drinks. The disposition 
 to run in debt, and the consumption of the purse 
 which grows out of it, is the great evil of the 
 present state of society. Any provisions that will 
 tend to restrain it must be salutary ; and, there 
 fore, I believe that this amendment will do much 
 good and no damage to anybody. It may some 
 times restrain a man in the exercise of his passions, 
 when, perhaps, they are reasonably excited ; but 
 all such will thank you for it, at any time after 
 his passions become cool. 
 
 If a man knows that he has no power to put 
 any person in prison because he refuses to pay a 
 debt, it will be a caution for him not to trust men 
 whom he does not know to be trustworthy. The 
 effect of this will be to secure him against loss. 
 Under the present law, if he thinks a man can 
 pay who refuses to pay, he may sometimes feel 
 justified in pursuing him with vengeance, while 
 at the same time, if he should be restrained, he 
 would, twenty- four hours afterwards, think better 
 of it, and would be thankful for the law which 
 restrained him. In nine cases out of ten, the 
 creditor is the greatest sufferer, pecuniarily, of 
 the two, under the operations of the present sys 
 tem. 
 
 Sir, we have the credit, all over the country, 
 of having abolished imprisonment for debt, and, 
 at the same time, we imprison nearly fifteen hun 
 dred persons annually, in our jails for debt. It 
 seems to me to be a kind of hypocrisy, for us to 
 have the credit of doing what we don t do. I 
 do not know much of the detail of the laws now 
 in force, in relation to this subject ; I never had 
 much experience in being sued for debt, and I 
 never much helped anybody else to experience on 
 the subject. I would not do it. I would much 
 rather take fifty cents on a dollar, of a debt, if I 
 could get it, than to sue any man for debt ; and 
 I think it would be for the pecuniary interest of 
 every-body in the Commonwealth, if that prin 
 ciple could be universally adopted. I believe 
 that the effect of the adoption of the amendment 
 would be to benefit both debtor and creditor, and 
 the only trouble or mischief that would grow out 
 of it would be, that it might prevent what would, 
 in many cases, be only a justifiable exhibition of 
 vengeance on the part of the creditor. This 
 might go against his grain at the time, but he 
 would be glad of it afterwards, for it would save 
 him a good deal of expense, trouble, and diffi 
 culty. I think, among all the acts of this Con 
 vention, we have not done a great many things 
 that are to be classed among real humanitary re 
 forms ; and it seems to me that it is the duty of 
 Conventions that are held only once in twenty 
 
67th day.] 
 
 IMPRISONMENT FOR DEBT. 
 
 409 
 
 Tuesday,] 
 
 HILLARD STRONG HALLETT HALE LOUD. 
 
 [July 26th. 
 
 or thirty years, to do something to show that the 
 people have advanced in civilization, and that 
 they are doing something to sweep away that 
 barbarism which is part of the nature of man 
 kind in the early stages of society that we are 
 doing something by degrees, to raise ourselves to 
 the standard of a higher and purer civilization. 
 The adoption of this amendment will give an 
 indication that this Convention is animated by 
 such a spirit ; and it will be of some influence in 
 conciliating the good wishes of the people in re 
 gard to the result of our labors here. 
 
 Mr. HILLARD. I know that the Conven 
 tion are not in the mood for long discussions, and 
 I shall only speak a moment or two ; but it seems 
 to be no more than fair that some one member of 
 the Committee on the Bill of Rights, should de 
 fend their own work. This proposition was 
 under discussion in that Committee, and was 
 considered by them, and it was deemed unadvi- 
 sable to propose it for the action of the Conven 
 tion. The law stands now, that no person can 
 be arrested on mesne process, or any action found 
 ed upon contract, unless the person who has the 
 claim, or some one upon his behalf, makes oath 
 that the debtor is about to leave the Common 
 wealth. A person can be arrested on an execu 
 tion ; but, besides that, all persons arrested may 
 discharge themselves by giving bail ; it is made 
 the duty of the officer when he arrests a debtor, 
 whether on mesne process or execution, to com 
 municate to him the provisions of law by which 
 he may discharge himself, on taking what is 
 called the poor debtor s oath, within twenty- four 
 hours. 
 
 If he takes the poor debtor s oath, he is only 
 confined for twenty-four hours, and that is as 
 short a time as it is possible to give notice to the 
 creditor, and make arrangements with the magis 
 trates. The only possible hardship, therefore, is, 
 that sometimes a man may lie in prison twenty- 
 four hours, and that such hardship may some 
 times result from vindictive motives on the part 
 of the creditor ; but, after all, as one gentleman 
 said this morning, it is a balancing of con 
 veniences. I have been about twenty years in the 
 practice of the law ; and for many years, as master 
 in chancery, I administered the insolvent law. I 
 have, therefore, had some opportunity of com 
 paring together the two great classes into which 
 society is divided the debtor and the creditor. 
 The whole current of sympathy has been in favor 
 of the debtor, and nobody has said anything in 
 favor of the creditor. In my opinion, the credi 
 tors, as a class, deserve the sympathy of the 
 community quite as much as the debtors. There 
 is a large class of men, and not unfrequently of 
 
 28 s 
 
 women, too, struggling for subsistence, keeping 
 boarding-houses, or small shops, Avho are obliged 
 to give credit. It is of no use to say that they 
 should not ; they must do so. It is our usage 
 and custom ; and there is a great number of 
 debtors reckless persons who have property, or 
 who, by a little economy or sacrifice, could pay 
 their debts ; and, if called upon, either to pay 
 their debts or to take the poor debtor s oath, they 
 are put into the position of either making the 
 payment or committing perjury. I do think, 
 therefore, that if you take away this power of 
 coercing a debtor in behalf of the claim of a 
 poor but honest creditor, you introduce a very 
 great evil one which, I think, will be found to 
 operate to the injury of many well- deserving 
 members of the community. Regarding the 
 balance of conveniences and inconveniences, I 
 think you had better let the matter stand as it is. 
 
 Mr. STRONG. I wish to modify the amend 
 ment by substituting the word "inhabitant" for 
 the word " person." I think that will better 
 answer the object I have in view. 
 
 Mr. HALLETT. I merely wish to say that 
 with that amendment I think it is perfectly safe 
 to ingraft this provision upon the Constitution. 
 It is an amendment which appears to me to be 
 in accordance with the spirit of the times, and it 
 shall have my vote. 
 
 Mr. HALE, of Bridgewater. It seems to me 
 that we are likely to act with more haste in this 
 matter than is judicious. Let me suppose a case. 
 Suppose that I owe any man a thousand dollars, 
 and not being either able or willing to pay, and I 
 pack up what I have and direct my steps to one 
 of our wharfs, and take passage for California ; is 
 the creditor in such case not to have the right to 
 arrest me ? 
 
 Mr. STRONG. Upon reflection I think I will 
 withdraw the modification I suggested a few 
 moments ago. 
 
 Mr. LORD. I move to amend the amendment 
 by striking out the words " on any contract, 
 express or implied," and insert the words " upon 
 any civil process." 
 
 Mr. STRONG. In the amendment I have 
 proposed, I beg to say that the language I have 
 used is that which is found in the Constitutions 
 of ten of the States of this Union ; and I supposed 
 that under such a state of facts, it would not be 
 inappropriate to insert it in the Constitution of 
 Massachusetts. 
 
 Mr. LORD. My reason for offering this 
 amendment, is, in order that if we adopt this 
 principle at all, we should adopt it entirely ; so 
 that the civil proceedings of one party against 
 another, in the way of contract, should not con- 
 
410 
 
 IMPRISONMENT FOR DEBT. 
 
 [67th day. 
 
 Tuesday," 
 
 LORD BUTLER. 
 
 [July 26th 
 
 stitute a foundation on which either party should 
 put the other into jail. 
 
 Now, there are very few contracts that may be 
 entered into in the Commonwealth of Massachu 
 setts, which may not be converted, by a certain 
 process, into a tort, and being converted into a 
 tort, the imprisonment for debt will remain. Let 
 me put an illustration. There is nothing more 
 generally understood in this Commonwealth, 
 than that females are not liable to imprisonment 
 for debt ; yet the very same provision which says 
 this, also says that they shall not be imprisoned 
 for debt, except when they are charged as trus 
 tees on a process of foreign attachment. If you 
 want, therefore, to put a woman in jail, all that 
 you have to do is, to sue somebody whom she 
 owes, trustee her for a debt which she cannot 
 pay, and then the execution runs against her 
 body. Let me illustrate a little farther. Say 
 that a female is indebted to me and cannot pay. 
 I cannot put her in jail for that debt ; but I am 
 indebted to the gentleman for Marshfield. He 
 sues me, and the woman who owes me is trusteed 
 by him for the amount of her debt to me. But, 
 she cannot pay that debt to him, any more than 
 she could to me. She can no more pay it as 
 trustee for the benefit of another, than she could 
 to the original creditor ; and under such circum 
 stances, by the laws of Massachusetts, to-day, 
 she is liable to imprisonment ; and I have known 
 people try to use that process for purposes of 
 imprisonment. Indeed, I can safely say, that I 
 never knew any one who was aware of the process, 
 who was not willing to use it for that purpose. 
 
 Now, perhaps nine-tenths of all the cases of 
 tort between parties, are substantially such cases 
 as arise on the obligations of contracts ; and 
 when one party recovers a judgment against 
 another for a tort, unless he shall have done 
 something which shall render him amenable to 
 the criminal law of the Commonwealth, I see 
 no more reason why a debt created in that mode 
 should give authority for one man to imprison 
 another, than if it was created upon contract. 
 And, in reality, there is not now any substantial 
 difference in the law between tort and contract ; 
 and some of the cases of contract are so little 
 distinguishable from cases of tort, that the new 
 practice in court provides, that if a plaintiff cannot 
 tell whether it is a tort or a contract that he is going 
 to sue upon, he may declare twice, once on tort, 
 and once on contract, and put at the bottom of 
 his declaration that he does not know which it is, 
 but may sue for the same thing in both wavs. 
 Now, if we declare the principle at all, it seems 
 to me to be proper that we should declare it to 
 tho fullest extent; and when ono party has 
 
 obtained a judgment against another, to be satis 
 fied by money, that he should not have the power 
 to imprison him. That is the only limit we can 
 put to it. It seems to me that if we do not go to 
 this extent, we only half do our work, if we 
 adopt a principle to apply in cases of contract, 
 and not of tort. 
 
 Mr. BUTLER, of Lowell. Perhaps I do not 
 understand this matter, but if I do, I should be 
 sorry to suppose that there would be any danger 
 of its passing through this Convention. I am 
 content, for one, that where men make contracts, 
 and where a thing is a matter of bargain between 
 two men, they should understand that if they 
 make such a contract, they shall not enforce it by 
 arresting and imprisoning the person of either the 
 one or the other. That is one thing to be con 
 sidered ; because with this provision before them 
 in the Constitution, they can make a contract or 
 not, as they please. But when we come to the 
 amendment of the gentleman from Salem, that 
 imprisonment shall not lie for debt in any civil 
 action, I am not willing to go for it. 
 
 The gentleman has stated a rather fanciful case 
 that of trusteeing a woman for a debt. I have 
 been in the practice of law for at least ten or 
 twelve years, and have never known a woman 
 imprisoned under such circumstances, and should 
 like to see or hear from the gentleman who ever 
 did. If there be any one here, I will sit down 
 for him to speak and tell the case. [Mr. B. here 
 paused for some seconds ; but there was no re 
 sponse.] Sir, we represent this Commonwealth 
 here pretty well ; and if a woman had been put 
 into jail under such circumstances, the fact would 
 not have been hidden under a bushel. The case 
 put by the gentleman from Salem, therefore, I 
 cannot but regard as merely fanciful. 
 
 But that is not all the trouble. That gentle 
 man proposes that whatever a man may do under 
 which he can escape punishment in the State 
 Prison, the party whom he may swindle shall be 
 entirely beyond all legal remedy. 
 
 Mr. LOUD. Not quite, Sir. I say that if 
 you put anything in the Constitution in reference 
 to this subject, it should be a provision to this 
 effect that a man shall not be put in jail unless 
 he has violated the criminal law of the Common 
 wealth. 
 
 Mr. BUTLER,. So I understand the gentle 
 man at least. Let us take two or three cases. 
 Suppose that a man comes and steals my horse, 
 and he is put into prison for the felony. He goes 
 to prison and has, it may be, any quantity of 
 money in his pocket, and I want to get redress. 
 He can take his bank bills and shake them in my 
 face and I have no redress. 
 
67th day.] 
 
 IMPRISONMENT FOR DEBT. 
 
 411 
 
 Tuesday,] 
 
 STRONG BUTLER ALLEN HALLETT. 
 
 [July 26th. 
 
 Again, take another case. Suppose that a man 
 seduces a father s daughter, and all the remedy 
 he can get is against his person ; for when sued 
 he may put his property into the hands of a third 
 party, or secretes it, or turns it into money ; and 
 thus he may stand in a court-house and shake 
 his money in that father s face, and say, " True, 
 you have got your judgment, but what are you 
 going to do?" 
 
 Mr. STRONG . If the gentleman from Lowell 
 will allow me to say a word here, I would remind 
 him that the law always presiimes a man to be 
 innocent until he is proved guilty, and a man 
 should not be charged with having fraudulently 
 put away his property until it is satisfactorily 
 proved. When that is proved, he would then be 
 subject to the operation of the statute law, and 
 might be sent to jail on the ground of fraud. 
 
 Mr. BUTLER. Let us see about that. It is 
 not quite so certain. 
 
 Mr. STRONG. Not for debt, but for fraud. 
 
 Mr. BUTLER. But let me go on. Say that 
 I do not owe anybody a dollar to-day, I can then 
 go on and dispose of my property as I please. 
 Then I am sued for seduction ; and I stand up in 
 court with the bills in my hand ; and if the 
 amendment proposed by the gentleman from Sa 
 lem passes, I should like to know what you are 
 going to do about it ? Put me in jail ? That you 
 cannot do. Get the money ? No, you cannot do 
 that either, for it is in my pocket. What fraud 
 is there about that ? It is simply a disposal of 
 my property when I had a perfect right to do so. 
 Or say that a man comes and takes the coat off 
 my back, and says it is his coat. I sue him for 
 it, and get an execution against him. But he 
 replies, " I have the coat upon my back, and what 
 are you going to do about it ? " 
 
 But the difficulty I find, is this : that this is a 
 matter of simple legislation. I am against im 
 prisonment for debt as a matter for the en 
 forcement of a contract; every man can un 
 derstand that ; but when a man does me a wrong 
 when he chooses to do me a wrong, knowing that 
 so long as he has no property he is safe in doing 
 it, if there is 110 way of getting hold of his person, 
 that is another thing. A man knocks me down, 
 beats me, tramples upon me, and when he gets 
 through, I may punish him through the criminal 
 law or not, as I please. But if there was no way 
 of getting hold of his person in that way, why, 
 what remedy have I in prosecuting ? He woxild 
 say to me, pay your lawyer and go home. I do 
 not know but it would be all right ; but I should 
 not like it. 
 
 The gentleman s proposition is too radical for 
 me. When he goes much farther than I do, I 
 
 do not know how to follow him. When I get 
 lost, that is one thing ; but when some one of the 
 stand-bys gets lost, the hold-backs are all gone. 
 There is the difference between the gentleman and 
 myself. My friend from Salem, (Mr. Lord,) is 
 so conservative, usually, that when he goes for a 
 radical doctrine, I begin to think there is some 
 thing in it. He proposes to take away imprison 
 ment in cases of all torts. If you do, that amend 
 ment would leave men without remedies. But 
 if the Convention are ready for it, I am content. 
 I wanted to say sufficient to put myself right, 
 because I shall vote against it ; that is, to impris 
 onment for debt on matters of contract, I am 
 opposed. As to imprisonment in matters of tort, 
 I am in favor of it ; because it is the only mode 
 which, in many cases, you can avail yourself of 
 to collect a debt. Now I agree, that in nine cases 
 out of ten, in matters of contract or debt, by 
 having the power of putting a man into jail you 
 get no pay. I was going to say that in ninety- 
 nine cases out of one hundred, but I will only 
 say in six cases out of ten, for fear of being put 
 into jail for a matter of tort, a man will pay. 
 
 Mr. ALLEN, of Worcester. I think it like 
 ly that the proposition of the gentleman from 
 Southampton may need amendment ; and as there 
 will be an opportunity to consider it before it 
 passes another stage in its progress, gentlemen 
 will have an opportunity in the mean time to 
 give it consideration, and perhaps be able to sug 
 gest such amendments as will prevent it from 
 doing any mischief. For my own part, I will 
 take the proposition for the present as it has been 
 presented by the gentleman from Easthampton. 
 As the opportunity has been afforded to express 
 opinions upon the general principle, whether im 
 prisonment should be allowed, I am willing and 
 ready to vote for the great principle that poverty 
 shall not hereafter be classed with crime. I 
 therefore prefer the proposition now without the 
 amendment, and take opportunity, before the 
 case comes up again, to consider it, and propose 
 any amendments which may be needed ; so that 
 the principle, benevolent in its character, shall not 
 be productive of mischief. 
 
 Mr. HALLETT, for Wilbraham. Let me say 
 one thing which gentlemen understand as well as 
 I do. The distinction between actions of tort and 
 actions of contract, is this : that in action of con 
 tract there is an agreement, or understanding, of 
 some sort, between the two parts. They trade, 
 they confer together, and one of them gets the 
 other s property by his consent. In actions of 
 tort, one man takes another man s property 
 without his consent, or injures his property, or 
 destroys his reputation, all without his consent. 
 
412 
 
 IMPRISONMENT FOR DEBT. 
 
 [67th day. 
 
 Tuesday,] 
 
 LORD HALLETT HILLARD STRONG HOPKINSON. 
 
 [July 26th. 
 
 That is the distinction. Wherever two men get 
 together in any relation in which they trust each 
 other, and where the party owning the property 
 has the right to refuse it, there should be no right 
 of imprisonment for debt. But where a man 
 takes another s property without his consent, or 
 cuts down his trees, destroys his property, or com 
 mits a malicious mischief, that is another case. 
 
 Mr. LORD, of Salem. I desire again to be 
 exactly right about this matter. The position 
 which I propose to stand upon, is this : that pun 
 ishment for offences committed, is the prerogative 
 of the government ; that it is not policy to put 
 the power of punishment of one man in. the 
 hands of his neighbor. That is the general prin 
 ciple upon which I stand, and I would no more 
 give that power to one man the power to punish 
 another, because he w r as mistaken in a contro 
 versy of tort, about a piece of property than I 
 would give it to him to use, because the other 
 did not pay a debt. 
 
 Now, Sir, there has not been a single case 
 mentioned, not one, but what, if this was made 
 a constitutional provision, would be provided 
 against as a matter of fraud. Not one. When 
 the gentleman says that a man will hold bank 
 bills in his hands, and shake them in his face, and 
 say you shan t have them, why, if there is an obli 
 gation to pay a debt, and the man has the bills to 
 pay it, he cannot do it. Because that act is a 
 fraud, one which the legislature will define to be 
 a fraud, and every case which has been put by 
 way of illustration, if it is not a fraud now, will 
 be made a fraud. The gentleman says that when 
 a man is guilty of the commission of malicious 
 mischief, I could have him punished, and the 
 law punishes him would have him punished 
 twice. The Commonwealth already punishes 
 him by complaint and trial for malicious mischief, 
 and in that very case which he has put, the party 
 is liable to imprisonment in the State Prison. 
 Now, will you say, that besides the public rem 
 edy by confinement in State Prison, the party 
 shall have a remedy, and keep the man in State 
 Prison until he rots ? Will you let the public 
 punish, and let the individual punish also ? Be 
 cause, if you allow the party to be sworn out by 
 proving that he has no property, then you admit 
 it to be a mere simple civil obligation. 
 
 Now, Sir, I am charged with breaking loose, 
 and going farther than every-body else. Well, 
 Sir, when I come to a principle which I think is 
 right, I am very apt to follow that principle 
 where it leads, without stopping to consider 
 r-^hether it would be safer for my party to go so 
 far, and then chop around and say it is not safe 
 to go any farther. Wherever I find a principle 
 
 which I believe to be a just and true principle, I 
 adopt it, wherever it is practicable to do so. 
 Well, Sir, I really think there is humanity in this 
 provision, and I only wonder that the reformers 
 have not gone farther and proposed anti-capital 
 punishment. I say, Sir, I am very happy, indeed, 
 to express my gratification at the prospect of the 
 majority doing a humane thing ; but to show that 
 I have no disposition to interfere with it, I with 
 draw the amendment which I proposed ; and I 
 withdraw it for the reason suggested by the gen 
 tleman from Worcester, (Mr. Allen,) that in the 
 next stage there would be an attempt to mature 
 it. 
 
 Mr. HALLETT. I move to strike out the 
 word "persons," and substitute in lieu thereof 
 the word "inhabitants." 
 
 Mr. HILLAKD, of Boston. I would ask 
 whether we have the right to make a provision 
 which shall be applicable to inhabitants, and not 
 to transient persons who may be here, and 
 whether that does not come in conflict with that 
 clause of the Constitution of the United States 
 which gives to the citizens of all the States the 
 same rights, &c., in every State? 
 
 Mr. HALLETT. As it reads now, it is that 
 no "person" of this Commonwealth, &c. Now, 
 I do not know what that means. 
 
 Mr. STRONG, of Easthampton. I will modify 
 my amendment, and substitute the word "in" 
 for the word "of," and that will remove the dif 
 ficulty. 
 
 Mr. HOPKINSON, of Boston. I think, Mr. 
 President, that the Convention w r ill act inconsid 
 erately, if they pass this without farther discus 
 sion. I understand that it is the intention of 
 some gentlemen to consider this matter more 
 maturely in the next stage ; yet it seems to me 
 not amiss to throw out some considerations, af 
 fecting the main question, at this stage. I think 
 the gentleman for Abington, (Mr. Keyes,) put 
 the question upon the right ground. If the pro 
 vision is defensible in any way, it is defensible 
 upon the ground that it is not expedient to take 
 any steps to enforce a debt against a person in 
 any form whatever. I w r ill go farther and I 
 think his proposition went farther to take any 
 steps to enforce a debt against property, because 
 to say that you will not enforce it against the 
 property except when it is visible and open, is 
 about the same thing. The proposition, there 
 fore, is to say, that in all cases founded upon con 
 tract, there shall be no provision by which a debt 
 can be enforced. The distinction between cases 
 of contract and cases of tort, has been pointed 
 out in its broader shades ; but the equity of the 
 case is about the same, in a large number of cases. 
 
67th day.] 
 
 INPHISONMENT FOR DEBT. 
 
 413 
 
 Tuesday,] 
 
 HOPKINSON. 
 
 [July 26th. 
 
 They shadow into each other until you can 
 hardly tell which is contract, and which is tort, 
 and it frequently depends upon the lawyer draw 
 ing the pleadings, whether it sounds in tort, or 
 in contract. For instance, if a man goes to a 
 poor woman and boards with her, and gets his 
 living from her, and then refuses to pay the bill, 
 he does a great wrong, but it is not a fraud ; and, 
 let me say, in. reference to a remark made by an 
 other gentleman, the legislature cannot make it a 
 fraud ; because, when we are framing a Consti 
 tution, we use language as it is, and the legisla 
 ture cannot, by giving a new definition to the 
 words we use, say that the meaning is different 
 from what we intended. 
 
 Another man, by accident, takes yoxir umbrel 
 la, thinking it is his own, but, by mistake, gets 
 your property, and that becomes the foundation 
 of an action of trespass or trover, and the remedy 
 can be enforced by imprisonment of the person. 
 Yet I submit, there is no great difference in favor 
 of the last case over the former. The former is, 
 in fact, much more deserving of imprisonment. 
 The distinction between the case founded on con 
 tract, and the case founded on a claim of prop 
 erty, where the defendant honestly supposed it to 
 be his own, is one without essential difference in 
 morals or equity, and yet you give a remedy in 
 the one case against the person, and in the other 
 only against the property. 
 
 But I pass by all these distinctions, and ask 
 whether it is expedient and right to say that you 
 will take no means whatever to force a man to 
 deliver up his property to pay his debts, unless 
 you can seize upon the property specifically ? And 
 I think all that the gentleman from Lowell, (Mr. 
 Butler,) has said in relation to claims founded on 
 tort, may be said here. A man who owes a debt, 
 with his pockets full of money, and every means 
 in the world to pay it with, can shake that money 
 in your face, and say, I will not pay you. A 
 debtor is going out of the State, having with him 
 ten thousand dollars, visible to your eyes, and 
 yet you cannot take it, you cannot arrest him. 
 You will, say that perhaps the law will provide 
 that, in case a debtor is going to depart from the 
 State, you shall have some means to arrest him. 
 But suppose it were so, unless the man was fool 
 enough to tell that he means to avoid the pay 
 ment of the debt by running out of the State, 
 you cannot, ordinarily, get hold of him. You 
 cannot swear that you have reason to believe that 
 he is going away, for you know nothing about it, 
 and you cannot enforce the payment of the debt. 
 The answer to this is, that the creditor, by consent 
 ing to the credit, does the wrong to himself; ~be- 
 cause he need not to have trusted him. There was 
 
 no necessity of creating a debt, and he need not 
 have subjected himself to a loss. He might have 
 required payment in advance. That is easily 
 said, but every man knows that such a provision 
 will not change the course of business. Every 
 man knows, for instance, that when a person 
 goes to board with a poor woman who gets her 
 living by feeding others, and makes but little at 
 that, and perhaps nothing he does not deposit a 
 pledge in advance, and will not do it. So in 
 most cases where a day laborer engages to work. 
 It is a mockery to say such persons, or small 
 traders, need not give credit. The every-day 
 course of business compels them to give it. 
 
 My friend from Lowell knows that there are 
 hundreds and thousands of persons among his 
 constituents, who live in that way, and who 
 would have no means to collect a debt in the 
 world, without some provision by which a person 
 could be detained until he disclosed his means of 
 payment. It is not, therefore, a premium upon 
 honesty. It is no boon to honest poverty that 
 you propose. It is not a provision which can 
 benefit honest men, or poor men ; but it is a 
 premium upon rascality. It is a boon to that class 
 of persons who mean to get their living from the 
 sweat of other brows, without laboring them 
 selves. That is the amount of it. 
 
 But, it is said, that unless this provision is 
 made, you declare that poverty is a crime. I deny 
 it. The mere fact that a person is detained and 
 held until he discloses his means of payment, is 
 not to charge him with any crime. He need not 
 be restrained in any case as the law now stands, 
 according to my understanding of it, unless it is 
 in the case where he is about to run away without 
 paying his debts, or unless the creditor, by his 
 oath, declares his belief that he is. All the debtor 
 needs, is to go into court, which he can do at any 
 time, without costing him anything, or with cost 
 ing him next to nothing, and take the poor debtor s 
 oath. When he has done that, he cannot be 
 restrained for any such cause. No process can 
 then issue against his body, before j udgment, that 
 is on mesne process, if he can only be restrained 
 upon the oath of the creditor that he is about to 
 escape. So that the only case where a man can 
 be imprisoned for debt, is simply until he makes 
 his oath that he has no property, or that he has 
 given it all up ; and he can make that oath im 
 mediately. It is simply a cheap and effectual bill 
 of discovery. Without such a provision, any dis 
 honest debtor can cover up or conceal his means 
 of payment, and defraud honest creditors. 
 
 I submit, therefore, that it is not worth while 
 to take away this only remedy which small dealers 
 have of collecting their small bills from persons 
 
414 
 
 IMPRISONMENT FOR DEBT. 
 
 [67th day. 
 
 Tuesday,] 
 
 HOFKINSON BREED YEAS. 
 
 [July 26th. 
 
 who are disposed to escape without paying them. 
 I do not believe that such a provision would 
 receive the sanction of this community. 
 
 But, Sir, I do not expect by any argument of 
 mine, to change the action of this Convention. 
 I only desire to protest against the adoption of a 
 measure like this, for I believe it is one of which 
 we shall repent, and one against which a majority 
 of the people will protest. 
 
 I am for having every person escape with his 
 liberty who will disclose his property and deliver 
 it up to his creditors. I can see no stain put upon 
 his character by detaining him until he has an 
 opportunity of doing so, or of taking the poor 
 debtor s oath. I repeat, that such a provision will 
 act as no restraint upon those who are disposed to 
 be honest. It is only a restraint upon those whose 
 intention it is to commit a shameless fraud, by 
 concealing their property, and refusing to pay their 
 debts. It makes no charge upon anybody else. 
 It is entirely a misstatement of the case to say 
 that it charges poverty as a crime. It makes no 
 imputation upon poverty. 
 
 I see no difference in principle, between this 
 provision as it now stands, and that proposed by 
 the gentleman from Salem, (Mr. Lord). There 
 are cases for seduction, for slander, or for oxit- 
 rageous frauds against property, which arc in the 
 nature of crimes, and widely different from debts 
 of contract ; for such cases, imprisonment is an 
 appropriate punishment. But the majority of 
 actions of tort are founded on claims of prop 
 erty, and should be collected in the same manner 
 as claims for debt. They shadow into each other 
 until there is really no distinction between them. 
 Take, for instance, the case of a man who hires a 
 horse to go twenty miles. That would be a con 
 tract. But, suppose he had occasion, when he 
 arrived there, to go a mile or two farther ; he 
 knows that the owner of the horse would not have 
 made the slightest objection, if he had asked to 
 hire the horse to go those two miles, and he will 
 not hesitate to drive or ride the horse there ; but 
 when you come to the matter of law, he is liable 
 for the horse, for the distance for which he hired 
 him only, as a matter of contract ; but if he drives 
 him two miles farther, he is liable to an action of 
 trover or trespass, yet there is no moral distinction 
 between the two cases. It is a mere technical dis 
 tinction. In many, if not most cases, it is a dis 
 tinction without a difference; while in other 
 cases, the distinction is wide and marked. Leave 
 the legislature, then, to make the appropriate dis 
 tinction. It seems to me not worth while to per 
 petuate forever, in your Constitution, a distinction 
 so unfounded and absurd in its general applica 
 tion. 
 
 Mr. BREED, of Lynn. I move the previous 
 question. 
 
 The previous question was seconded, and the 
 main question ordered to be put. 
 
 The question was first upon the amendment, on 
 which the yeas and nays were ordered, and being 
 taken, the result was yeas, 120 ; nays, 45 as 
 follows : 
 
 YEAS. 
 
 Allen, Charles 
 Allis, Josiah 
 Alvord, D. W. 
 At wood, David C. 
 Baker, Hillel 
 Beal, John 
 
 Hobbs, Edwin 
 Howard, Martin 
 Hoyt, Henry K. 
 Hunt, Charles L\ 
 Huntington, George H. 
 Jacobs, John 
 
 Blagden, George W. Kellogg, Giles C. 
 
 Boutwell, Scwell Keyes, Edward L. 
 Bradford, William J. A, Kimball, Joseph 
 
 Breed, Hiram N. Kingman, Joseph 
 
 Briggs, George N. Knight, Jefferson 
 
 Bronson, Asa Knight, Joseph 
 
 Brownell, Joseph Knowlton, J. S. C. 
 
 Buck, Asahel Knowlton, William H. 
 
 Bullock, Rufus Ladd, Gardner P. 
 
 Burlingame, Anson Lawrence, Luther 
 
 Butler, Benjamin F. Lawton, Job G., Jr. 
 
 Cady, Henry Leland, Aldcn 
 
 Carter, Timothy W. Loomis, E. Justin 
 
 Chandler, Arnariah Merritt, Simeon 
 
 Chapin, Daniel E. Morton, Elbridge G. 
 
 Churchill, J. McKean Morton, Marcus 
 
 Cogswell, Nathaniel Morton, Marcus, Jr. 
 
 Copeland, Benjamin F. Morton, William S. 
 
 Crane, George B. Newman, Charles 
 
 Crittenden, Simeon Nute, Andrew T. 
 
 Cross, Joseph W. Ober, Joseph E. 
 
 Dana, Richard II., Jr. Oliver, Henry K. 
 
 Dean, Silas Packer, E. Wing 
 
 Denton, Augustus Partridge, John 
 
 Eaiie, John M. Pease, Jeremiah, Jr. 
 
 Eaton, Lilley Penniman, John 
 
 Edwards, Elisha Perkins, Jesse 
 
 Ely, Joseph M. Phelps, Charles 
 
 Fay, Sullivan Pierce, Henry 
 
 Fisk, Lyman Pomroy, Jeremiah 
 
 Fiske, Emery Pool, James M. 
 
 Freeman, James M. Richards, Luther 
 
 French, Charles A. Rogers, John 
 
 French, Rodney Schouler, William 
 Frothingham, Rich d, Jr. Sheldon, Luther 
 
 Gilbert, Wanton C. Stacy, Eben II. 
 
 Giles, Charles G. Stevens, Joseph L., Jr. 
 
 Giles, Joel Stiles, Gideon 
 
 Gooding, Leonard Strong, Alfred L. 
 
 Gouldiiig, Dalton Sumuer, Char. 
 
 Green, Jabcv, Sumner, Increase 
 
 lladley, Samuel P. Tuber, Isaac C. 
 
 Hallett, B. F. Tuft, Arnold 
 
 Harmon, Phineas Thomas, John W. 
 
 Hawkes, Stephen E. Tilton, Abraham 
 
 Hayden, Isaac Turner, David 
 
 Ha/ewell, Charles C. Tyler, William 
 
 Horsey, Henry Wales, Bradford L. 
 
 Hewes, William H. Wallace, Frederick T. 
 
 Hindsdale, William Walker, Samuel 
 
67th day.] 
 
 IMPRISONMENT FOR DEBT. 
 
 415 
 
 Tuesday,] 
 
 NAYS ABSENT. 
 
 [July 26th. 
 
 Ward, Andrew II. 
 
 Whitney, James S. Davis, John 
 
 Jenks, Samuel H. 
 
 Wheeler, William. F. 
 
 Wilbur, Daniel 
 
 Davis, Robert T. 
 
 Johnson, John 
 
 White, Benjamin 
 White, George 
 
 Wilson, Henry 
 Wilson, Willard 
 
 Dawes, Henry L. 
 Day, Gilman 
 
 Kellogg, Martin R. 
 Kinsman, Henry W. 
 
 
 
 Dehon, William 
 
 Knowlton, Charles L. 
 
 
 NAYS. 
 
 Deming, Elijah S. 
 
 Ladd, John S. 
 
 
 
 Denison, Hiram S. 
 
 Langdon, Wilber C. 
 
 Abbott, Alfred A. 
 
 Knight, Hiram 
 
 De Witt, Alexander 
 
 Lincoln, Frederic W., Jr. 
 
 Adams, Beiijamin P. 
 
 Knox, Albert 
 
 Doane, James C. 
 
 Little, Otis 
 
 Allen, Parsons 
 
 Kulm, George, H. 
 
 Dorman, Moses 
 
 Littleiicld, Tristram 
 
 Bartlett, Russel 
 
 Lincoln, Abishai 
 
 Duncan, Sanmel 
 
 Livermore, Isaac 
 
 Bennett, Zephaniah. 
 
 Miller, Seth, Jr. 
 
 Dunham, Bradish 
 
 Lord, Otis P. 
 
 Bigelow, Edward B. 
 
 Morey, George 
 
 Durgin, John M. 
 
 Lothrop, Samuel K. 
 
 Bird, Francis W. 
 
 Park, John G. 
 
 Eamcs, Philip 
 
 Loud, Samuel P. 
 
 Booth, William S. 
 
 Parker, Samuel D. 
 
 Easland, Peter 
 
 Lowell, John A. 
 
 Boutwell, Geo. S. 
 
 Parris, Jonathan. 
 
 Easton, James, 2d 
 
 Marble, William P. 
 
 Brown, Artemas 
 
 Peabody, Nathaniel 
 
 Eaton, Calvin D. 
 
 Marcy, Laban 
 
 Cooledge, Henry F. 
 
 Perkins, Noah C. 
 
 Edwards, Samuel 
 
 Marvin, Abijah P. 
 
 Davis, Solomon 
 
 Rantoul, Robert 
 
 Ely, Homer 
 
 Marvin, Theophilus R. 
 
 Foster, Abram 
 
 Richardson, Daniel 
 
 Eiistis, William T. 
 
 Mason, Charles 
 
 Fowle, Samuel 
 
 Richardson, Samuel II. 
 
 Farwell, A. G. 
 
 Header, Reuben 
 
 Fowler, Samuel P. 
 
 Ross, David S. 
 
 Fellows, James K. 
 
 Mixter, Samuel 
 
 Gooch, Daniel W. 
 
 Thayer, Willard, 2d 
 
 Fitch, Ezekiel W. 
 
 Monroe, James L. 
 
 Goulding, Jason 
 
 Tilton, Horatio W. 
 
 Foster, Aaron 
 
 Moore, James M. 
 
 Hillard, George S. 
 
 Wallis, Freeland 
 
 French, Charles II. 
 
 Morss, Joseph B. 
 
 Hopkinson, Thomas 
 
 Wilson, Milo 
 
 French, Samuel 
 
 Nash, Hiram 
 
 Hotighton, Samuel 
 
 Winslow, Levi M. 
 
 Gale, Luther 
 
 Nayson, Jonathan 
 
 Hubbard, William J. 
 
 Wood, Natnaniel 
 
 Gardner, Henry J. 
 
 Nichols, William 
 
 Jackson, Samuel 
 
 Wright, Ezekiel 
 
 Gardner, Johnson 
 
 Norton, Alfred 
 
 Kendall, Isaac 
 
 
 Gates, Elbridge 
 
 Noyes, Daniel 
 
 
 
 Gilbert, Washington 
 
 Orcutt, Nathan 
 
 j 
 
 
 Gould, Robert 
 
 Orne, Benjamin S. 
 
 J 
 
 ^ * 
 
 Graves John W. 
 
 Osgood, Charles 
 
 Abbott, Jo.=iah G. 
 
 Brown, Hiram C. 
 
 Gray, John C. 
 
 Paige, James W. 
 
 Adams, Shubael P. 
 
 Brownell, Frederick 
 
 Greene, William B. 
 
 Paine, Benjamin 
 
 Aldrich, P. Emory 
 
 Bryant, Patrick 
 
 Greeiileaf, Simon 
 
 Paine, Henry 
 
 Allen, James B. 
 
 Bullen, Amos II. 
 
 Griswold, Josiah W. 
 
 Parker, Adolphus G. 
 
 Allen, Joel C. 
 
 Biimpus, Cephas C. 
 
 Griswold, Whiting 
 
 Parker, Joel 
 
 Alley, John B. 
 
 Caruthers, William 
 
 Hale, Artemas 
 
 Parsons, Samuel C. 
 
 Andrews, Robert 
 
 Case, Isaac 
 
 Hale, Nathan 
 
 Parsons, Thomas A. 
 
 Appleton, William 
 
 Chapin, Chester W. 
 
 Hall, Charles B. 
 
 Payson, Thomas E. 
 
 Aspinwall, William 
 
 Chapin, Henry 
 
 Hammond. A. B. 
 
 Peabody, George 
 
 Austin, George 
 
 Childs, Josiah 
 
 Hapgood, Lymaii W. 
 
 Perkins, Daniel A. 
 
 Ayres, Samuel 
 
 Choate, Rums 
 
 Hapgood, Seth 
 
 Perkins, Jonathan C. 
 
 Bollard, Alvah 
 
 Clark, Henry 
 
 Haskcll, George 
 
 Phinney, Silvanus B. 
 
 Ball, George S. 
 
 Clark, Ransom 
 
 JIaskins, William 
 
 Plunkett, William C. 
 
 Bancroft, Alpheus 
 
 Clark, Salah 
 
 Hathaway, Elnathan P. 
 
 Powers, Peter 
 
 Banks, Nathaniel P., Jr. Clarke, Alpheus B. 
 
 Hayward, George 
 
 Preston, Jonathan 
 
 Barrows, Joseph 
 
 Clarke, Stillman 
 
 Heard, Charles 
 
 Prince, F. O. 
 
 Bartlett, Sidney 
 
 Cleverly, William 
 
 Heath, Ezra 2d, 
 
 Putnam, George 
 
 Barrett, Marcus 
 
 Coggin, Jacob 
 
 Henry, Samuel 
 
 Putnam, John A. 
 
 Bates, Eliakim A. 
 
 Cole, Lansing J. 
 
 Hewes, James 
 
 Rawson, Silas 
 
 Bates, Moses, Jr. 
 
 Cole, Sumner 
 
 Hey \vood, Levi 
 
 Reed, Sampson 
 
 Beach, Erasmus D. 
 
 Coiikey, Ithamar 
 
 Hobart, Aaron 
 
 Read, James 
 
 Beebe, Janies M. 
 
 Cook, Charles E. 
 
 Hobart, Henry 
 
 Rice, David 
 
 Bell, Luther V. 
 
 Cressy, Oliver S. 
 
 Holder, Nathaniel 
 
 Richardson, Nathan 
 
 Bennett, William, Jr. 
 
 Crockett, George W. 
 
 Hood, George 
 
 Ring, Elkanah, Jr. 
 
 Bigelow, Jacob 
 
 Crosby, Lcander 
 
 Hooper, Foster 
 
 Rockwell, Julius 
 
 Bishop, Henry W. 
 
 Crowell, Seth 
 
 Howland, Abraham H. 
 
 Rockwood, Joseph M. 
 
 Bliss, Gad O. 
 
 Crowninshield, F. B. 
 
 Hunt, William 
 
 Royce, James C. 
 
 Bliss, Willam C. 
 
 Cummings, Joseph 
 
 Huiitington, Asahel 
 
 Sampson, George R. 
 
 Bradbury, Ebenezer 
 
 Curtis, Wilber 
 
 Huntington, Charles P. 
 
 Sanderson, Amasa 
 
 Braman, Milton P. 
 
 Cushman, Henry W. 
 
 Huiiburt, Samuel A. 
 
 Sanderson, Chester 
 
 Brewster, Osmyn 
 
 Cushman, Thomas 
 
 Hurlbut, Moses C. 
 
 Sargent, John 
 
 Brinley, Francis 
 
 Cutler, Simeon N. 
 
 Hyde, Benjamin D. 
 
 Sherman, Charles 
 
 Brown, Adolphus F. 
 
 Davis, Charles G. 
 
 Ide, Abijah M., Jr. 
 
 Sherril, John 
 
 Brown, Alpheus R. 
 
 Davis, Ebenezer 
 
 James, William 
 
 Sikes, Chester 
 
 Brown, Hammond 
 
 Davis, Isaac 
 
 Jenkins, Jolm 
 
 Simmons, Perez 
 
416 
 
 BILL OF RIGHTS, dtc. 
 
 [67th day. 
 
 Tuesday,] 
 
 MORTON SCHOULER CHANDLER ALLEN. 
 
 [July 26th. 
 
 Simonds, John ~W. 
 Sleeper, John S. 
 Smith, Matthew 
 Souther, John 
 Sprague, Mekar 
 Spooiier, Samuel W. 
 Stetson, Caleb 
 Stevens, Charles G. 
 Stevens, Graiiville 
 Stevens, William 
 Stevenson, J. Thomas 
 Storrow, Charles S. 
 Stutson, William 
 Swain, Alanson 
 Talbot, Thomas 
 Taylor, Ralph 
 Thayer, Joseph 
 Thompson, Charles 
 Tilcston, Edmund P. 
 Tower, Ephraim 
 Train, Charles R. 
 Turner, David P. 
 Tyler, John S. 
 Underwood, Orison 
 
 Upham, Charles W. 
 Upton, George B. 
 Yiles, Joel 
 Vinton, George A. 
 Walcott, Samuel B. 
 Walker, Amasa 
 Warner, Marshal 
 Warner, Samuel, Jr. 
 Waters, Asa H. 
 Weeks, Cyrus 
 Westori, Gershom B. 
 Wetmore, Thomas 
 Whitney, Daniel S. 
 Wilbur, Joseph 
 Wilder, Joel 
 Wilkins, John H. 
 Wilkinson, Ezra 
 Williams, Henry 
 Williams, J. B. 
 Wiiin, Jonathan B. 
 Wood, Charles C. 
 Wood, Otis 
 Wood, William H. 
 Woods, Josiah B. 
 
 Absent and not voting, 254. 
 
 So the amendment was adopted. 
 
 The question then recurred upon ordering the 
 resolves to a second reading. 
 
 Mr. WHEELER, of Lincoln, moved that the 
 Convention adjourn. 
 
 Mr. MORTON, of Taunton, remarked that the 
 Convention had this morning imposed upon the 
 Committee on the Judiciary a very important 
 duty, which it would be impossible for them to 
 perform in time unless they were allowed to sit 
 during the session of the Convention. He there 
 fore asked that the motion to adjourn be with 
 drawn, until he could make a motion that the 
 Committee on the Judiciary have leave to sit 
 daring the session of the Convention. 
 
 Mr. WHEELER withdrew the motion. The 
 Orders of the Day were, on motion, laid upon the 
 table. 
 
 On motion of Mr. MORTON, of Taunton, it 
 was then 
 
 Ordered, That the Committee on the Judiciary 
 have leave to sit during the session of the Con 
 vention. 
 
 On motion of Mr. BUTLER, of Lowell, the 
 Orders of the Day were again taken up, the 
 question being upon ordering to a second reading 
 the resolves in relation to the Bill of Rights. 
 
 Mr. SCHOULER, of Boston, gave notice that 
 when the resolves come up again upon their final 
 passage, he should move to amend them. 
 
 The resolves were then ordered to a second 
 reading, when 
 
 On motion of Mr. WHEELER, of Lincoln, 
 
 the Convention adjourned until this afternoon at 
 three o clock. 
 
 AFTERNOON SESSION. 
 The Convention reassembled at three o clock. 
 On motion of Mr. MORTON, of Andover, the 
 Convention resolved itself into 
 
 COMMITTEE OF THE WHOLE, 
 
 Mr. Schouler, of Boston, in the chair, and re 
 sumed the consideration of the resolutions re 
 ported by the Committee on the 
 
 Bill of Rights. 
 
 The Committee first proceeded to consider the 
 following Minority Report : 
 
 COMMONWEALTH OF MASSACHUSETTS. 
 
 In Convention, July 18, 1853. 
 The undersigned, a Minority of the Committee 
 on so much of the Constitution as is contained in 
 the Preamble and Bill of Rights, report that the 
 second Article of the Bill of Rights ought to be 
 so altered as to change the words" for his relig 
 ious profession or sentiments" to the words "for 
 his profession or sentiments concerning religion." 
 So that it will read, if so amended "And no 
 subject shall be hurt, molested or restrained, in 
 his person, liberty or estate, for worshipping God 
 in the manner and season most agreeable to the 
 dictates of his own conscience, or for his profes 
 sion or sentiments concerning religion." 
 
 B. F. HALLETT. 
 
 ANSON BURLINGAME. 
 
 CHARLES SUMNER. 
 
 HENRY WILLIAMS. 
 
 GEO. S. HILLARD. 
 
 Mr. CHANDLER, of Greenfield. I move to 
 amend by striking out the word " subject" in the 
 first line of the article, and inserting the word 
 " person," so that it would read, " and no person 
 shall be hurt," &c. 
 
 I also move to add at the end of the article the 
 following proviso : 
 
 Provided he does not interfere with the rights 
 or privileges of other worshippers. 
 
 I fully approve of the alterations proposed in 
 the Report, but it seems to me that proviso is 
 necessary, because we know that there have been, 
 and are, fanatics who will interfere with the priv 
 ileges of other worshippers. 
 
 Mr. ALLEN, of Worcester. I should like to 
 have some gentleman who is in favor of the alter 
 ations proposed in this Report, state to the Con 
 vention what evils we labor under at the present 
 
67th day.] 
 
 BILL OF RIGHTS. 
 
 417 
 
 Tuesday,] 
 
 LORD SUMNER CHANDLER CHAPIN. 
 
 [July 26th. 
 
 time, and what occasion there is for making any 
 change ? If it is true that there is entire religious 
 freedom in the Commonwealth at this time, then 
 I think no better language can be employed than 
 is contained in the Constitution as it now stands. 
 But perhaps reasons can be given why this change 
 should be made. At any rate, before adopting 
 this amendment, I should be glad to hear the 
 reasons given for proposing it. 
 
 Mr. LORD, of Salem. I desire to know of 
 some member of the minority of the Committee 
 which reported this amendment, whether, in 
 changing the language of the present Constitu 
 tion, which is, that no person shall be hurt, mo 
 lested, &c., for " his religious profession and 
 sentiments," to the words " for his profession or 
 sentiments concerning religion," they mean to 
 say that men may avow in just such terms as 
 they choose, as blasphemously as they please, 
 sentiments in relation to religion, by this provis 
 ion which they recommend, or whether it is to 
 give farther security to persons in their religious 
 professions ? 
 
 Mr. SUMNER, for Marshfield. Does the gen 
 tleman appeal to me ? 
 
 Mr. LORD. I do. 
 
 Mr. SUMNER. I regret that the member for 
 Wilbraham, (Mr. Hallett,) is not in his seat, for 
 this Report, though signed by others, was brought 
 in by him. Still, I am very willing to respond 
 to the gentleman, so far as I comprehend the im 
 port of his inquiry. 
 
 The existing Bill of Rights declares that no 
 subject shall be molested " for his religious pro 
 fession or sentiments." It is now proposed to 
 say "for his profession or sentiments concerning 
 religion." Now, it seems to me, that these two 
 propositions, literally and properly interpreted, 
 are substantially alike. I do not think that un 
 der the original words any person can be justly 
 molested for any profession or sentiments con 
 cerning religion ; always provided that he keeps 
 himself within the accompanying limitation of 
 the Constitution, that is : "provided, he doth not 
 disturb the public peace or obstruct others in their 
 religious worship." 
 
 Mr. CHANDLER, of Greenfield. I desire to 
 ask the gentleman for Marshfield if the proviso 
 he has just read is in the Constitution ? 
 
 Mr. SUMNER. Certainly it is. 
 
 Mr. CHANDLER. Then I will withdraw 
 the proviso I offered. 
 
 Mr. SUMNER. But the gentleman from Sa 
 lem asks, why introduce the proposed amend 
 ment ? For this simple reason. A question has 
 arisen as to the meaning of the language now 
 employed, and it well becomes the Convention, 
 
 29 3 
 
 in revising its Bill of Rights, to place a right of 
 such importance beyound doubt. Surely, while 
 the religious worship of others is unobstructed, 
 and the public peace is undisturbed, every man 
 should be at liberty to speak his mind freely on 
 matters of religion, as on all other matters ; nor 
 can I accept any restraint of this liberty, beyond 
 the requirements of the public peace and the re 
 ligious worship of others. Religious toleration is 
 one of the boasts of our country, as it is one of 
 the aspirations of all generous lovers of liberty 
 everywhere ; but if any person may be molested 
 for his profession or sentiments concerning relig 
 ion, expressed within the existing limitations of 
 the Constitution, permit me to say, Sir, that relig 
 ious toleration does not prevail in reality ; it is a 
 name, and nothing more. Let us now help to 
 make it a reality. 
 
 Mr. LORD, of Salem. I understand that 
 what has merely a tendency to disturb the public 
 peace, will not make a man liable to be punished 
 for a disturbance of the public peace. Now what 
 I ask the gentleman for Marshfield, (Mr. Sumner,) 
 is this : whether an infidel has not the right, un 
 der this provision, to introduce into every shop 
 window in Washington Street, and into every 
 public place in the Commonwealth, the grossest 
 caricatures, burlesques, and denunciations of the 
 Christian religion ? I ask whether he may not, 
 in this way, promulgate his sentiments concern 
 ing religion ? I ask the gentleman to tell me if 
 every caricature, and every burlesque of every 
 person professing the Christian religion, and of 
 every principle of the Christian religion, hung up 
 upon every sign-board and in every shop-window 
 in the Commonwealth, may not, under this pro 
 vision, be a legitimate means for persons to pro 
 mulgate their sentiments concerning religion ? 
 
 Mr. CHAPIN, of Webster, moved to strike 
 out the word "restrained," so that instead of 
 " and no subject shall be hurt, molested or re 
 strained," it would read " and no subject shall be 
 hurt or molested." 
 
 Mr. SUMNER, for Marshfield. I venture to 
 suggest to the gentleman from Greenfield, who 
 proposes to strike out the wonl " subject," that 
 the word " man " would be more appropriate in 
 that particular place than " person." The latter 
 word occurs in the next line of the same clause, 
 and in a sense different from that it would have 
 in the first line. I presume the gentleman would 
 not desire to see such a repetition in the text of 
 the Constitution, even if it were not slightly in 
 congruous also. 
 
 Mr. CHANDLER. I accept the suggestion, 
 and will move that the word man " be inserted 
 in the place of the word " subject," 
 
418 
 
 BILL OF RIGHTS. 
 
 [67th day. 
 
 Tuesday,] 
 
 SUMNEB BRIGGS. 
 
 [July 26th. 
 
 Mr. SUMXEIl. I am glad the gentleman has 
 called attention to this point, though its discussion 
 at this moment seems to interfere with the main 
 question. Unquestionably there are differences 
 of opinion as to the expediency of change in the 
 existing language of the Bill of Rights. All will 
 agree that such a document, from such a pen, 
 drawn from such sources, with such an origin in 
 all respects, and which for more than three- score 
 years and ten has been a household word to the 
 people of Massachusetts, should be touched by 
 the Convention only with extreme care. Its 
 principles are justly dear ; and its very words, 
 vigorous and expressive, though not always those 
 we should select, have become associated in our 
 thoughts with the liberties which they guard. 
 Still, had my desires prevailed in the Committee, 
 there are expressions which I would have remov 
 ed or changed, in order to bring the text into 
 better harmony with our times ; but I was over 
 ruled by the Committee, who preferred to leave 
 the words as they came from the first Convention, 
 and as they are now stamped upon the minds 
 and hearts of the people of the Commonwealth. 
 Some additional provisions I would have incor 
 porated, also; and here again I was overruled, 
 except so far as appears in the Report of the Com 
 mittee ; but I say nothing of these now. I am 
 speaking simply of the language. 
 
 I am not strenuous in condemnation of the 
 word " subject. It does not hurt me to be call 
 ed a subject of the Constitution and laws. But 
 I am bound to confess that there are other equiv 
 alent expressions which would do full as well, and 
 would be more in accordance with the language 
 of our day. It will be observed that this word 
 occurs in several different clauses of the Bill of 
 Rights. In the second clause I would supply its 
 place by " man," according to the motion of the 
 gentleman from Greenfield. In the eleventh 
 clause, where it occurs once ; and in the twelfth 
 clause, where it occurs three times, I would sup 
 ply its place by " person ;" but in the fourteenth 
 and twenty- fifth clauses, in each of which it occurs 
 once, I would substitute " man." In making 
 this change in the last two clauses, we should get 
 back to the original draft of John Adams, which 
 was altered in the Convention from " man " to 
 " subject." 
 
 Mr. DANA, for Manchester. I would suggest 
 the word " citizen." 
 
 Mr. SUMNER. This is a word of art, and is 
 not so comprehensive and universally applicable 
 as the word " man." It may be restricted to 
 persons who enjoy the rights of citizens in Mas 
 sachusetts. 
 
 Mr. BRIGGS, of Pittsfield. I came in when 
 
 the gentleman for Marshfield was speaking, and 
 I would be glad to understand more fully the 
 object of the amendment. If there is any good 
 reason for our interfering to change the form of 
 a sentence in this part of the Bill of Rights, I 
 have no disposition to oppose it. But what rea 
 son there is, any farther, when the gentleman 
 says, as I understand him, that a liberal construc 
 tion gives precisely the same import to both expres 
 sions, but there is some danger of a misconstruc 
 tion of the language of the Bill of Rights as it is 
 now, I do not perceive. Now, what that mis 
 construction is, or may be, I am not informed. 
 I wish for some light on this subject. If there is 
 any import to this new phrase different from that 
 which strikes the ear or the mind, I should like 
 to know what it is. If there is any meaning in 
 the present term which is liable to misconstruction, 
 and in any way to interfere with the unrestrained 
 freedom of religious opinion, I should like to 
 know what it is. I would like to know what 
 that danger of misconstruction is,- or how it may 
 happen that any man in Massachusetts may be 
 restrained, or curtailed, or deprived of any free 
 dom of religious opinion and action consistent 
 with the rights and interests of others, under the 
 present Bill of Rights. When I know what it 
 is, I will go as quick, and as far as any one, to 
 redress it, and to provide against the evil. There 
 fore, I wish to have my friend say what this 
 danger of misconstruction is, that will give a 
 different interpretation to the old form of expres 
 sion, which, he says, by a liberal construction, 
 means the same as the other, if, by this altera 
 tion any such liberty is intended to be given as 
 the gentleman from Salem (Mr. Lord) argues 
 may be given ; if by the language of the present 
 Bill of Rights, which gives to every man freedom 
 of religious opinion, he would not be permitted 
 in language, in words, in actions, or by pictures, 
 to ridicule and bring into disrespect, and treat with 
 ignominy, the Christian religion, and this new 
 mode of expression gives that right, or gives that 
 liberty, I will not go for the change. If there is any 
 thing which will give a man who has no religion, 
 who mocks at religion and its Author, who scoffs at 
 the Creator, and tramples under foot all forms of 
 Christianity, if this amendment will give any 
 man that privilege unrestrained, then I cannot 
 vote for it. But, I say sincerely, I am in doubt. 
 I do not know what different idea is intended to 
 be introduced, and therefore I ask my friend to 
 say what danger there is under the present Bill 
 of Rights, of doing violence to" any man s relig 
 ious opinions, and what new security is given by 
 the new form of expression ? I ask with a sin 
 cere desire to be informed. If necessary, I go 
 
67th day.] 
 
 BILL OF RIGHTS. 
 
 419 
 
 Tuesday,] 
 
 KEYES DANA WILSOX. 
 
 [July 26th. 
 
 for it freely ; but if not necessary, I should not 
 think it wise to change the present form. 
 
 Mr. KEYES, for Abington. The gentleman 
 for Marshfield having once answered that ques 
 tion, and that not being the first question before 
 us, I wish to make a remark on the amendment 
 offered by the gentleman from Greenfield, which 
 is to substitute the word " man " for the word 
 "subject." I suppose that the word "man," is 
 intended to be used in its most comprehensive 
 sense, and to include the whole race. But, it is 
 not always held to mean so much, and the fact 
 that it has been used with other meanings than 
 that, has led the world into some difficulty here 
 tofore. If it is necessary for the harmony of the 
 sentence, I would prefer that the word " individ 
 ual" should be introduced instead of the word 
 " man," although it does not sound quite as well. 
 I think the Convention ought to decide to change 
 the word "subject," for one or the other of 
 the words named. We have no subjects of gov 
 ernment here, we are all partners. "We have 
 subjects of other things, of parties and powers, 
 but not of the government. I had the impres 
 sion that the word subject was stricken out, in 
 most cases, by the Convention of 1820, but it 
 seems it was not. I trust that we live at a period 
 when we shall use no such unmeaning term as 
 the word " subject." I would prefer the word 
 " individual," rather than the word " man," 
 which properly construed, I suppose woxild mean 
 all mankind. .But that word has been so con 
 strued heretofore as to deprive a portion of the 
 people of a portion of their just rights. 
 
 Mr. DANA. I was not in when the question 
 was propounded ; but, if I understand it, it is on 
 striking out the word " subject," and inserting 
 the word "man." The gentleman for Abington 
 proposes to insert the word "individual." I do 
 beg that we shall not call it "individual." Every 
 scholar has an aversion to that word, where it can 
 be avoided. I would rather see all the rust re 
 main, than put the word "individual" into our 
 organic law. 
 
 Mr. KEYES. I do not object to the word 
 " person." 
 
 Mr. DANA. There is a difficulty about that, 
 because it will occur twice in the same sentence. 
 I am decidedly in favor of the word " subject." 
 We discussed the matter in Committee, and there 
 was, at first, a little natural pride exhibited, like 
 that which the gentleman for Abington has mani 
 fested with regard to using the word " subject." 
 We came to the conclusion, finally, that our an 
 cestors who had as much pride as we under 
 stood the matter perfectly well when they called 
 themselves subjects. I do not believe that John 
 
 Adams,or Samuel Adams, or James Bowdoin, made 
 any mistake when they called themselves subjects. 
 They understood perfectly, quite as well as we 
 do, that they were not subjects of any king ; but 
 they took a proper pride in acknowledging that 
 tbat they were subject to the law. They took a 
 proper pride in saying that every Massachusetts 
 man, while he was a sovereign as a law-maker, was 
 the proudest of us a subject to the laws when 
 made. 
 
 Now, I am happy to be able to say, that when 
 ever the people of Massachusetts pass a law, I am 
 subject to that law. I take pride in saying that, 
 while I am one of the sovereigns, as a law-maker, 
 yet, as a la\v-obeyer, I am one of the subjects. 
 For one, I desire to have this term remain, that 
 the idea of duty may remain somewhere in our 
 laws and Constitution. We are too much in a state 
 of feeling which can recognize nothing but power 
 in ourselves. The duty of obedience seems to be 
 almost lost sight of. Now, my pride is not at all 
 affected or hurt by calling myself a subject of the 
 laws, or of the State. I should not wish to be the 
 subject of any one man ; but I am quite willing 
 to be the subject of the State, and to recognize 
 the fact that in one aspect we are all kings, but 
 in another aspect we are all subjects. I submit 
 whether this is not running the matter a little 
 too fine to refuse to acknowledge this relation. 
 Our ancestors acknowledged it in 1780, John 
 Adams, and all the rest ; and, in 1820, there was 
 a discussion on striking out the word " subject," 
 and inserting the word "citizen," or "person." 
 It was opposed, and was rejected by a vote of two 
 hundred and eight to two hundred and twenty- 
 seven in committee ; and afterwards, when it 
 came up in Convention, it was rejected without a 
 count, and the term. " subject " remained. Let 
 it be declared that every man the proudest and 
 wealthiest is still a subject of the State. I hope, 
 therefore, the word may still remain in the Con 
 stitution. 
 
 Mr. KEYES. I wish to say, that if we main 
 tain these two characters of sovereign and subject, 
 that perhaps we may as well introduce the word 
 "sovereign" instead of the word " subject," be 
 cause, according to the gentleman s own state 
 ment, we are just as much sovereign as subject. 
 When that discussion, in 1820, took place, they 
 were not so far advanced as we are by thirty- three 
 years, and the men who then voted in favor of 
 the change expressed the almost universal senti 
 ment of this day, while the men who voted 
 against it expressed sentiments that are outlawed. 
 
 Mr. WILSON, of Natick. I find the word 
 " individual," the word " man," and the word 
 " citizen," used in the Constitution in the same 
 
420 
 
 BILL OF RIGHTS. 
 
 [67th day. 
 
 Tuesday,] 
 
 CHAPIN BIRD HILLAKD. 
 
 [July 26th. 
 
 sense in which this word " subject " is used. 
 In most of the Constitutions of other States, I 
 find the word "person" is generally used. In 
 the new States, the word "person" is used in 
 stead of the word " subject." This is the only 
 State that retains the word " subject," unless it 
 be one or two of the older Southern States. I do 
 not feel degraded by it ; I agree with the gentle 
 man for Manchester, that there is nothing derog 
 atory in it. We are all sovereigns, and all 
 subjects to our own government. But at the 
 same time, I do not like the word very well, and 
 I should prefer to see the word " person " used 
 throughout, as it is used in the Constitutions of 
 most of the new States of the Union. 
 
 Mr. CHAPIN, of Webster. I hope this whole 
 resolution will be voted down ; but, if it must 
 pass, I prefer to have the amendment prevail. I 
 think it is evident that this change which has 
 been proposed, is not presented for the mere pur 
 pose of improving the phraseology of the Consti 
 tution. There is, evidently, a design behind that, 
 and, for one, that design is very evident to my 
 mind; and I hope that before the Convention 
 vote upon this matter, gentlemen will study a 
 little upon the phraseology of this resolution, and 
 they must be able to see the real object of the 
 change proposed. I wish the chairman of the 
 Committee was present to make an explanation. 
 I think we are not sufficiently acquainted with 
 the matter. I hope we shall not impose upon 
 courts of justice the necessity of receiving evidence 
 of persons who disbelieve in a Divine Being. I 
 think this amendment paves the way for such a 
 result. I hope the Convention will be prepared 
 to vote upon the subject understandingly. 
 
 Mr. BIRD, of Walpole. This amendment, 
 which is proposed by the gentleman from Green 
 field, (Mr. Chandler,) is a very grave matter, and 
 I think there is reason for regret that it should 
 have been introduced at this late stage of the 
 session, when the fifteen minute s rule is in opera 
 tion. It should have been brought in when the 
 hour rxile was in force, so that we could have 
 had some speeches that would have opened up 
 the whole question. I only want to say, that if 
 gentlemen are disposed to make any more speech 
 es upon the matter, as to whether we shall use 
 the word " man," " person," or " individual," 
 I shall feel constrained to move that the whole 
 matter be referred to a Special Committee. 
 
 Mr. IIILLARD. I am sorry, Sir, that the 
 gentleman who represents Wilbraham, (Mr. 
 Hallett,) is not here ; this whole matter is a 
 child of his begetting, and I regret that he is not 
 here to look after it. It will be observed that my 
 name is at the bottom of those who propose it ; 
 
 and I will tell the Committee how that happened 
 to be so. The gentleman for Wilbraham intro 
 duced a large number of propositions for the 
 consideration of the Committee. We had a 
 great many meetings and a great many discus 
 sions, and I was obliged to oppose almost all of 
 these propositions. Upon one occasion, when 
 the matter before us was tinder discussion, it so 
 happened that the fact whether it should be re 
 jected or adopted, would depend upon my vote. 
 I had very little choice about the matter, one 
 way or the other ; and so I said to my friend 
 who represents Wilbraham, that, having been so 
 often obliged to go against him from conscien 
 tious motives, now, when I could, with a little 
 straining, go for him, I would willingly do so, 
 and I did so ; and, accordingly, the proposition 
 was adopted. My hand being there to it, I am 
 bound to stand up arid explain what I suppose 
 was the real motive that induced the minority of 
 the Committee to submit the proposition. This 
 whole matter grew out of a single memorable 
 trial in this Commonwealth the trial of the 
 Commonwealth against Kneeland and, were I 
 addressing my friend from Taunton, (Mr. Mor 
 ton,) I should say 
 
 " Quorum pars magna fuisti." 
 
 My friend who represents Wilbraham, was 
 much exercised in his mind with regard to that 
 trial, and I must say that, to some extent, I went 
 along with him. I was one of a certain number 
 of persons, who, under the lead of my revered 
 and beloved friend, the late Dr. Charming, pe 
 titioned the executive to pardon that unhappy 
 man. I understand that the doctrine upon which 
 that conviction was obtained, was this : that al 
 though the Constitution said [Mr. Hallett at 
 this moment entered the hall] I can now say, 
 as Othello said, " Here comes the lady ; let her 
 witness it !" [Laughter.] I understand that the 
 conviction was obtained upon the ground that, 
 although a person could not be called in ques 
 tion for his religious sentiments he might utter 
 any sentiments whatever respecting religion, 
 or respecting Christianity, so long as they were 
 religious sentiments, but the moment he uttered 
 irreligious sentiments he made himself amenable 
 to punishment. From the principle involved in 
 this construction, I must respectfully dissent. It 
 seems to me, that upon this whole subject of re 
 ligion, or more properly, of Christianity, for that 
 is what is meant here, there are two rules. One 
 of these is the rule of the Romish Church, which 
 denies entirely the right of private judgment. 
 They say that the Church, being a body of wise 
 and learned men, running through all periods of 
 
67th day.] 
 
 BILL OF RIGHTS. 
 
 421 
 
 Tuesday,] 
 
 HILLARD CHANDLER. 
 
 [July 26th. 
 
 time, have construed the Bible, and have agreed 
 upon certain doctrines and tenets which are not 
 only to be received as true, but all others are 
 false. No person shall preach or maintain any 
 doctrine opposed to them ; and, not only that, but 
 no person shall think or hold, within the sanctu 
 ary of his own conscience, except on sufferance, 
 any other doctrines than those which the Church 
 approves and teaches. That is the Romish rule 
 or principle, and is consistent and intelligible ; 
 the Protestant doctrine, on the other hand, gives 
 the right of private judgment, without limitation, 
 and without restriction. Between these two, I 
 cannot see any principle on middle ground ; and 
 I do not think it is ever wise to punish a man 
 for his sentiments or opinions concerning re 
 ligion. I humbly think that the trial of Knee- 
 land was unwise as a matter of policy, and that 
 the friends of Christianity can never wisely and 
 judiciously ask that the arm of law shall be 
 stretched forth to silence discussion. So long as 
 a person utters his sentiments, supposing them 
 to be irreligious and opposed to Christianity, so 
 long as he utters them with decency and deco 
 rum, I would not have him punished. Among 
 the petitions presented to the Committee, was one 
 from an individual bearing the name of Le 
 Barnes ; I do not know who he is, but his argu 
 ment was, indirectly and by inference, rather 
 against Christianity ; and, so far as it went, the 
 language was perfectly decorous. His arguments 
 were addressed to the reason ; but the difficulty 
 is, that in almost all cases, those who oppose 
 Christianity are left, by the very infirmity of 
 mind and heart which leads them to do so, to use 
 language which is indecorous, and which should 
 not be tolerated. The difficulty in Kneeland s 
 case was, that there were some expressions which 
 he used, that were outrageous and indecent ; and 
 it was for that reason that the sympathies of the 
 community were not excited in his behalf. Here 
 is the difficulty about this subject. While I 
 would not, on the one hand, restrain or punish 
 any person who should utter irreligious or un- 
 Christian sentiments in decent language, which 
 did not lead to a breach of the peace, I do think 
 that society has a right to punish the man w r ho 
 assails our religious convictions, and wounds our 
 religious sensibilities by indecent, contemptuous, 
 and sarcastic language, such as, from the infirmi 
 ties of humanity, leads inevitably to a breach of 
 the peace. Here is a practical difficulty in legis 
 lation which I hardly know how to meet. On 
 that account, for one, I never would have stirred 
 in this matter ; I never would have presented it 
 to the Convention ; and, frankly, I must Confess 
 that I have very great doubts about the wisdom 
 
 or propriety of submitting it to the action of the 
 people. 
 
 Mr. CHANDLER, of Greenfield, When I 
 first read this resolution, I supposed that it was 
 intended to throw open the whole area to free 
 and perfect competition, and not that any conse 
 quences would be likely to follow, such as have 
 been suggested by the gentleman from Salem, and 
 by the gentleman from Pittsfield gentlemen who 
 are versed in the law, and who are mere capable 
 of judging than I am. I suppose it was not de 
 signed to give countenance to any such thing ; 
 and if such an abuse was to be made of it, I pre 
 sume it would be actionable at law. It would 
 come under the proviso that the legislature have a 
 right to pass all wholesome and reasonable laws ; 
 but I trust that no man, for undertaking to prop 
 agate his sentiments concerning religion, will be 
 subjected to any pains or penalties whatever. I 
 do not know but that my friends will think that 
 I am taking a very strange course for a man in 
 my position ; but what I am about to state I have 
 held for years I have declared my views in the 
 private circle, I have declared them publicly in 
 my own pulpit, and I am ready to declare them 
 in this assembly. I have no sympathy with the 
 Atheist, who denies the God who made him ; I 
 have no sympathy with the Deist, who denies the 
 Savior who bought him with his blood ; and 
 least of all have I any sympathy with the pro 
 fessed Christian minister, who acknowledges Jesus 
 as his highest ideal of human greatness and virtue, 
 and in the same connection proves him guilty of 
 falsehood. No, Sir ! but I hold to free compe 
 tition. I never feel that the citadel of truth is 
 safe, w r hile it is surrounded by bulwarks of human 
 erection ; but, in maintaining the cause of the 
 Bible, I will retreat into the citadel, and open 
 every door, and there I defy the world. It ap 
 pears strange to me that men should often seem 
 to be so afraid of the consequences of certain 
 thing?. It \vas but a year or two since, that I 
 was conversing with a gentleman high in civil 
 society, of education, and in an honorable pro 
 fession, who expressed great fears that geology 
 was going to disprove the Bible ; and with another 
 one who was mightily afraid that the science of 
 phrenology would overthrow the Bible. It ap 
 pears to me that they really did not believe the 
 Bible. I have such a conviction in the truth of 
 the Holy Scriptures, that I say, only leave the 
 Bible free, and leave its friends free to defend and 
 advocate its truth, and you may leave all the op 
 position in the world free to attack it ; I have no 
 fears as to the result. Let them come into free 
 competition ; let every kind of error and delusion 
 speak, only let truth be free to speak in turn, and 
 
422 
 
 BILL OF RIGHTS. 
 
 [67th day. 
 
 Tuesday,] 
 
 FRENCH SUMNER HALLETT. 
 
 [July 26th. 
 
 I fear not. For this reason I approve of this 
 resolution, and hope that it will pass. 
 
 Mr. FRENCH, of New Bedford. I will merely 
 say, Mr. President, that my mind preponderates 
 in favor of the word " person," and I should like 
 to have that word inserted in preference to any 
 other word that I have heard mentioned. There 
 is a national odor about it which I like. 
 
 Mr. SUMNER, for Marshfield. I should like 
 to ask the gentleman if he observed that the word 
 " person " occurs in the second line. I presume 
 he would not desire to have the word occur twice 
 in the same sentence, used in different senses. 
 
 Mr. FRENCH. There might be some differ 
 ence of opinion with regard to that ; it would not 
 be a very strong objection to my mind. As I was 
 saying, there is a kind of national odor about this 
 word " person " ; I find that it is frequently used 
 in the Constitution of the United States. I am 
 in favor of that instrument, let me here remark, 
 although so many persons suppose that I am op 
 posed to it. I find, on a single page of the book 
 before me, that the word "person" occurs three 
 times : " No person shall be convicted of treason," 
 &c. Then again : " A person charged in any 
 State with treason, felony, or other crime," &c. ; 
 and again : " No person held to service or labor," 
 &c. It is a term that is plain and simple, and at 
 the same time most comprehensive. If we turn 
 over, we find in the United States Constitution, 
 in another place, the following : " No person 
 shall be held to answer for a capital or otherwise 
 infamous crime," &c. As the word "person" 
 covers the whole ground, I am decidedly in favor 
 of it. 
 
 Mr. HALLETT. I was unavoidably detained 
 from the Convention until after the hour of 
 meeting, and am indebted to my colleague on the 
 Committee, the gentleman from Boston, for giv 
 ing an explanation of this proposition ; neverthe 
 less, I desire to offer a word or two in order that 
 the Convention may fully understand the views 
 with which this amendment was suggested. I 
 understand that the proposition is now to amend 
 by substituting the word "person" instead of 
 " subject." I will only say in regard to that, 
 that the Convention of 1820, containing men of 
 all sorts of views and feelings, applied their criti 
 cisms to it, and after all, concluded to let it stand. 
 The truth is, there is no word in the English 
 language, applicable to a proposition of this kind, 
 which you can substitute for it. It embraces 
 every human being, who can by any possibility 
 be within the Commonwealth ; and whoever is 
 within the Commonwealth must be subject to 
 general laws of some kind or other. As that is 
 the original word, I propose to leave it as it 
 
 stands ; if the Convention think proper to change 
 it, they can do so, but I will remark that this 
 change will render it necessary to make a great 
 many alterations throughout the Constitution. 
 
 The gentleman says he regards the words pro 
 posed to be changed as comparatively slight and 
 unimportant ; because no man shall be called in 
 question for his religious sentiments or opinions. 
 It is in vain to deny that the practical construction 
 of that is, that a man must have some religious 
 sentiments or other. He shall not be called in 
 question for his religious opinions or sentiments, 
 but he may be for his irreligious opinions. Who 
 is to determine whether his opinions are religious 
 or. irreligious r Your court, and therefore it is 
 an ecclesiastical tribunal. That is the rule of 
 law as it now stands. Let me refer, simply to 
 show the operation of your Bill of Rights in this 
 respect, to the case of the Commonwealth vs. 
 Ivneeland, as laid down in 20 Pickering s Re 
 ports, 208 : " The Universalists believe in a God 
 which I do not, but believe that their God, with 
 all his moral attributes (aside from nature itself) 
 is nothing more than a chimera of their own 
 imagination." This language, which Mr. Knee- 
 land published, w r as blasphemy, as the judges said, 
 because he did not put a comma after God, al 
 though the author of it declared that he intended to 
 have put a comma there. If we put in a comma 
 it will read : " The Universalists believe in a God, 
 which I do not " that is, they believe in a kind 
 of God which I do not, and it is no blasphemy 
 at all. But the judges read it right on, " The 
 Universalists believe in a God which I do not" 
 that is, I do not believe in any God at all " but 
 believe that their God, with all his moral attri 
 butes (aside from nature itself) is nothing more 
 than a chimera of their own imagination; " and 
 then it was blasphemy. The court also held that 
 the law was not designed to prevent the simple 
 and sincere disavowal of belief in the existence or 
 attributes of a Supreme Being, upon suitable and 
 proper occasions, but to punish a denial of God, 
 made wilfully, and with a bad intent ; and the 
 question was very well put, how on earth is a 
 man to deny God at all unless he does it wilfully r 
 If he does not believe in a God, he must do it 
 wilfully ; and yet the judges say that he may 
 deny God, provided he does not do it wilfully ; 
 and they did not punish him for denying God, 
 but merely because he denied him wilfully ! This 
 brings us back to the question, have we arrived 
 at this point in the Commonwealth of Massachu 
 setts, I arrived at it a good many years ago, but 
 perhaps I am as much in advance 011 this point 
 as I am in some others ; I do not know how that 
 may be, have we arrived at this point in religious 
 
67th day.] 
 
 BILL OF RIGHTS. 
 
 423 
 
 Tuesday,] 
 
 HALLETT WHITNEY. 
 
 [July 26th. 
 
 freedom, to say in our Constitution that no man 
 shall be molested or called in question for his 
 opinions or sentiments concerning religion ? As 
 to the manner in which a man shall conduct, that 
 is a very different question. I do not say that he 
 should be allowed to go about the streets and 
 proclaim his doctrines, for you do not allow 
 Father Lamson to go into the streets and proclaim 
 orthodox doctrines, or Mrs. Folsom to go about 
 proclaiming abolition doctrines. Whatever doc 
 trines are proclaimed in the street, if they are 
 likely to create a mob or a riot, so as to disturb 
 the public peace, that is quite another matter ; it 
 makes no difference what doctrines they are. The 
 question for us to decide is, shall we go forward, 
 or shall we go back to the old times in 1637, 
 when Governor Winthrop with his Council 
 that very Council that sits in that secret room 
 called up that poor woman, Ann Hutchinson, for 
 blasphemy, because she said that the ministers of 
 Boston preached the doctrine of works, and not 
 the doctrine of grace? When she said it was 
 matter of conscience, the reply of the inquisitor, 
 Governor Winthrop, was, you must keep your 
 conscience right, or we shall keep it for you. And, 
 accordingly, they did undertake to keep her con 
 science. They banished her ; and, as history tells 
 us, she went from here into the wilds of Connecti 
 cut ; and the court of Massachusetts pursued her 
 even there, and demanded that Connecticut should 
 drive her out from their borders ; and she was 
 driven out and went into Rhode Island among the 
 Indians, and herself and whole family were after 
 wards massacred. Now, Sir, that is a black stain 
 upon the history of the Commonwealth of Massa 
 chusetts a stain which has remained upon it to 
 this day and I hope that by our action upon 
 this amendment, we will to-day wipe out that 
 stain. 
 
 Why, Sir, even as late as 1811, a man could not 
 worship God according to the dictates of his own 
 conscience. He was obliged to contribute to the 
 support of the parish minister. Among the earli 
 est things that I can remember was the tythe 
 man coming to the house of my father, who then 
 contributed some $200 a year for the support of 
 a Baptist minister. The tythe man came and 
 seized his cow, and sold it for the payment of his 
 parish taxes, because his conscience would not 
 let him pay them. That circumstance made an 
 impression upon my mind which I have felt ever 
 since; and from that hour to this, I have thought 
 it wrong to put any restraint upon any man s 
 religious sentiments. With the belief, therefore, 
 that God himself will take care of his own relig 
 ion, which is worth preserving and sustaining, I 
 think we should leave all men to the free exer 
 
 cise of their opinions on matters of religion, with 
 the full liberty to worship God or not to worship 
 him, as they may see fit. 
 
 Mr. WHITNEY, of Boylston. I should like 
 to say one word upon this subject, and also to 
 offer an amendment. I want to give my adhe 
 sion to the remarks of the gentleman on the left 
 of the Chair, (Mr. Chandler,) and simply to say 
 that I hold to that Protestantism which says that 
 every man has a right to read and judge, and 
 decide for himself, in all matters of religion ; for, 
 if we have not this right, then we might as well 
 go back to Catholicism at once. Sir, if I were 
 asked to give a reason to-day why it is that 
 Catholicism, in this and other countries, is gain 
 ing ground, I should say that it was because 
 Protestants had departed from their own Protest 
 antism, and that we need another revolution in 
 this matter ; that every man has become, himself, 
 a sort of pope, on a small scale, and actually ver 
 ifies what one of the popes once said that the 
 Protestants denied the divine authority of the 
 pope, in order that they might set up themselves 
 as popes. 
 
 It seems to me, Sir, to be the worst of infidelity 
 to bring the Word of God to sanction crime. He 
 who brings forward the Bible to sustain the fugi 
 tive slave law, is, in my opinion, among the 
 greatest blasphemers in the world ; yet some of 
 the clergy seem to think that they have a right to 
 blaspheme in this way. Sir, I repeat it, that if 
 they do so, they are among the greatest blasphe 
 mers that have ever been seen on the face of the 
 earth. I am, therefore, in favor of this amend 
 ment ; but I want to offer an amendment to it, 
 because there is an exception that I want to show. 
 I want to say that no man shall be molested for 
 his religious opinions, except those whose opin 
 ions forbid the taking of human life. That ex 
 ception is already made, in fact, and I want to 
 have it acknowledged. The first best thing that 
 a man can have is his rights, and the next best 
 thing to that is to have his wrongs acknowledged. 
 I do not mean to complain here or anywhere else 
 of the action of the Convention. Why should 
 you require that an oath or affirmation should 
 be taken, by which every person by himself or his 
 agent shall accede to the principle of taking away 
 human life? Myself and five or six hundred 
 others cannot take that oath. We have remained 
 outside of the government for more than fifteen 
 years, and men in all ages of the world have 
 stood upon this objection, and I think our senti 
 ments will not die out for some generations to 
 come. We have had an existence since the days 
 of Jesus Christ, and even before his days ; and 
 all we have asked for is a peaceable acknowledg- 
 
424 
 
 BILL OF RIGHTS. 
 
 [67th day. 
 
 Tuesday,] 
 
 HILLARD HALLETT BUTLER CHAPIN BRIGGS. 
 
 [July 26th, 
 
 ment that our religious opinions in this respect 
 shall not deprive us of our civil rights. 
 
 Gentlemen may say, with flippancy, "All you 
 have to do is to take the oath," that "it does not 
 mean anything." But, Sir, to us it does mean 
 something ; it means as much to us as did that 
 oath which was required of Daniel O Connell, 
 that he would support the Protestant succession, 
 which oath he, as a Catholic, could not take ; and 
 he was refused a seat in parliament in conse 
 quence, until the people of Ireland and the Cath 
 olics of England knocked so loudly at the door of 
 that house, that they were obliged to repeal the 
 law, and pass the Catholic Emancipation Act. 
 We stand out upon precisely the same princi- 
 pie. 
 
 Mr. President : I have an amendment to offer, 
 and I will give you the reason why I offer it. 
 
 The PRESIDENT. An amendment is not in 
 order at this time. There are already two amend 
 ments pending. 
 
 Mr. HILLARD. I wish to state, in reply to 
 one or two questions that have been asked here, 
 that I do not understand, nor was it the under 
 standing of the minority of the Committee, that 
 this proposed amendment had anything to do 
 with the exclusion of witnesses on account of their 
 religious belief. That issue was not before us. 
 I do not understand how giving testimony in a 
 court of justice can be said to be a privilege, or 
 how any person can be said to be restrained in 
 the exercise of his religious freedom, in conse 
 quence of being debarred from giving testimony. 
 If there be anybody who is deprived of a privi 
 lege, it is the party who calls the excluded wit 
 ness ; not the witness himself. The former loses 
 a privilege ; not the latter. 
 
 Mr. HALLETT. This is a question of the 
 most important character ; and I should hardly 
 conceive that, in this enlightened age, any court 
 would so construe that provision as to impose 
 any restriction in this respect at all. 
 
 Mr. HILLARD. It is no "molestation" to 
 deny to a man the right to testify. We do not 
 allow parties to testify for themselves. We seal 
 their lips, though they know more about the 
 matter than anybody else. If we exclude them, 
 we may exclude any one else. 
 
 The question was then taken on the amendment 
 to the amendment, which was to strike out the 
 word "subject" and insert in place of it the 
 word " man." 
 
 The amendment to the amendment was rejected. 
 
 Mr. BUTLERi In order that there may be 
 perfect unanimity in regard to this matter, I now 
 move that the word "subject" be stricken out, 
 and the word " one " substituted in its place. It 
 
 will be better English, and will cover the whole 
 ground. It will then read : " It is the right of 
 all men to worship the Supreme Being," &c., 
 and " no one shall be molested," &c. 
 
 Mr. DANA. I move to amend the amend 
 ment of the gentleman from Lowell, by substi 
 tuting "two" for the word "one" [laughter]; 
 and the question will, of course, be taken on the 
 highest number first. [Laughter.] 
 
 Mr. BUTLER. The gentleman for Manches 
 ter is wrong on two grounds : first, in interrupt 
 ing a gentleman who has the floor, [a laugh] ; 
 and secondly, that it is hardly worth while to 
 attempt to meet argument by ridicule. I think, 
 that on examining the matter, the gentleman for 
 Manchester will see, that my proposition makes 
 better English. 
 
 Mr. DANA. What ! " one " better than "sub 
 ject." 
 
 Mr. BUTLER. Yes, " one " better than " sub 
 ject." 
 
 Mr. DANA. I do not agree to that. 
 
 Mr. BUTLER. Well, let us see how it is. 
 You first say, that all men shall worship God, as 
 they please, and then you say, that no " subject" 
 shall be " molested or restrained," c. You thus 
 make a distinction between men and subject. 
 Now, it seems to me, that it is better to say, that 
 all "men" shall worship God as they please, and 
 that 110 " one " shall be molested or restrained in 
 the exercise of that right. I understand it to be 
 better English, and I think it will meet the wishes 
 of every-body, besides. It suits the feelings of 
 my friend for Abington, and also of my friend for 
 Manchester, who wants to be understood as being 
 in favor of this law, although he wants to ridicule 
 my proposition by substituting "two." [A laugh.] 
 
 Mr. CHAPIN, of Webster. I am gratified 
 that the gentleman for Wilbraham, has conceded 
 the points which I made, and I think the Con 
 vention now fully understand the state of the 
 case. I am glad that the attention of the Conven 
 tion has been called to that particular concession. 
 
 Mr. BRIGGS, of Pittsfield. I am gratified, 
 that my friend for Wilbraham has thrown some 
 light upon the subject 
 
 Mr. SUMNER, for Marshfield. Will the gen 
 tleman, from Pittsfield allow me to say, that I 
 would like to answer the question of the gentle 
 man for Wilbraham, by stating, that I thought I 
 had properly answered his question, before he 
 took the floor. That suggestion was not made in 
 Committee, nor did I hear it made by any gentle 
 man before. 
 
 Mr. BRIGGS. One thing is true. The gen 
 tleman for Wilbraham avows his opinion man 
 fully and nobly ; and now, it appears, that 
 
67th day.] 
 
 BILL OF RIGHTS. 
 
 425 
 
 Tuesday,] 
 
 BRIGGS HOLDER JENKS GARDNER PARKER SPOOKER. 
 
 [July 26th. 
 
 though the other gentlemen of the Committee 
 did not apprehend anything of this kind, his 
 opinion is, that the law should be changed on the 
 subject of the admission of witnesses to testify. 
 By the present law, as I understand it, no man 
 who denies the existence of God, is permitted to 
 take an oath in the name of that God whose ex 
 istence he denies. Now, my friend for Wilbra- 
 ham understands the effect of this to be, that the 
 courts would so construe this, as that when a man 
 presents himself as a witness, even if he were an 
 Atheist 
 
 Mr. IIALLETT. I did not say what the courts 
 would do ; but I spoke of the manner in which 
 they ought to construe this provision. 
 
 Mr. BRIGGS. The gentleman avows plainly 
 what he means, and what he thinks ought to be 
 done. Now, if the Convention is prepared to 
 say that there shall be no limitation in regard to 
 the admission of witnesses, then we vote under- 
 standingly. I wanted to know more explicitly 
 what are the evils complained of in the present 
 Constitution, and what the remedy is to be. "We 
 now have something tangible. It is expected, 
 that if this amendment is adopted, it will do 
 away with all restraints upon witnesses produced 
 in court, and that an Atheist is to be sworn in the 
 same manner as the man who believes in the ex 
 istence of that Supreme Being, upon whom he 
 calls when he testifies. 
 
 Mr. HOLDER, of Lynn. Gentlemen are 
 alarmed unnecessarily about this question. I 
 cannot conceive a reason why a person who pro 
 fesses that he does not believe in the existence of 
 a God, should, by that profession, be rendered 
 unfit to give testimony in a court of justice. Sup 
 pose a man does believe in God ; suppose that 
 that man has no regard for humanity, no princi 
 ple, perhaps, as good as we entertain ; suppose he 
 have a God in his imagination equal to Nero in 
 cruelty, invested with everything odious to hu 
 manity, and nothing we could love, but every 
 thing to hate ; I ask if that belief makes his testi 
 mony any better, whether it makes him more 
 humane, more of a man that will tell the truth ? 
 Does not the very fact that a man, who disbe 
 lieves in the existence of a God, acknowledges 
 that disbelief against the contrary prevailing sen 
 timent, go to show that he is an honest and a 
 truthful man ? The idea which I hope we shall 
 entertain of God, if we believe in one at all, is 
 that of the being who has implanted himself in 
 humanity at large. 
 
 When it was suggested to turn the word " sub 
 ject" into the word "man," I thought that 
 was the proper word. Man, understood in his 
 rightful sense, gives power and efficiency to the 
 
 word. I wish we all understood man as he was 
 CDmprehended by that distinguished individual 
 referred to by the gentleman from Boston, (Mr. 
 Hillard). I would that we all understood him 
 in the greatness and power which belongs to him. 
 
 I hope the amendment will be adopted ; for I 
 believe one of the greatest manifestations of 
 true religion is that which gives man his freedom, 
 in every sense of the word. 
 
 Mr. JENKS, of Boston. I should like to in 
 quire of the Chair, what the question is before 
 the Committee ? Is it not the motion to substitute 
 the word " one " for the word " subject ?" 
 
 The CHAIRMAN. It is. 
 
 Mr. JENKS. The word " one," was pro 
 posed by the gentleman from Lowell, (Mr. 
 Butler). Now, it seems to be very difficult, in 
 this wise body, to find any sort of satisfactory 
 synonyme for the word " subject." Some gen 
 tlemen suggest individual," others "man," oth 
 ers " one," others the word " citizen," and so on 
 with others. Now, Sir, if they want to define 
 the thing more nicely, they might as well take a 
 definition which I have seen somewhere in print, 
 and adopt that part of it which defines "man" 
 to be " any intelligent, two-legged, featherless ani 
 mal." [Laughter.] 
 
 Mr. GARDNER, of Seekonk. It seems to me, 
 after all, that the word " subject " is the correct 
 word, and one which is the most explicit. I 
 hope, Sir, we shall not continue to debate this 
 subject any farther. I hope the question will be 
 put now, and the sense of the Convention taken 
 upon the amendment offered by the gentleman 
 from Lowell. 
 
 Mr. PARKER, of Cambridge. The Commit 
 tee on the Bill of Rights, after listening to a dis 
 cussion among themselves very much like that 
 to which the Convention have listened this 
 afternoon, came to the conclusion that it was best 
 to retain so much of the rust of the Bill of Rights 
 as was embraced in the word " subject." 
 
 The question recurring first upon the amend 
 ment offered by the gentleman from Lowell, (Mr. 
 Butler,) it was put, and decided in the affirma 
 tive, upon a division, there being ayes, 150; 
 noes, 107. 
 
 So the amendment was adopted. 
 
 The question next recurred upon the amend 
 ment proposed by the gentleman from Webster, 
 (Mr. Chapin,) to strike out the words " or re 
 strain," and insert the word " or," before the 
 word "molested," and being put, it was decided 
 in the negative. 
 
 So the amendment was rejected. 
 
 Mr. SPOONER, of Warwick. I propose an 
 amendment at the end of the clause, by adding 
 
426 
 
 BILL OF RIGHTS. 
 
 [67th day. 
 
 Tuesday, 
 
 SPOONER LORD HA.LLETT. 
 
 [July 26th. 
 
 the words " or any other subject," so as to pro 
 vide that he shall not be molested for his senti 
 ments, not only on the subject of religion, but on 
 any other subject. 
 
 It may mean scgnething, or it may not. I do 
 not know whether it will. I think the gentle 
 man for Wilbraham, (Mr. Hallett,) will recollect 
 a subject to which it might have applied, some 
 two or three years ago. If I recollect aright 
 for I was not deep in the subject of politics at that 
 time a governor of this Commonwealth the gov 
 ernor who preceded the gentleman from Taunton, 
 (Mr. Morton,) proposed that a certain law be 
 enacted, or rather that a certain law be applied to 
 a certain class of persons who were very closely 
 connected with a peculiar institution which exists 
 in this country. On account of the sentiments 
 of that governor upon that subject, the people of 
 the Commonwealth restrained him from the exer 
 cise of his official duties ; and I would restrain any 
 governor from making any such proposition again. 
 
 The question was then taken upon the amend 
 ment offered by Mr. Spooner, and it was rejected. 
 
 The question then recurring upon the resolu 
 tion, as amended, 
 
 Mr. LORD, of Salem, said: The gentleman 
 who represents Wilbraham, (Mr. Hallett,) very 
 frankly told us, in answer to an inquiry, or rather 
 he volunteered to tell us, that this resolution was 
 intended to take away all disqualification of wit 
 nesses, on account of their want of religious be 
 lief. It was calculated to do that. Now I desire 
 to ask that gentleman if, in his judgment also, 
 this resolution, or the principle of it, if incorpo 
 rated into the Constitution, would prevent the 
 punishment of any person for blasphemy ? 
 
 Mr. HALLETT. If the gentleman will inform 
 me what he means by the word "blasphemy," I 
 will answer him. 
 
 Mr. LORD. Just what the law of the Com 
 monwealth defines blasphemy to be, the contu- 
 meliously denying the existence of the Deity, or 
 reproaching the Deity. Does he mean to say that 
 a man, in the promulgation of his sentiments con 
 cerning religion, may contumeliously deny the 
 existence of a God, or reproachfully deny it ? I 
 ask that because the gentleman knows that the 
 language at the end of the sentence, which is 
 " provided he doth not disturb the public peace," 
 does not affect it, because it is a well settled prin 
 ciple of law, that no words disturb the public place. 
 
 Mr. HALLETT. I desire to ask the gentle 
 man another question.: what does he mean by 
 contumeliously ? What signification has it ? 
 
 Mr. LORD. I will read the statute of the 
 Commonwealth ; and I ask the gentleman wheth 
 er tl}is resolve would abrogate that statute? 
 
 " If any person shall wilfully blaspheme the 
 Holy name of God by denying, cursing, or con 
 tumeliously reproaching God, his creation, gov 
 ernment, the final judging of the world, or by 
 cursing or contumeliously reproaching Jesus 
 Christ or the Holy Ghost, or by cursing, or con 
 tumeliously reproaching the holy word of God, 
 contained in the Holy Scriptures, or exposing 
 them to contempt and ridicule, he shall be pun 
 ished by imprisonment in the State Prison not 
 more than two years, or in the county jail not 
 more than one year, or by fine not exceeding 
 three hundred dollars, and may also be bound to 
 good behavior." 
 
 Now I ask the gentleman, if in his judgment, 
 this resolution is intended to abrogate that statute ? 
 
 Mr. HALLETT. The gentleman is very much 
 distinguished in law, and I presume he must be 
 equally so in polemics, and if that be so, he can 
 explain this matter. I cannot. I do not know 
 what contumeliously means. It may be that it 
 will be explained, as in this volume of Picker 
 ing s Reports, it is said " wilfully" means " in 
 tentionally." 
 
 Mr. LORD. I do not now ask what he un 
 derstands to be the meaning of this, but does he 
 intend to abrogate it ? 
 
 Mr. HALLETT. I mean to abrogate every 
 power of every tribunal, ecclesiastical, civil, relig 
 ious, or irreligious, to call any man in question 
 for the opinions which exist between him and his 
 God. That is what I mean. And then outside 
 of that, outside of religious opinion, there exist 
 the duties which man owes to society. Neither 
 a religious man, or an atheistical man can infringe 
 the duties which he owes to society. This is one 
 thing, and the duty he owes to God another. It 
 is entirely immaterial, as far as we have any con 
 trol over them, what opinions he holds as to his 
 God ; but his duties between himself and his fel 
 low men, are imperative that he shall so use his 
 own as not to injure the possessions of others. 
 He shall, therefore, so hold his opinions, and exer 
 cise them, as not to injure and abuse the opinions 
 of others. In short, in the language of this Con 
 stitution, he may do anything, " provided he doth 
 not disturb the public peace, or obstruct others in 
 their religious worship." A man, therefore, 
 might contumeliously reproach God in his own 
 closet, and injure nobody ; but, if he goes into 
 the streets and does it, it may be another tiling. 
 
 Mr. LORD. Will the gentleman tell me 
 whether he means to have this resolution abrogate 
 that law ? Does he mean that it shall be abro 
 gated or not ? That is the question. 
 
 Mr. HALLETT. I mean that the courts shall 
 put their own construction upon it. 
 
 Mr. LORD. I do not want to know what the 
 courts will do, but what the gentleman means ? 
 
67th day.] 
 
 BILL OF RIGHTS. 
 
 427 
 
 Tuesday,] 
 
 HALLETT LORD KEYES KINGMAN CHAPIN. 
 
 [July 26th. 
 
 He can certainly have no objection to telling us 
 whether he means to abrogate the statute I have 
 read. Of course the gentleman has no conceal 
 ment. 
 
 Mr. HALLETT. The gentleman is very per 
 tinacious upon this subject. I mean, if I can, to 
 give such a direction to the public sentiment, 
 bearing upon the highest judicial tribunal in this 
 Commonwealth, that it shall never again have its 
 courts dishonored by another such trial as has 
 been heretofore alluded to. 
 
 Mr. LORD. That does not precisely answer 
 the question. The Constitution is the supreme 
 law, and this is subordinate. Now does he mean 
 that that shall abrogate this ? That is the ques 
 tion. He certainly can have no objection to tell 
 us what he means. Does he mean that the su 
 preme law shall be in conflict with this subordi 
 nate law? 
 
 Mr. KEYES. I might as well say a word, as to 
 listen any longer to this debate, for it seems to 
 amount to nothing. Now, Sir, so far as regards 
 my own vote upon this subject, I had made up 
 my mind to give it for this resolve. But, as I 
 understand gentlemen, it has been said the prob 
 ability is, that it may do away with the require 
 ment of a belief in God to render a man competent 
 to give his testimony in a court of justice. Now, 
 in voting for this proposition, in that view, it 
 might appear to some men in this Commonwealth 
 that those so voting, are rather loose in their 
 morals or religion. I shall vote for it, I trust, 
 without being understood on that account, to 
 entertain opinions inconsistent with Christianity. 
 I recollect being myself upon a jury where I had 
 the opportunity of getting the opinion of one of 
 the supreme justices of this State on this subject. 
 I recollect that when a witness was brought upon 
 the stand, the counsel proposed to question him 
 upon the subject of his belief in God. The judge 
 who presided in that case, not only indicated, but 
 said in so many words, "Do not do it," so that it 
 was heard by the jury, and I do not know but it 
 was heard by every person in the court-house. 
 It gave me to understand it was his opinion, at 
 least, that it was an improper act. Now, when it 
 comes to this, I for one, should like to have some 
 thing in the Constitution to prevent calling upon 
 God to attest the numerous lies that are told upon 
 the stand. I think if there is any blasphemy 
 anywhere, and any temptation to it, it is that 
 men are compelled to call upon God to witness 
 the streams of falsehoods which are poured out 
 upon the witnesses stand. It is not necessary 
 under our Constitution. Men are supposed to be 
 able to tell the truth without this. One sect of 
 Christians are not required to do it ; and that is a 
 
 sect which all will admit, tell the truth more 
 uniformly and conscientiously, than any other 
 portion of the community, on the stand, and every 
 where else. They affirm under the pains and 
 penalties of perjury alone, and it is those pains 
 and penalties alone which produce any effect. 
 At our custom-houses they have what they call 
 a custom-house oath, which every-body knows, 
 practically means nothing. Were it not for the 
 pains and penalties of perjury, men would be 
 just as well with the oath as without it. It is 
 not so much from my own observations that I 
 have come to this conclusion, as from the testi 
 mony of lawyers and others who are familiar with 
 the proceedings in courts. Therefore, in voting 
 for this, I do it because I believe it is useless to 
 question a man as to his belief in God. Every 
 body believes in some sort of a superintending 
 power, even if it be that of blind chance. What 
 ever belief he may have, he may swear if he 
 pleases before the court that he believes in a God, 
 although he may be what is called an infidel ; and 
 therefore in voting for this proposition, winch may 
 do away with the law forbidding infidels to tes 
 tify, I trust none of us will be charged with any 
 want of awe or reverence for the Supreme Being. 
 
 Mr. KIXGMAN, of West Bridgewater. I 
 shall vote for the amendment of the gentleman 
 for Wilbraham, and I shall do so because I am 
 in favor of the greatest liberty being allowed in 
 this matter. Why, Sir, if the prediction of the 
 distinguished member for Berlin is to be verified, 
 we shall, in less than half a century, have half 
 a million of Chinese in the State of Massachu 
 setts, every one of whom is an idolater. And are 
 these Chinamen to be deprived of the right of 
 testifying in our courts of justice ? It certainly 
 appears to me to be a curious idea. I hope the 
 amendment will be adopted, so that every man, 
 be he Christian, Mahometan, or idolater, may 
 have the privilege of testifying in our courts. 
 
 Mr. CHAPIX, of Webster. Mr. Chairman : 
 I should like very much to know, what are the 
 main objects which this Convention was called to 
 consider. It has been said, that we have assem 
 bled here for certain purposes, and we have con 
 sidered and acted upon many important subjects 
 but, Sir, I claim that we are not here to amend 
 the Constitution in the manner now proposed. 
 The people never contemplated any such amend 
 ment ; they did not expect it ; and are not pre 
 pared to vote upon it. I do not believe that the 
 legal voters of our Commonwealth are ready to 
 deny the existence of a Supreme Being in our 
 courts of justice ; but, on the contrary, they de 
 sire that every man connected -with these pro 
 ceedings, should feel and acknowledge His pres- 
 
428 
 
 BILL OF RIGHTS. 
 
 [67th day. 
 
 Tuesday,] 
 
 CHAPIN HALLETT PLUNKETT ABBOTT. 
 
 [July 26th. 
 
 ence ; that the judge upon the bench should feel 
 it ; that the juries in their boxes should feel it ; 
 and, above all, that the man upon whose testi 
 mony is depending the life and liberty of a fel 
 low creature, should feel that the Great God is 
 looking down upon him, and that the Ilecording 
 Angel is writing every sentence he utters. And 
 yet, from the remarks of the gentleman for Wil- 
 braham, I am inclined to think that the design of 
 this amendment is to effect that very object. 
 
 I wish to say, farther, that as a member of this 
 Convention, and especially from the peculiar re 
 lations 1 sustain to the gentleman for Wilbraham, 
 (Mr. Ilallett,) I have the right to an answer from 
 him, to the question proposed by the gentleman 
 from Salem, (Mr. Lord). It so happens, that 
 the town which he represents is my native place, 
 and I am very happy it has been so ably and cor 
 rectly represented in this Convention. I wish to 
 say, for the encouragement of the gentleman for 
 Wilbraham, that my eye has continually been 
 upon him and his actions, during this session ; 
 and I have had occasion to feel proud that my 
 native town has had so able, just, and learned a 
 representative ; but I do feel a mortification this 
 afternoon, in seeing the town of my birth and 
 education represented in this Minority Report of 
 the Committee. I am sorry that that Report has 
 come from the gentleman for Wilbraham ; I 
 should have much preferred that it had originated 
 in some other quarter, and 1 trust that this Con 
 vention will not fix upon the town of Wilbra 
 ham the disgrace of having originated an amend 
 ment to the Constitution of this character, to be 
 acted upon by the people of the Commonwealth. 
 
 Mr. HALLETT. The gentleman from Web 
 ster has done me great honor in his remarks, and 
 I thank him for his compliments. I will show 
 him, however, that I know his town as well or 
 better than he does himself, and that it is, more 
 over, one of the most liberal towns in the Com 
 monwealth. To convince him of this, I will call 
 to his mind a single fact in its history. 
 
 In 1741, it was undertaken to form a church in 
 Wilbraham, and the reverend ecclesiastics came 
 from Springfield for the purpose of founding it 
 according to the ecclesiastical rules of the West 
 minster platform, or whatever platform they had 
 at that day, which required seven persons to 
 make a church, and they had not but six on 
 whom they could rely for this purpose. What to 
 do they did not know, until at last the expedient 
 was hit upon, to go out in the streets and seize 
 the first man whom they met. They accordingly 
 did so, and found one David Warner walking 
 along, and, without stopping to inquire what was 
 his creed or belief, or whether he had any at all, 
 
 they carried him off and made him join the church, 
 to make up the odd number which was required. 
 
 Now I propose to do the very same thing in 
 regard to the people of this Commonwealth. I 
 desire that they may go into our great State 
 church, without being particularly questioned in 
 reference to these nice points of faith. I would 
 treat every man as David Warner was treated ; 
 and, if I stand well here in other respects, I am 
 confident that that generous constituency who 
 said, when they sent me here, in a letter which I 
 hold in my possession, " that they gave me no 
 other instructions, than to do that which my con 
 science directed me," will sustain me in what 
 ever course I may pursue. At any rate, whether 
 or not I stand well before my constituents, in 
 advocating religious freedom, I know I stand 
 well before my God. 
 
 Mr. PLUNKETT, of Adams. I am not going 
 to detain the Convention by any lengthy remarks, 
 but I merely rose to express my disagreement and 
 opposition to this amendment. I feel that it will 
 not be safe, and my impressions are strengthened 
 by reading the words of one whom every- body 
 revered the words of George Washington. He 
 says : 
 
 " Of all the dispositions and habits which lead 
 to political prosperity, religion and morality are 
 indispensable supports. In vain would that man 
 claim the tribute of patriotism, who should labor 
 to subvert these great pillars of human happiness, 
 these firmest props of the duties of men and citi 
 zens. The mere politician, equally with the pious 
 man, ought to respect and to cherish them. A 
 volume could not trace all their connections with 
 private and public felicity. Let it simply be 
 asked, where is the security for property, for 
 reputation, for life, if the sense of religious obli 
 gation desert the oaths which are the instruments 
 of investigation in courts of justice r And let us 
 with caution indulge the supposition that morality 
 can be maintained without religion. Whatever 
 may be conceded to the influence of refined edu 
 cation on minds of peculiar structure, reason and 
 experience both forbid us to expect that national 
 morality can prevail in exclusion of religious 
 principles." 
 
 Comment on this is unnecessary ; it cannot fail 
 to have its effect upon the minds of those who 
 are in doubt upon the subject, and it may possi 
 bly lead those who have become fixed in their 
 determination in favor of this amendment, to look 
 at it in a different and more rational manner. 
 
 Mr. ABBOTT, of Lowell. Without intending 
 to detain the Convention, I desire to say a single 
 word upon the point raised, as to whether the 
 adoption of this resolution would prevent the 
 courts from deciding, or the legislature from 
 enacting, a law that an Atheist might testify in 
 courts of justice. I do not care what my friend 
 
67th day.] 
 
 BILL OF RIGHTS. 
 
 429 
 
 Tuesday,] 
 
 ABBOTT HALLETT. 
 
 [July 26th. 
 
 for Wilbraham may say upon the subject, but I 
 do not believe for a moment that he will risk his 
 legal reputation by saying that the adoption of 
 such a provision will have the slightest effect upon 
 that question. I think that the criticism of the 
 gentleman from Boston, so far as this matter is 
 concerned, is perfect. It is by no means a privi 
 lege, that men are allowed to testify. No man 
 can go into court and say, " Here I am, gentle 
 men of the jury, I want to testify," but he is 
 obliged to go there it is his duty, and not a 
 privilege. 
 
 In regard to the matter under consideration, I 
 believe there is nothing which would, in the 
 slightest degree, interfere with the passage of this 
 provision which has been reported by the Com 
 mittee. Nor do I believe that it would affect the 
 question, whether a man should be permitted to 
 testify who did not believe in a Supreme Being ; 
 for how can it be said that because you do not 
 allow a man to testify on account of his disbelief 
 in a Supreme Being, you restrain him in his per 
 son, his liberty, or estate ? Besides, the matter 
 has been already passed upon by the supreme 
 court of this State. 
 
 I have made these remarks because I desire 
 that no man may be prevented from voting for 
 this resolution from any supposition that it will 
 affect his religious belief. I am free to say, and 
 will not attempt to disguise it, that if I believed 
 for a moment that this w r ould be the effect of it, 
 whether it is progressive or not, whether it is a 
 work of reform or not, I would cut my right hand 
 off before I would vote for such a proposition. 
 
 The question was then taken upon the adoption 
 of the Report of the minority of the Committee, 
 and upon a division ayes, 121 ; noes, 168 it 
 was decided in the negative. 
 
 So the Report was rejected. 
 
 Mr. HALLETT moved a reconsideration of the 
 vote which had just been taken. 
 
 Mr. LORD, of Salem. Before the question is 
 taken on that motion, I wish that the gentle 
 man for Wilbraham would answer my inquiry. 
 
 The question being taken on the motion to re 
 consider, it was decided in the negative. 
 
 The Committee of the Whole then proceeded 
 to consider the Minority Report of the same Com 
 mittee, on the subject of 
 
 Law Martial. 
 The report was read, as follows : 
 
 COMMONWEALTH OF MASSACHUSETTS. 
 
 In Convention, July 18, 1853. 
 The undersigned, a minority of the same Com 
 mittee, also report. 
 
 To strike out from the 28th article of the Bill 
 of Rights the words " but by the aiithority of the 
 legislature." 
 
 So it will read, if amended, 
 
 No person can in any case be subjected to 
 law martial, or to any penalties or pains by virtue 
 of that law, except those employed in the army 
 or navy, and except the militia in actual service. 
 
 B. F. HALLETT. 
 
 L. MARCY. 
 
 H. WILLIAMS. 
 
 Mr. HALLETT. As this is a matter which 
 is strictly legal in its character, I desire very 
 briefly to explain the purpose of the Committee 
 in making that Report. The Constitution of 1780 
 was adopted during the revolutionary war ; our 
 peace took place in 1783. At that time it was as 
 a law of the camp, deemed necessary to have 
 what is called the power of " martial law," or the 
 " law martial," and it was accordingly inserted 
 in the Bill of Rights rather as a limitation then, 
 than as a power granted, that " no person can in 
 any case be subjected to law martial, or to any 
 penalties or pains by virtue of that law, except 
 those employed in the army or navy, and except 
 the militia in actual service, but by authority of 
 the legislature" 
 
 It will be recollected that at one period during 
 the revolutionary war, Gen. Gage proclaimed 
 martial law in the city of Boston, and the inhab 
 itants were smarting under the recollection of the 
 violence and wrong committed under this law, 
 because, as Blackstone says, martial law is the 
 absence of all law. It was, therefore, provided 
 in the Constitution which was framed in 1780, for 
 the purpose of securing a greater degree of pro 
 tection to the people, that that law should not be 
 put in force except by the consent of the legisla 
 ture. Now, when the State of Massachusetts 
 came into the Union, and the Constitution of the 
 United States recognized the military power as 
 belonging to the United States, Massachusetts 
 conceded that the power of martial law in the 
 Commonwealth became entirely incident to the 
 camp. So that as the present Constitution stands, 
 this clause is wholly unmeaning, and is with but 
 little or no force, except that in certain cases it is 
 giving to the legislature a great, an alarming, and 
 a despotic military power, which, if they choose 
 to exercise, might result in a reign of terror, and 
 in the most disastrous and pernicious conse 
 quences. I do not apprehend that they ever will 
 exercise it ; it is quite certain they never have 
 exercised it ; and even during that stormy and 
 remarkable period known as Shay s Rebellion, 
 when judges were turned out of their courts, 
 
430 
 
 BILL OF RIGHTS. 
 
 [67th day. 
 
 Tuesday,] 
 
 HALLETT. 
 
 [July 26th. 
 
 there was no resort to "martial law." But yet 
 I am opposed ; and it seems to me all who mean 
 to restrain despotic power, should be opposed, 
 upon principle, to allowing that power to remain ; 
 and I hope we shall now take the necessary steps 
 to remove it. If gentlemen have made up their 
 minds in regard to this suhject, I have nothing 
 farther to say ; but if they have not, and as they 
 ought to vote upon this question understandingly, 
 I wish they would give me their attention for a 
 few moments, and see whether or not this change 
 which is proposed, is proper to be made. 
 
 Now, the first question which arises is, " what 
 is martial law ? " And here let me say that it is 
 entirely different from " military law," and this 
 is a fact which I wish military gentlemen to 
 understand. It has no identity whatever with 
 the courts martial held in the militia, or the navy 
 and army. And the amendment which has been 
 proposed by the minority of the Committee, 
 leaves the matter so that no person can in any 
 case be subjected to " martial law," except those 
 employed in the army or navy, and except the 
 militia in actual service. That is the only time 
 when a martial law is required, and then it is the 
 martial law of the camp that law which Gen 
 eral Jackson, in a great and overwhelming emer 
 gency, proclaimed at New Orleans ; and yet, as 
 the martial law of the camp, it left offenders in 
 civil matters subject to all the penalties of civil 
 law for any violation of civil rights. Now under 
 the Massachusetts Constitution, as it stands at 
 present, the legislature may pass what is called a 
 territorial martial law, and may thus declare the 
 whole territory of Massachusetts under such law ; 
 and this extends all over the State, and stops all 
 civil remedies. To show what martial law is, I 
 read from the seventh of Howard s United States 
 Reports, (Luther vs. Borden,) where this subject 
 is very deliberately considered by Judge Wood- 
 bury ; and I am sure that no gentleman who will 
 attentively read this opinion of that very learned 
 judge, as it is here reported, will hesitate, for one 
 moment, about striking out this authority given 
 to the legislature to pass such a monstrous law, 
 or rather a power to abolish all laws except those 
 of a military despotism. He says : 
 
 " How different in its essence and forms, as 
 well as subjects, from the articles of war was the 
 martial law established here over the whole 
 people of Rhode Island, may be seen by advert 
 ing to its character for a moment, as described in 
 judicial as well as political history. It exposed 
 the whole population not only to be seized with 
 out warrant or oath, and their houses broken 
 open and rifled, and this where the municipal 
 law and its officers and courts remained undis 
 turbed and able to punish all offences, but to 
 
 send prisoners, thus summarily arrested, in a 
 civil strife, to all the harsh pains and penalties of 
 courts martial, or extraordinary commissions, and 
 for all kinds of supposed offences. By it, every 
 citizen, instead of reposing under the shield of 
 known and fixed law, as to his liberty, property, 
 and life, exists with a rope round his neck sub 
 ject to be hung up by a military despot at the 
 next lamp-post, under the sentence of some 
 drum-head court martial. (See Simmons s Prac 
 tice of Courts Martial, 40.) See such a trial in 
 Hough on Courts Martial, 383, where the victim 
 on the spot was blown away by a gun, nei 
 ther time, place, nor persons considered. As an 
 illustration how the passage of such a law may 
 be abused, Queen Mary put it in force in 1558, 
 by proclamation merely, and declared that who 
 soever had in his possession any heretical, trea 
 sonable, or seditious books, and did not presently 
 burn them, without reading them or showing 
 them to any other person, should be esteemed a 
 rebel, and without any farther delay be executed 
 by the martial law. (Tyler on Military Law, p. 
 50, chap. 1, sec. 1.) 
 
 " For convincing reasons like these, in every 
 country which makes any claim to political or 
 civil liberty, martial law as here attempted, and 
 as once proclaimed in England, against her own 
 people, has been expressly forbidden there, for 
 near two centuries, as well as by the principles of 
 every other free constitutional government. (1 
 Hallam s Court Hist. 420.) And it would not 
 be a little extraordinary, if the spirit of our insti 
 tutions, both State and National, was not much 
 stronger than in England against the unlimited 
 exercise of martial law over a whole people, 
 whether attempted by any chief magistrate, or 
 even by a legislature." 
 
 This is the definition of martial law, by Judge 
 Woodbury, and it shows the dangerous power 
 which the Constitution places in the hands of the 
 legislature. I hope that the amendment of the 
 Committee will be adopted, and that we shall 
 strike out that power to declare martial law over 
 the whole people and territory of this Common 
 wealth. 
 
 The question was then taken on agreeing to 
 the Report of the Committee, and it was decided 
 in the affirmative. 
 
 The next question to be considered in Com 
 mittee of the Whole, was the following Report 
 of the minority of the same Committee : 
 
 COMMONWEALTH or MASSACHUSETTS. 
 
 Li Convention, July 18, 1853. 
 The undersigned, a minority of the same Com 
 mittee, also Report. 
 
 That there should be added to the fifteenth 
 article of the Bill of Rights the following clause : 
 
 In all trials for criminal offences, the jury, 
 after having received the instruction of the court, 
 
67th day.] 
 
 BILL OF RIGHTS. 
 
 431 
 
 Tuesday,] 
 
 HILLARD BUTLER SCHOULER HALLETT YEAS. 
 
 [July 26th. 
 
 shall have the right in their verdict of guilty or 
 not guilty, to determine the law and the facts of 
 the case. 
 
 B. F. HALLETT. 
 
 ANSON BURLINGAME. 
 
 CHARLES SUMNER. 
 
 L. MARCY. 
 
 CHARLES ALLEN. 
 
 H. WILLIAMS. 
 
 The question being on the adoption of the 
 above Report, 
 
 Mr. IIILLARD, of Boston, said that as this 
 was a very important question, and one which 
 would require to be discussed at length, he de 
 sired that it should be taken up at a time when 
 the members were in a more refreshed condition 
 than at present. The question of enlarging the 
 powers and increasing the rights of juries was 
 one of the greatest importance, and he would 
 submit whether it would not be better for the 
 Committee to rise and report progress, and take 
 up something which would not require so much 
 consideration. 
 
 Mr. WILSON, of Natick. I move that the 
 Committee rise, report progress, and ask leave to 
 sit again. 
 
 The question being taken on agreeing to the 
 motion, it was, upon a division ayes, 118 ; noes, 
 39 decided in the affirmative. 
 
 The Committee accordingly rose, and by their 
 chairman, Mr. Schouler, reported to 
 
 THE CONVENTION, 
 
 That they had had under consideration the several 
 Minority Reports of the Committee on so much 
 of the Constitution as relates to the Bill of Rights, 
 and had rejected the first Report, adopted the 
 second Report, and upon the third and last Re 
 port no action had been taken ; and the Committee 
 accordingly ask leave to sit again. 
 
 Leave was granted. 
 
 The question then being on concurring in the 
 Report of the Committee of the Whole, it was 
 decided in the affirmative. 
 
 Mr. BUTLER, of Lowell. I move that the 
 Committee of the Whole be discharged from the 
 farther consideration of the third Report. 
 
 Mr. SCHOULER. I hope that motion will 
 prevail, as the matter can be considered in Con 
 vention just as well as in Committee. 
 
 The motion was agreed to. 
 
 Mr. HALLETT, for Wilbraham. I move a 
 reconsideration of the vote by which the Conven 
 tion concurred in the Report of the Committee of 
 the Whole, that the first Report of the minority 
 be rejected, ^id upon that question I ask the 
 yeas and nays. 
 
 Mr. LORD, of Salem. I would suggest to the 
 gentleman representing Wilbraham, that it will 
 be better to ask a division of the question now, 
 and call for the yeas and nays upon the final 
 passage. 
 
 Mr. HALLETT. I merely desire to have some 
 stage where the yeas and nays can be taken upon 
 this question of religious freedom. I was not 
 quite rapid enough to keep track of the move 
 ments of the Convention. 
 
 The PRESIDENT. By permission of the 
 Convention the Chair will state that the question 
 is on concurring with the Report of the Com 
 mittee of the Whole that the first resolution 
 ought not to pass. 
 
 Mr. HOLDER, of Lynn, asked for the yeas 
 and nays. 
 
 The yeas and nays were ordered. The question 
 then being taken on concurring in the Report of 
 the Committee, it was decided in the affirmative 
 by the following vote yeas, 133 ; nays, 107. 
 
 Adams, Benjamin P. 
 Aldrich, P. Emory 
 Alvord, D. W. 
 Andrews, Robert 
 Aspinwall, William 
 Atwood, David C. 
 Ayres, Samuel 
 Barrows, Joseph 
 Bartlett, Russel 
 Bartlett, Sidney 
 Bennett, William, Jr. 
 Boutwell, George S. 
 Bradbury, Ebenezer 
 Briiiley, Francis 
 Briggs, George N. 
 Buck, Asahel 
 Bullock, Rufus 
 Cady, Henry 
 Carter, Timothy W. 
 Caruthers, William 
 Chapin, Daniel E. 
 Chapin, Henry 
 Childs, Josiah 
 Churchill, J. McKean 
 Clark, Salah 
 CJeverly, William 
 Cogswell, Nathaniel 
 Cole, Lansing J. 
 Conkey, Ithamar 
 Crittenden, Simeon 
 Crosby, Leander 
 Cross, Joseph W. 
 Crowell, Seth 
 Crowninshield, F. B. 
 Cushman, Thomas 
 Dana, Richard H., Jr. 
 Davis, Solomon 
 Dawes, Henry L. 
 Dean, Silas 
 Denison, Hiram S. 
 
 DeWitt, Alexander 
 Doaiie, James C. 
 Durgin, John M. 
 Eames, Philip 
 Edwards, Elisha 
 Edwards, Samuel 
 Ely, Homer 
 Eustis, William T. 
 Foster, Aaron 
 Foster, Abram 
 Fowle, Samuel 
 Freeman, James M. 
 Gale, Luther 
 Gilbert, Wanton C. 
 Giles, Joel 
 Goulding, Dalton 
 Goulding, Jason 
 Gray, John C. 
 Griswold, Josiah W. 
 Hale, Artemas 
 Hale, Nathan 
 Hammond, A. B. 
 Hapgood, Lyman W. 
 Harmon, Phineas 
 Haskins, William 
 Hayward, George 
 Hersey, Henry 
 Hewes, James 
 Hinsdale, William 
 Hobart, Henry 
 Hobbs, Edwin 
 Houghton, Samuel 
 Howland, Abraham H. 
 Hunt, William 
 Huntington, Charles P, 
 Hurlburt, Samuel A. 
 Hurlbut, Moses C. 
 James, William 
 Jenkins, John 
 Johnson, John 
 
432 
 
 BILL OF RIGHTS. 
 
 [67th day. 
 
 Tuesday,] 
 
 NAYS ABSEXT. 
 
 [July 26th. 
 
 Kellogg, Giles C. 
 
 Richards, Luther 
 
 Pierce, Henry 
 
 Thompson, Charles 
 
 Knight, Joseph 
 
 Richardson, Daniel 
 
 Pool, James M. 
 
 Tilton, Horatio W. 
 
 Kuhn, George II. 
 
 Richardson, Samuel H. 
 
 Ring, Elkanah, Jr. 
 
 Turner, David P. 
 
 Langdoii, Wilber C. 
 
 Royce, James C. 
 
 Ross, David S. 
 
 Underwood, Orison 
 
 Lincoln, F. W., Jr. 
 
 Sanderson, Amasa 
 
 Schouler, William 
 
 Viles, Joel 
 
 Littlefield, Tristram 
 
 Sargent, John 
 
 Simonds, John W. 
 
 Wallace, Frederick T. 
 
 Livermore, Isaac 
 
 Sikes, Chester 
 
 Sprague, Melzar 
 
 Wallis, Freeland 
 
 Loorais, E. Justin 
 
 Smith, Matthew 
 
 Spooner, Samuel W. 
 
 Walker, Amasa 
 
 Miller, Seth, Jr. 
 
 Souther, John 
 
 Stevens, William 
 
 Warner, Samuel, Jr. 
 
 Mixter, Samuel 
 
 Stetson, Caleb 
 
 Stiles, Gideon 
 
 Weston, Gershom, B. 
 
 Morey, George 
 
 Stevens, Charles G-. 
 
 Strong, Alfred L. 
 
 Williams, J. B. 
 
 Morton, Marcxis, Jr. 
 
 Stevens, Granville 
 
 Sumner, Charles 
 
 Wilson, Henry 
 
 Morton, William S. 
 
 Sumner, Increase 
 
 Swain, Alanson 
 
 Wilson, Willard 
 
 Noyes, Daniel 
 
 Talbot, Thomas 
 
 Taft, Arnold 
 
 Wood, Charles C. 
 
 Oliver, Henry K. 
 
 Turner, David 
 
 Thayer, Joseph 
 
 Wood, Otis 
 
 Orcutt, Nathan 
 
 Tyler, William 
 
 Thayer, Willard, 2d 
 
 
 Packer, E. Wing 
 
 Wales, Bradford L. 
 
 
 
 Paine, Benjamin 
 
 Waters, Asa H. 
 
 ABSENT. 
 
 Paine, Henry 
 Parker, Adolplms G. 
 Parker, Joel 
 Plunkett, William C 
 Pomroy, Jeremiah 
 Preston, Jonathan 
 
 Weeks, Cyrus 
 Wetmore, Thomas 
 Wheeler, William F. 
 White, Benjamin 
 White, George 
 Wilder, Joel 
 
 Abbott, Alfred A. 
 Allen, Charles 
 Allis, Josiah 
 Appleton, William 
 Ballard, Alvah 
 
 Eaton, Lilley 
 Farwell, A. G. 
 Fay, Sullivan 
 Fellows, James K. 
 Fisk, Lvman 
 
 __. , 
 
 Rawson, Silas 
 Head, James 
 !R*GGcl Scumoson 
 
 Wilson, Milo 
 Winn, Jonathan B. 
 
 Ball, George S. 
 Banks, Nath l P., Jr. 
 Bates, Eliakim A. 
 
 Fiske, Emery 
 Fitch, Ezekiel W. 
 Fowler, Samuel P. 
 
 
 
 Beach, Erasmus D. 
 
 French, Charles II. 
 
 
 
 Beebe, James M. 
 
 French, Rodney 
 
 
 NATS. 
 
 Bell, Luther V. 
 
 Gardner, Henry J. 
 
 Abbott, Josiah G. 
 
 French, Charles A. 
 
 Bennett, Zephaniah 
 
 Gardner, Johnson 
 
 Adams, Shubael P. 
 
 French, Samuel 
 
 Bigelow, Edward B. 
 
 Gates, Elbridge 
 
 Allen, James B. 
 
 Frothingham, R., Jr. 
 
 Bigelow, Jacob 
 
 Gooding, Leonard 
 
 Allen, Joel C. 
 
 Gilbert, Washington 
 
 Bishop, Henry W. 
 
 Gould, Robert 
 
 Allen, Parsons 
 
 Giles, Charles G. 
 
 Blagden, George W. 
 
 Graves, John W. 
 
 Alley, John B. 
 
 Gooch, Daniel W. 
 
 Bliss, Gad O. 
 
 Greene, William B. 
 
 Austin, George 
 
 Green, Jabez 
 
 Bliss, William C. 
 
 Greenleaf, Simon 
 
 Baker, Hillel 
 
 HaUett, B. F. 
 
 Braman, Milton P. 
 
 Griswold, Whiting 
 
 Bancroft, Alpheus 
 
 Hawkes, Stephen E. 
 
 Brewster, Osmyn 
 
 Hadley, Samuel P. 
 
 Barrett, Marcus 
 
 Hazewell, Charles C. 
 
 Bronson, Asa 
 
 Hall, Charles B. 
 
 Bates, Moses, Jr. 
 
 Hillard, George S. 
 
 Brown, Adolphus F. 
 
 Hapgood, Seth 
 
 Beal, John 
 
 Holder, Nathaniel 
 
 Brown, Alpheus R. 
 
 Haskell, George 
 
 Bird, Francis W. 
 
 Hopkinson, Thomas 
 
 Brown, Artemas 
 
 Hathaway, Elnathan P. 
 
 Booth, William S. 
 
 Howard, Martin 
 
 Bullen, Amos H. 
 
 Hayden, Isaac 
 
 Boutwell, Sewell 
 
 Iloyt, Henry K. 
 
 Bumpus Cephas C. 
 
 Heard, Charles 
 
 Bradford, William J. 
 
 A Hunt, Charles E. 
 
 Chapin, Chester W. 
 
 Heath, Ezra, 2d, 
 
 Breed, Hiram N. 
 
 Hyde, Benjamin D. 
 
 Choate, Rufus 
 
 Henry, Samuel 
 
 Brown, Hammond 
 
 Jackson, Samuel 
 
 Clark, Henry 
 
 Hewes, William H. 
 
 Brown, Hiram C. 
 
 Kendall, Isaac 
 
 Clarke, Stillman 
 
 Heywood, Levi 
 
 Brownell, Frederick 
 
 Knight, Hiram 
 
 Coggin, Jacob 
 
 Hobart, Aaron 
 
 Brownell, Joseph 
 
 Knight, Jefferson 
 
 Cook, Charles E. 
 
 Hood, George 
 
 Bryant, Patrick 
 
 Knowlton, J. S. C. 
 
 Cooledge, Henry F. 
 
 Hooper, Foster 
 
 Burlingame, Anson 
 
 Knowlton, William H. 
 
 Copeland, Benjamin F. 
 
 Hubbard, William J. 
 
 Butler, Benjamin F. 
 
 Knox, Albert 
 
 Crane, George B. 
 
 Huntington, Asahel 
 
 Case, Isaac 
 
 Ladd, Gardner P. 
 
 Cressy, Oliver S. 
 
 Huntiiigton, George H. 
 
 Chandler, Amariah 
 
 Little, Otis 
 
 Crockett, George W. 
 
 Ide, Abijah M., Jr. 
 
 Clark, Ransom 
 
 Marble, William P. 
 
 Cummings, Joseph 
 
 Jacobs, John 
 
 Clarke, Alpheus B. 
 
 Mason, Charles 
 
 Curtis, Wilber 
 
 Jenks, Samuel H. 
 
 Cole, Sumner 
 
 Merritt, Simeon 
 
 Cushman, Henry W. 
 
 Kellogg, Martin R. 
 
 Davis, Ebenezer 
 
 Monroe, James L. 
 
 Cutler, Simeon N. 
 
 Keyes, Edward L. 
 
 Day, Gilman 
 
 Newman, Charles 
 
 Davis, Charles G. 
 
 Kimball, Joseph 
 
 Deming, Elijah S. 
 
 Nichols, William 
 
 Davis, Isaac 
 
 Kingman, Joseph 
 
 Deiiton, Augustus 
 
 Nute, Andrew T. 
 
 Davis, John 
 
 Kinsman, Henry W. 
 
 Duncan, Samuel 
 
 Osgood, Charles 
 
 Davis, Robert T. 
 
 Knowlton, Charles L. 
 
 Dunham, Bradish 
 
 Partridge, John 
 
 Dehon, William 
 
 Ladd, John S. 
 
 Earle, John M. 
 
 Perkins, Daniel A. 
 
 Dorman, Moses 
 
 LawrenceJLiuther 
 
 Easton, James, 2d, 
 
 Phelps, Charles 
 
 Easland, Peter 
 
 Lawton, Job G., Jr. 
 
 Ely, Joseph M. 
 
 Phinney, Silvamis B. 
 
 Eaton, Calvin D. 
 
 Leland, Alden 
 
67th day.] 
 
 BILL OF RIGHTS. 
 
 433 
 
 Tuesday,] 
 
 DANA HALLETT BUTLER. 
 
 [July 26th. 
 
 Lincoln, Abishai 
 Lord, Otis P. 
 Lothrop, Samuel K. 
 Loud, Samuel P. 
 Lowell, John A. 
 Marcy, Laban 
 Marvin, Abijah P. 
 Marvin, Theophilus R. 
 Meader, Reuben 
 Moore, James M. 
 Morss, Joseph B. 
 Morton, Elbridge G. 
 Morton, Marcus 
 Nash, Hiram 
 Nayson, Jonathan 
 Norton, Alfred 
 Ober, Joseph E. 
 Orne, Benjamin. S. 
 Paige, James W. 
 Pai-k, John G. 
 Parker, Samuel D. 
 Parris, Jonathan 
 Parsons, Samuel C. 
 Parsons, Thomas A. 
 Payson, Thomas E. 
 Peabody, George 
 Peabody, Nathaniel 
 Pease, Jeremiah, Jr. 
 Pemumaii, John 
 Perkins, Jesse 
 Perkins, Jonathan C. 
 Perkins, Noah C. 
 Powers, Peter 
 Prince, F. O. 
 Putnam, George 
 Putnam, John A. 
 Rantoul, liobert 
 Ilice, David 
 Richardson, Nathan 
 Rockwell, Julias 
 Rockwood, Joseph M. 
 
 Rogers, John 
 Sampson, George R. 
 Sanderson, Chester 
 Sheldon, Luther 
 Sherman, Charles 
 Sherril, John 
 Simmons, Perez 
 Sleeper, John S. 
 Stacy, Eben H. 
 Stevens, Joseph L., Jr. 
 Stevenson, J. Thomas 
 Storrow, Charles S. 
 Stutson, William 
 Taber, Isaac C. 
 Taylor, Ralph 
 Thomas, John "W. 
 Tileston, Edmund P. 
 Tilton, Abraham 
 Tower, Ephraim 
 Train, Charles R. 
 Tyler, John S. 
 TIpham, Charles "W. 
 Upton, George B. 
 Vinton, George A. 
 Walcott, Samuel B. 
 Walker, Samuel 
 Ward, Andrew H. 
 Warner, Marshal 
 Whitney, Daniel S. 
 Whitney, James S. 
 Wilbur, Daniel 
 Wilbur, Joseph 
 Wilkins, John II. 
 Wilkinson, Ezra 
 Williams, Henry 
 Winslow, Levi M. 
 Wood, Nathaniel 
 Wood, William II. 
 Woods, Josiah B. 
 Wright, Ezekiel 
 
 Absent and not voting, 179. 
 
 So the Report was concurred in. 
 
 The next question being on ordering the amend 
 ment reported by the minority of the Committee, 
 on the subject of martial law, to a second reading. 
 
 Mr. DANA, for Manchester. The Convention 
 will perceive that only three members of the thir 
 teen who formed the Committee have signed this 
 Minority Report, and the conclusion of course will 
 be that the other ten had some reason for with 
 holding their names. If gentlemen will turn to 
 the twenty- eighth article of the Bill of Rights, 
 they will iiiid that it reads as follows : 
 
 " No person can in any case be subjected to 
 law martial, or to any penalties or pains, by virtue 
 of that la\v, except those employed in the army 
 or navy, and except the militia in actual service, 
 but by authority of the legislature." 
 
 It is proposed by the minority of this Committee 
 to strike out the words " but by authority of the 
 legislature." The question, of course, arises, 
 
 SO 3 
 
 what is the object of this amendment? The 
 Committee which had the matter under consider 
 ation, did not think this a proper amendment to 
 the Constitution, because we believed that it 
 ought to be in the power of the Commonwealth 
 to proclaim martial law whenever circumstances 
 should render it necessary. We all hope and 
 pray that it may never be needed, but the ques 
 tion is, whether there shall be vested in the legis 
 lature this power, to be used in case of any great 
 emergency ? For my own part, I can see no reason 
 why we should strike out this clause from the 
 Constitution. It has never been abused, and 
 there is no danger that it ever will be ; and I be 
 lieve that we should therefore allow it to remain. 
 The question is not whether martial law is 
 necessary or unnecessary, but whether the power 
 to proclaim, it shall exist as it has heretofore 
 existed in our Commonwealth. The fears of 
 gentlemen will be allayed, by considering the 
 process which must precede the declaration of 
 martial law. The bill must pass the House of 
 Representatives, then the Senate, and afterwards 
 go to the hands of the governor and be signed or 
 rejected by him. I cannot but think that if the 
 Convention consider this subject more maturely, 
 they will concur with the Committee. 
 
 Mr. HALLETT. The gentleman has not ex 
 plained to the Convention, if I understood him, 
 what martial law is ; but he asks, is it possible that 
 you will take from the legislature, who have so 
 long held it, the power of proclaiming martial law ? 
 Now the question which we should ask ourselves 
 is this : " Shall we, or shall we not, take from the 
 legislature the power of abrogating all law, and 
 proclaiming itself a dictator ? " for, as Blackstone 
 says, martial law is the abrogation of all law ; it 
 is putting territory under military authority. 
 
 The gentleman says there may be a necessity 
 for this. When it is so, it will be equally neces 
 sary for us to do as they did in the Roman Re 
 public proclaim a Dictator. 
 
 Mr. BUTLER, of Lowell. I am unwilling 
 that this question shall be taken, without the ful 
 lest understanding of the subject ; and in order 
 that I may at least, present .my views for the cor 
 rection of other gentlemen, I will state a few words 
 in regard to what I understand to be the princi 
 ples of the subject under discussion. The question 
 in dispute seems to be, whether or not the Con 
 vention are ready to say, that to the legislature 
 shall be given the power at any time when it 
 may best suit them, to take any citizen of this 
 Commonwealth, however peaceably disposed, and 
 without judge or jury, to try him, and hang him 
 on the first tree ! If you are ready for that, I am 
 willing to take my chance with the rest. [Laugh- 
 
434 
 
 BILL OF RIGHTS. 
 
 [67th day. 
 
 Tuesday,] 
 
 BUTLER BIIIOGS OLIVER. 
 
 [July 26th. 
 
 ter.] That is just the question which we are to 
 decide upon. Martial law, as I understand it, is 
 this : that whenever either the legislature, or in 
 some countries the general, chooses to proclaim 
 martial law, from that moment the military chief 
 is the only judge, the drum- head the only trial, 
 and the provost-martial the only executioner. 
 The gentleman for Manchester says, if a man is 
 going to be hung, he may as well be hung by 
 martial law, as by any other. 
 
 Mr. DANA. I beg pardon of the gentleman 
 for interrupting him, but what I said was, that 
 it was as well to be hung by martial law, as by 
 no law. 
 
 Mr. BUTLER. I accept the amendment of 
 the gentleman. Martial law then, is no law ; it 
 is the abrogation, as the gentleman for Wilbra- 
 ham has said, of all law. Now, the moment u 
 city gets to be a camp, we shall have martial law, 
 and not before ; and as such, the law martial may 
 be proclaimed by the declaration of the command 
 ing officer. But when so declared, it can only 
 apply to the officers and soldiers under his com 
 mand, and those who are in actual service and have 
 consented to be governed by such a law, in any 
 great emergency that may arise. Now, let me 
 ask, what shall be done with five thousand insur 
 rectionists, who may be disturbing the public 
 peace, and laying waste the public property? 
 Why, we will assail them, cut them off, destroy 
 them, get them hanged, take them prisoners, and 
 then, we will try them fairly and openly in our 
 courts in as independent a manner as the lot of 
 humanity will permit, before the judges whom 
 my friend wanted to be elected for life. 
 
 Sir, I trust there is no lawyer in this body who 
 is not sound in regard to the explanation of mar 
 tial law ; and as for myself, I am unwilling to have 
 the power of proclaiming such a law placed in 
 the hands of the legislature, except so far as 
 it may affect those persons in actual service. 
 Soldiers and sailors may be subject to martial law 
 if they please ; but I am unwilling that the little 
 child, the infant in the cradle, the wife and the 
 mother, shall come within its reach, to be hung 
 up and whipped, to suit the capricious and brutal 
 fancy of a second Haynau. 
 
 Mr. BRIGGS, of Pittsfield. I do not believe 
 that in these days of progress and civilization, we 
 stand in much danger of being hung up and 
 whipped under a martial law, by a second 
 Haynau, or anybody else. The experience of 
 the past has shown that this power has nev 
 er been brought into requisition, although at 
 one period of our history, at the time of Shay s 
 Rebellion, there was as much need for it perhaps, 
 as there has ever been since, not excepting a re 
 
 cent crisis which arose, when the army and navy 
 of the United States were directed to turn their 
 attention towards this rebellious city. It is not 
 impossible, however, that circumstances may arise 
 in future, which will require martial law to be 
 proclaimed in Massachusetts ; but does any one 
 doubt for a moment, that here, in this goodly 
 Commonwealth, a proclamation will be made that 
 all citizens from Boston Corner down to Hull shall 
 cease to be under the civil law, and that every 
 man, woman and child, shall be subject to a court 
 martial for any charge brought against them ? I 
 do not believe that there is the remotest proba 
 bility of such a state of things taking place ; and 
 therefore, I confess, though I have a great rever 
 ence for ancient things, I have no desire to see 
 the martial law among the people. The history 
 of our country presents but little encouragement 
 to the continuation of such a law in our Constitu 
 tion. It has seldom been proclaimed ; I remember 
 but a single instance, and that was in the city of 
 New Orleans in the war of 18 12 ; and I am sorry to 
 say that there were transactions during that period 
 which I wish, for the glory and renown of the 
 individual who proclaimed it, could be expunged 
 from the history of the country. That same in 
 dividual said, that if Massachusetts had been 
 within his military district, he would have hung 
 every delegate. That is martial law ; its pro 
 cess is summary ; the trial is before a court mar 
 tial, and not before a court of law ; there is no 
 great time spent in examining or cross-examining 
 the witnesses, but the case, however important 
 it may be, is brought to the most speedy termina 
 tion. For these reasons, I think it would be en 
 tirely safe for this clause to be stricken out of the 
 Constitution. As Burke once said, in speaking of 
 the veto power in England, its preservation and 
 repose may at some time result in great good. 
 He said that that power for more than one hun 
 dred and thirty years had been unused, and its 
 very repose had probably preserved the country. 
 And so would I say in regard to this martial law, 
 if there was the slightest probability that it w r ould 
 be the means of preserving the Constitution and 
 the Commonwealth ; but I do not believe there 
 will ever be a need for it within the boundaries of 
 our State ; and I am, therefore, inclined to vote 
 for the amendment of the Committee, and have 
 the clause which provides for the proclaiming of 
 the martial law by the legislature, stricken from 
 the Constitution. 
 
 Mr. OLIVER, of Lawrence. I do not propose 
 to occupy but a few moments in discussing this 
 subject. I merely desire to say that I shall vote 
 for the amendment which has been proposed by 
 my friend for Wilbraham, on the part of the 
 
67th day.] 
 
 BILL OF RIGHTS. 
 
 435 
 
 Tuesday,] 
 
 OLIVER SCHOULEB HALLETT GRAY. 
 
 [July 26th. 
 
 minority of the Committee, and I shall do so from 
 the principle which has ever guided me, of en 
 deavoring to keep everything of a military charac 
 ter distinctly subordinate to the civil power. As 
 it has already been observed, the law martial 
 travels with the military array, and wherever the 
 military are, there, too, is this law. But the 
 question is asked, if your law martial has refer 
 ence only to the military, what shall be done with 
 traitors who may be found inside the lines ? I 
 reply, they would be subject to arrest, but to ar 
 rest only ; for they would not be tried by the 
 law martial, but be turned over to the civil 
 authorities, to be dealt with by them. 
 
 Mr. SCHOULER. I would inquire, if the 
 civil authorities were on the side of the enemy, 
 what would you do then ; and who are to try 
 such cases then ? 
 
 Mr. OLIVER. I think that a case like the one 
 supposed by my friend, could never occur. I do 
 not believe that the circumstances could possibly 
 happen, when the whole community who do not 
 belong to the military organization, would be 
 found to be traitors. 
 
 Mr. SCHOULER. My question was, what 
 are you going to do in case the civil authorities 
 are traitors ? 
 
 Mr. OLIVER. I cannot inform the gentle 
 man, for such a state of things is entirely be 
 yond my comprehension. At any rate, I think 
 the community will be perfectly safe if we 
 omit this provision in the Constitution, as has 
 been proposed by the Committee. Although I 
 have been connected, for many years, with the 
 militia of our State, I have a disrelish for any 
 thing which tends to place it in a prominent posi 
 tion ; and, as I said before, I shall seek every 
 opportunity of keeping it strictly subordinate to 
 the civil law. For these reasons I shall vote for 
 the amendment which has been proposed by the 
 gentleman for Wilbraham. 
 
 Mr. SCHOULER. I do not suppose it is very 
 probable that the circumstances will ever arise 
 that will make it necessary for the martial law to 
 be proclaimed ; but still, I can conceive the pos 
 sibility of such an exigency, and so long as this 
 exigency exists, I am unwilling to have this 
 clause stricken out. I do not believe that the 
 legislature would ever exercise that power unless 
 there was an urgent necessity for it, and then it 
 would not by any means be so stringent in its 
 operation as some gentlemen would make us sup 
 pose. We do not know what may happen in time, 
 but at any rate, it is best we should be provided 
 for any emergency that could arise. So long as 
 there is no necessity for it, of course it will -be a 
 dead letter in the Constitution ; but if the neces 
 
 sity should arise, we shall be provided for it. 
 I am, therefore, opposed to the amendment 
 which has been submitted by the Committee, and 
 hope that it will not be adopted. 
 
 Mr. HALLETT, for Wilbraham. I do not 
 feel that I can sit still after the allusion which 
 has been made by the gentleman from Pittsfield, 
 to the memory of one of the greatest men and 
 patriots who ever lived in our country, without 
 making some reply. Sir, I believe that that gen 
 tleman entirely mistook the character and conduct 
 of General Andrew Jackson. That distinguished 
 man, in his proclamation of martial law in the 
 city of New Orleans, though he did it upon his 
 own responsibility, saved his country and his 
 country s honor at a moment when the legisla 
 ture of Louisiana, assembled in New Orleans, 
 were deliberating upon the propriety of surren 
 dering that city to the enemy without striking a 
 blow. He took this step, proclaimed martial law, 
 and arrested that inglorious act. Yet, the gentle 
 man says it was a stain upon his memory, and 
 upon the history of the country ! What, Sir, 
 would have been the stain, if instead of the 
 glorious victory which now graces our annals, 
 we should have had a disgraceful defeat, and a 
 surrender of our forces to Packenham ? He took 
 upon himself the responsibility, as a great man 
 will ever do on a great occasion, and defended 
 and saved his country s honor. And when that 
 was accomplished, what did he do ? He went 
 into court, threw down his sword, and was tried 
 for an infringement of the existing law. He paid 
 his fine and passed out of the court, suppressing 
 any attempts on the part of his friends who were 
 there assembled, to interfere with that decision ; be 
 cause he well knew that it was the principle of his 
 country to hold the military in subservience to 
 the civil power. Time went on ; party feeling 
 passed away, and there now stands upon the 
 records of the national legislature that act which 
 refunded the fine which Andrew Jackson paid. 
 That was the martial law then, and I ask, shall 
 we allow to remain in our Constitution a provis 
 ion which vests in the legislature alone the power 
 of proclaiming the martial law. If necessary at 
 all, give that power to the commanding officer ; for 
 as Livingston, one of the ablest of political 
 writers has said, whenever a General attempts to 
 declare martial law upon his own responsibility, 
 if he is successful, and protects his country, his 
 country will protect him ; and if he does violence 
 and wrong, the laws will punish him. That is the 
 only martial law I want to see in this free 
 country. 
 
 Mr. GRAY, of Boston. I do not feel qualified 
 to speak upon this question at length, because I 
 
436 
 
 DISTRIBUTION OF BOOKS, &c. 
 
 [68th day. 
 
 Wednesday,] 
 
 GRAY MIXTER EAKLE WALKER ALDRICH. 
 
 [July 27th. 
 
 do not know that I am aware of the precise dis 
 tinction between the law martial and the military 
 law ; but I desire to refer to another part of the 
 Constitution, which has not yet been adverted to. 
 I find in chapter 6, article 7, the following 
 clause : 
 
 " The privilege and benefit of the writ of habeas 
 corpus shall be enjoyed in this Commonwealth 
 in the most free, easy, cheap, expeditious, and 
 ample manner ; and shall not be suspended by 
 the legislature, except upon the most urgent and 
 pressing occasions, and for a limited time, not 
 exceeding twelve months." 
 
 Now, my question is this : If we say that the 
 law martial ought not to be permanently estab 
 lished, ought we not likewise to say that this 
 power of suspending the habeas corpus shall not 
 be given to the legislature ? If the legislature are 
 allowed the power to suspend one of the greatest 
 rights and priviliges of a citizen, ought not the 
 same reasons to operate for the retention of the 
 clause in question ? 
 
 These are my views in regard to the subject, 
 though I must confess my ignorance, as I said 
 before, in regard to the merits of the question. 
 
 Mr. BATES, of Plymouth, demanded the pre 
 vious question. 
 
 The demand for the previous question was 
 sustained, and the main question ordered to be 
 now put. 
 
 The question being on ordering the resolution 
 reported by the Committee to a second reading, 
 it was taken, and upon a division ayes, 73 ; 
 noes, 41 decided in the affirmative. 
 
 On motion by Mr. PLUNKETT, of Adams, 
 the Convention then, at twenty-five minutes to 
 seven o clock, adjourned. 
 
 WEDNESDAY, July 27, 1853. 
 
 The Convention assembled, pursuant to ad 
 journment, and was called to order by the Presi 
 dent at nine o clock. 
 
 Prayer by the Chaplain. 
 
 The journal of yesterday was read. 
 
 Distribution of Books. 
 
 The order introduced yesterday, by the gentle 
 man from New Braintree, (Mr. Mixter,) directing 
 the distribution to the towns not represented of a 
 copy to each of the new Constitution, and of the 
 Journal of the Convention, and of that of 1820, 
 was taken up for consideration. 
 
 Mr. MIXTER moved to modify the order by 
 substituting the following : 
 
 Ordered, That each of the towns in this Com 
 monwealth that have not sent a delegate to this 
 Convention shall be entitled to receive one copy 
 of Barnes s Constitutions of the United States, 
 one copy of the Journal of the Massachusetts 
 Convention of 1820, and one copy of the Journal 
 and Debates of this Convention. 
 
 Mr. MIXTER remarked that it had been sug 
 gested to him that the towns which are not repre 
 sented here would not be furnished with these 
 books, unless some special action were taken in 
 regard to it. The members of this Convention 
 would doubtless take care that their own towns 
 were supplied, but those unrepresented, although 
 equally entitled to receive them, inasmuch as 
 they would be called upon to pay their propor 
 tion of the expenses, woiild, without some such 
 order as this, be unsupplied. 
 
 Mr. EARLE, of Worcester. I have but one 
 objection to the adoption of the order that is pro 
 posed, and that objection is, that 1 believe we 
 have no power to do it. It appears to me we 
 have just as much right to make an appropriation 
 for any other object as we have for this ; as much 
 right to vote an appropriation for any purpose 
 under the sun, as to do what is proposed by this 
 order. 
 
 Mr. WALKER, of North Brookfield, remarked 
 that it certainly appeared to him that the towns 
 having no representatives here were as much en 
 titled to have these books for their information, as 
 those which are represented. 
 
 Mr. BUTLER, of Lowell, moved that the 
 order be laid upon the table. 
 
 He withdrew the motion, at the request of 
 
 Mr. BRIGGS, of Pittsfield, who moved to 
 amend the order, so that it would read, that 
 
 the Secretary of the Convention be directed to 
 send to each of the towns," &c. 
 
 Mr. ALDRICH, of Barre. I would inquire 
 whether it will be possible to execute this order ? 
 It proposes to supply these towns with a copy of 
 the Debates of this Convention. I ordered three 
 opies at the commencement, and this morning I 
 went to buy three more copies, and bought them 
 at a premium upon the ordinary cost. I under 
 stand that it will be difficult to procure them. 
 
 Mr. SARGENT, of Cambridge. I would ask 
 f the Convention did not order a sufficient num- 
 Der, so that they would have enough on hand to 
 enable the Secretary to comply with this order ? 
 
 The PRESIDENT. The Chair is informed 
 that there is another edition to be published, from 
 which this order could be filled, if the Convention 
 so determine. 
 
 The amendment of the gentleman from Pitts- 
 field was agreed to. 
 
68th day.] 
 
 BILL OF RIGHTS, &c. 
 
 437 
 
 Wednesday,] 
 
 BATES MIXTER SARGENT BRIGGS BURLINGAME. 
 
 [July 27th. 
 
 The question being on the adoption of the 
 order, as amended, 
 
 Mr. BATES, of Plymouth. I shouM like still 
 farther to amend this order. I suppose the Con 
 vention of 1820 voted to each town in the Com 
 monwealth a copy of its Debates, and that that 
 copy is in the hands of the clerk of such town. 
 This proposition is to supply those towns which 
 are not represented here. Now, I would propose 
 that, so far as relates to the Debates and Proceed 
 ings of this Convention, they be distributed to all 
 the towns, one copy to each. It may as well be 
 done under this order as at any other time. If 
 we so order now, it will prevent the necessity for 
 another order in reference to that matter. 
 
 Mr. MIXTER. I do not know but that the 
 Convention of 1820 did order the distribution of 
 their Proceedings to all the towns in the Common 
 wealth, but I do happen to know that there is no 
 copy of those Proceedings in the town in which I 
 live. I have had occasion to examine the books 
 belonging to that town, and I have never seen a 
 copy of those Proceedings. 
 
 Mr. SARGENT, of Cambridge. In reply to 
 the remarks of the gentleman from Plymouth, I 
 will say, that my impression is that we ordered a 
 certain number of copies, one portion thereof to 
 be distributed among the members, another por 
 tion to be placed in the hands of the Secretary of 
 State, to be distributed as the Convention may 
 direct. 
 
 Mr. BRIGGS. I hope the gentleman will 
 allow this order to pass, so as to provide for the 
 towns that are not represented ; and in reference 
 to those that are, their representatives will un 
 doubtedly take care of them. 
 
 The amendment was agreed to, and the order, 
 as amended, was adopted. 
 
 Rights of the Jury. 
 
 On motion of Mr. WILSON, of Natick, the 
 Convention proceeded to consider the unfinish 
 ed business on the Orders of the Day, being 
 the resolve on the subject of the rights of the 
 jury. 
 
 The pending question being on the final pas 
 sage of the resolve. 
 
 Mr. BURLINGAME, for Xorthborough. Mr. 
 President : There is so little time to discuss this 
 question, that I scarcely know where to com 
 mence. I do not complain, however, for I am 
 most anxious to bring the labors of the Conven 
 tion to a close. But inasmuch as the time for 
 discussion is so limited, I ask the ear of the Con 
 vention while I shall occupy its attention not 
 for my sake, but for my cause s sake in behalf 
 of a most important right. I shall speak as rap 
 
 idly as I can, so that I may crowd as much as 
 possible into the brief space allowed me. 
 
 The minority of the Committee, in asking you 
 to adopt their Report, do not urge you to declare 
 any new doctrine, but to recognize the old com 
 mon law rights of juries. We do not wish to 
 assail judges, nor to reflect upon them, but rather 
 to relieve them from the imputations to which 
 they might otherwise be subjected. Inasmuch 
 as they do not now agree among themselves, as 
 to the extent of their powers, it is our duty, as it 
 is our right for their good, and for the general 
 safety to define them, to bound their sphere 
 of action, to state the law which is to guide them 
 so clearly that they can never misunderstand it ; 
 so that juries will know their duty, and counsel 
 how far to go, and the whole people their rights. 
 Because in civil cases the judges give the law 
 to juries, and because in criminal cases they in 
 struct them in the law which duty we do not 
 desire to relieve them from juries have become 
 to believe, and the whole community along with 
 them, that they can do no otherwise than follow 
 the instructions of the court, whether those in 
 structions be right or wrong. It is because this 
 is so, because judges have, in some instances, in 
 these latter days, usurped the rights of juries, 
 denying to them, in the pride of position and the 
 pride of learning, the right, in criminal cases, to 
 pass upon the law and the fact, it becomes neces 
 sary, if we would save the great right of trial by 
 jury in its integrity, either by legislative enact 
 ment or by more solemn expression in the funda 
 mental law, to declare the right of juries, espe 
 cially in criminal cases. This has been found 
 necessary many times heretofore. Burke states 
 that, up to his time, in England, over forty acts 
 had been passed guarding the rights of juries ; 
 and in our own country, our State and National 
 statutes are full of provisions tending to the same 
 end. 
 
 I did intend, and it would have been my pleas 
 ure, had this subject arisen earlier, to trace rap 
 idly the most interesting history of trial by jury, 
 from the first glimmer of anything like it in the 
 classic land, and in the warrior land, to its greater 
 development among the blue- eyed sons of the 
 north, along the Baltic, and at last to its practical 
 and complete realization by the mingled and 
 mingling races of the British Isles and this con 
 tinent. In this history its great value would be 
 revealed to us, and we should see why we ought 
 to resist, with all our strength, the first attempt 
 to impair its vigor. As it is, I must content my 
 self with a few statements and views, which I 
 hope will be found sustained by precedents, and 
 vindicated by reason and common sense. 
 
438 
 
 BILL OF RIGHTS. 
 
 [68th day. 
 
 Wednesday,] 
 
 BtJRLINGAME. 
 
 [July 27th. 
 
 In the first place, then, I contend that the doc 
 trine of the Report is sound law ; that it has 
 stood against all assaults, for hundreds of years. 
 Judges have so decided, commentators have so 
 expounded, historians have so recorded, and 
 statesmen have vindicated and eulogized this doc 
 trine. There are ten precedents in its favor where 
 there is one against it. Nearly all of the great 
 lights of the English and American law shine out 
 in its favor. The great writers, from Bracton. to 
 Blackstone, Littleton to Coke, and later, and the 
 brilliant advocates and the great judges are for it 
 Holt, and Hale, and Vaughn, and a host of 
 others. We have in this country nearly all of 
 the judges, from the beginning to the present 
 time, in its favor Marshall, Jay, and Kent ; and 
 in this State, until recently, the unstained ermine, 
 the united voice of the court Parsons, Putnam, 
 and Morton, and the present chief justice him 
 self, until the extraordinary reasoning, not de 
 cision, in Commonwealth vs. Porter, a case where 
 the authorities on this subject, pro and con., may 
 be found. In short, there is one great stream of 
 authorities in its favor, flowing down through 
 centuries. Indeed, it was never denied, except 
 in libel cases, and in these not long. It was un 
 doubted at the Revolution, and in colonial times, 
 juries frequently called upon by-standers to tes 
 tify as to the law. 
 
 There are but two great authorities on the other 
 gide Mansfield, in England, and Story, in this 
 country. Mansfield, as an authority, was killed, 
 by act of parliament, by Fox s bill ; Story s de 
 cision, in this country, still stands, but like a 
 leaning tower, toppling to its fall. I say there are 
 but these two of commanding importance. There 
 are a few others in England and tliis country, 
 but they are lost in the shadow of these. I ought 
 to say there is a respectable authority against this 
 doctrine, in New Hampshire, which I should not 
 forget to mention, inasmuch as the judge who 
 delivered it is an honored member of this Conven 
 tion, (Mr. Parker, of Cambridge). There is Dur- 
 fee, in Rhode Island, and a few inferior judges in 
 other States have decided, sometimes one way, and 
 sometimes another ; and a judge of the supreme 
 court of the United States, has decided both 
 ways ; but the authorities largely preponderate in 
 favor of the doctrine we maintain. 
 
 I said Mansfield s authority was destroyed by 
 Fox s bill. In this country we have followed the 
 doctrines of that act ; and if you will look over 
 the Constitutions, and through the statutes of the 
 several States, you will find that in nearly all it 
 is declared that in cases of libel the juries shall 
 have this right "the same as in other cases"; 
 these words " the same as in other cases," clearly 
 
 recognizing the right to pass upon the law and the 
 fact in all other criminal cases. I will not insult 
 you by citing, as an authority for the opposite 
 doctrine, my Lord Jeffreys, that bloody villain, 
 who, in the trial of Algernon Sydney, told the 
 jury they must take the law from him, and, 
 forcing them by threats to do so, judicially mur 
 dered that noble man. There have been ship- 
 money judges and dispensing judges, and such 
 scoundrels as Scroggs ; but I need not wound 
 those who may oppose us here, by stating on 
 which side of this question they were found. 
 Again, I say, the Report we have made is sustained 
 by the precedents ; and that you may not rely 
 upon my declarations alone, I beg to refer to 
 Mittermaier, professor at Heidelberg, the greatest 
 living jurist, who has just published a book, not 
 yet translated into English, upon the English, 
 Scotch, and American criminal law. He, after a 
 searching examination of all the authorities, states 
 and I have the extracts here, translated for me 
 by a German friend of mine interested in this 
 subject (B. Roelker) Mittermaier states, I say, 
 that in the United States, England, and Scotland, 
 juries have the right to pass upon the law as well 
 as the facts, in criminal cases. He goes into a 
 history of the law in relation to this subject, and 
 cites hundreds of authorities to maintain this 
 proposition. Even those judges who deny to 
 juries this right, admit their power to exercise it. 
 Mansfield first, and Story following him, and 
 taking his very language, adopting his dead de 
 cision to bind it upon the living back of America ; 
 and Shaw, arguing in favor of the same doctrine, 
 all admit the 2>ower of juries to pass upon the law 
 and the facts, but intimate that they have 110 
 right to exercise it. 
 
 Now, with all due deference to these learned 
 judges, I submit that it borders on the absurd to 
 say juries have the power but not the right. 
 Does the law stultify itself by conferring a power 
 without a right to use it ? If they have the power 
 it is a legal power, aud the legal presumption is 
 that it is a rightful power. If it is wrong for 
 them to exercise it, then where is your remedy ? 
 It is said there is no wrong without a remedy. 
 Where is it in this case ? Suppose the jury does 
 not choose to follow the court ; what can the 
 judge do can he punish ? No ; he cannot touch 
 a single juryman ; the verdict of not guilty con 
 cludes the whole matter ; the prisoner goes free 
 and forever. If juries have not the right we 
 claim for them, then why are counsel allowed to 
 address them upon questions of law a right 
 never but in two or three cases (since overruled) 
 denied them why should they be permitted to 
 persuade the jury to do wrong ? A man cannot 
 
68th day.] 
 
 BILL OF RIGHTS. 
 
 439 
 
 Wednesday,] 
 
 BlTRLIXGAME. 
 
 [July 27th. 
 
 plead ignorance of the law as an excuse for its 
 violation ; he is presumed to know the law ; and 
 yet the jury which is to try him which is to de 
 termine his guilt or innocence is to be presumed 
 ignorant of the law he is to be punished for 
 violating ignorant, after hearing the counsel and 
 the judge. Surely this position against us cannot 
 be maintained. Then it may be said indeed, it 
 has been said that because judges are clothed 
 with power to pass upon questions of law, pre 
 liminary and subsequent to the trial, that there 
 fore they have exclusive power. Now, I main 
 tain that they have scarcely any power which 
 they can exercise against the prisoner. All the 
 powers lodged with them are for his benefit, in 
 favorem vitos. Is it not for his benefit that the 
 judge shall determine what evidence shall go to 
 the jury ? This is a power not likely to be 
 abused. Is it not for his benefit that the indict 
 ment be quashed that a demurrer be argued 
 that exceptions be taken that a new trial, in case 
 of conviction, be granted r What one of these 
 humane powers, which can be only exercised in 
 favor of life and liberty, does our proposition take 
 away ? It leaves the judge all power for good, 
 but none for evil, none for caprice, none for op 
 pression. We wish to throw around the citizen 
 every guard. The judge shall be his friend, and 
 the grand jury and the traverse jury ; and a new 
 trial shall be granted if the verdict is against evi 
 dence. But be it ever remembered that this can 
 only be granted in criminal cases, where the ver 
 dict is against the prisoner. Such is the humanity 
 of the law, and who would have it otherwise ? 
 Thus our doctrine is sustained by precedent, 
 sanctioned by reason, and commended by hu 
 manity. If it had no higher claim for our sup 
 port than its age, nothing but precedent to recom 
 mend it, I would not advocate it here. 
 
 The opposite doctrine, in the first place, assumes 
 that all judges are pure, that all juries are corrupt 
 that judges are always wise, and that juries are 
 always ignorant. Now, I assume that both 
 are honest, and I say one honest judge is as 
 likely to be corrupted as twelve honest jurymen. 
 Let history decide the question. Let us admit 
 that the judge and the jury are equally able to 
 meet the requirements made of them, and equally 
 desirous of performing their duty according to 
 law ; which, in the long run, taking human na 
 ture as we find it, ought we to trust with the 
 great interests of humanity ? Let history answer. 
 I appeal to it confidently ; does it not show, that 
 whenever there has been a conflict between judges 
 and juries, the juries have always been right and 
 the judges always wrong ? When kings were 
 cruel and courts were corrupt, the jury remained 
 
 kind and pure ; in its generous bosom the victim 
 of oppression found safety and protection. Again 
 and again it has stood like a rock against tyranny. 
 The things of which we most boast were saved by 
 it. Freedom of speech and freedom of the press, 
 and the long list of our rights and privileges. So 
 it was and so it is now. Recently, in England, 
 when the Earl of Derby, then Prime Minister, 
 menaced the refugees from continental oppression, 
 the press of England, with the Times, its great 
 thunderer, at its head, informed the haughty 
 earl that it was not for him to admonish and 
 threaten it was not for him to say who should 
 visit England, or how long he shouM remain, or 
 when he should take his departure. These were 
 questions to be determined by a jury, and the 
 declaration rang from side to side that no man, 
 no matter what his clime or what his color, could 
 be touched in his property or in his liberty, save 
 through the warm heart of an English jury. 
 
 I need not remind you how many times, even 
 in our free land, the fierceness and fanaticism, the 
 madness of party, and the tyranny of wealth , have 
 lost their victim in the jury-box. How often un 
 just laws have been stayed from cruel execution, or 
 been made to sleep by juries until they were swept 
 from the statute book by the roused spirit of the 
 people. Let no man think that I would ask a 
 jury to shield the citizen from a just law. You 
 say who is to determine its justice ? I reply, an 
 honest jury, instructed by an honest judge. If a 
 law, or what is called law, outrages all rights and 
 the public conscience, clergymen may preach, and 
 judges may instruct until they are hoarse, juries 
 will never convict under it. This is a fact, and he 
 is unwise who fails to recognize it. But let this 
 be said of juries, and to their honor, when judges 
 have many times struggled with great zeal to 
 convict under cruel laws, if juries have failed in 
 these cases to respond with their verdict, it has 
 never been wanting against the violator of a just 
 and wholesome enactment. 
 
 It may be said, if in civil cases the jury take 
 the law from the court, why not in criminal cases ? 
 Because the rules that govern them are not the 
 same. The law relating to property is artificial 
 and technical, and there is little motive for tyran 
 ny. The criminal law, on the other hand, is 
 easily understood. The indictment must set out 
 the charge clearly and singly, and then, after the 
 counsel have addressed the jury, and the court 
 instructed them on one single question, if they 
 cannot understand the law they must be ignorant 
 indeed. After this is done, it is their right and 
 duty to complicate law and fact, and to bring in a 
 general verdict of guilty or not guilty. They may, 
 if they choose, return a special verdict ; but this 
 
440 
 
 BILL OF RIGHTS. 
 
 [68th day. 
 
 Wednesday,] 
 
 BUKLINGAME RANTOUL. 
 
 [July 27th. 
 
 the court cannot require, and this is still another 
 proof that they have a right to pass upon the law 
 as well as the fact. If the court is to determine 
 the law, then I submit that the trial by jury is 
 little better than a farce ; then a man is no longer 
 tried by his peers, as is his right, but by the judge, 
 who may give the law the hue of his own mind. 
 The judge may be his bitter enemy, but still he 
 must take his chance ; he cannot challenge him, 
 as he can a juryman, and exclude him. 
 
 Some men seem to think that the moment a 
 man is placed upon the bench, all human passions 
 depart from him, and all wisdom rushes in to 
 take their place. Now I have considerable rev 
 erence, but I never could understand this blind 
 adoration of those who chance for the time being 
 to be judges. I never supposed, nor do I now 
 suppose, all wisdom will die with them, that their 
 removal would suspend the laws of nature, and 
 cause the moon to fall, or the stars to rain down 
 from heaven. I take it judges sometimes get dis 
 turbedthat they have their likes and their dis 
 likes ; and it is said, some of them frequently get 
 angry ; and that they hate reformers so much that it 
 would, at times, be difficult for them to detect 
 enough of the gentle quality "mercy" in any 
 law they could apply, to save one from prison 
 or the gallows. 
 
 Of this I feel quite sure I should prefer to take 
 my chance for life or liberty, with twelve of my 
 friends and neighbors to let them determine the 
 fact and the law, the violation and the intent 
 rather than to be in the power of any one man, 
 no matter how kind his heart. 
 
 If any man in this Convention should say the 
 people are not competent to make the laws by 
 which they are to be governed, we should all de 
 nounce the imputation ; and yet, there are many 
 here who seem to doubt their capacity to inter 
 pret the laws made by themselves when transfer 
 red from this or any other place to the jury-box. 
 We do not trust the making of our fundamental 
 laws to judges. Why not, if they alone can un 
 derstand them ? Here we rely somewhat upon 
 the wisdom of those who are or who have been 
 judges, but we do not follow them blindly. So 
 jurymen, when judges state the law correctly, 
 will be happy to be guided by them ; but when 
 from ignorance, or bigotry, or dishonesty, they 
 misdirect and falsely state the law, then the jury 
 must be its defence, as well as the shield of the 
 citizen. 
 
 It may be said juries differ in their verdicts. 
 Do judges always agree? Let the volumes of 
 overruled cases answer. The doctrine for which 
 we contend is not in quiet times appreciated. 
 When human affairs are unsettled, when party 
 
 rages, when majorities rule at the centre, and 
 madness takes possession of accidental presidents, 
 and governors, and judges, then it is the jury 
 shines out as a beacon of safety. The friends and 
 neighbors of a man, made up of every party, form 
 a wall of hearts about him, through which no 
 tyranny can reach him. 
 
 In closing, let me pray you not to decide against 
 us hastily ; and I appeal for a hearing and for 
 support, to my own party friends. I claim them 
 for this great right, because of their devotion to 
 that liberty it is intended to guard. I claim the 
 reformers of every party. I hold them to their 
 professions. I claim the conservatives, because they 
 would cling to the ancient ways. Here is the 
 pure gold. Here is a doctrine that has stood the 
 blasts of centuries. I call upon my professional 
 brethren to stand by it. They know it is the law. 
 Let them no longer, in this Convention, subject 
 themselves to the charge of opposing everything 
 the people desire. I know our profession has al 
 ways been sensitive to anything touching the laws 
 and their administration. 
 
 I believe it was Chatham who, because of this 
 sensitiveness of lawyers, launched at them, in 
 substance, this sarcasm. I do not remember the 
 precise words, but it was something like this, he 
 said : " The whole empire might shake from its 
 centre to its circumference, and every lawyer 
 would remain quiet in his cell ; but touch one 
 thread of the law, and every spider in Westmin 
 ster Hall would crawl forth in its defence." I 
 think the sarcasm is unjust, for wherever liberty 
 and humanity have needed defenders they have 
 found them in our ranks. "We may point with 
 pride to Tronchet, Deseze, and Malesherbes, de 
 fending an old king deserted by all the world, at 
 the risk of their lives ; to Erskine, standing up 
 bravely for the doctrine we advocate, between an 
 angry judge and a quailing jury ; to Curran, in 
 the midst of arms, breathing forth those last words 
 of defiance ever heard in his native land ; to Otis 
 and Adams, arguing writs of assistance one day 
 for the people, and then stemming their wrath by 
 defending the soldiers who caused their blood to 
 flow in King Street. I say the sarcasm is unjust. 
 But I see my time is about up. Again I urge 
 the Convention to adopt the Report of the Com 
 mittee ; it will then have done something to guard 
 the rights of the people. 
 
 [Here the President s hammer fell, the time to 
 which the speaker was entitled, under the order 
 of the Convention, having expired.] 
 
 Mr. IIANTOUL, of Beverly. There is one 
 case to which the gentleman for Northborough, 
 (Mr. Burlingame,) did not refer, in which the 
 court instructed the jury that if they had doubts 
 
68th day.] 
 
 BILL OF RIGHTS. 
 
 441 
 
 Wednesday,: 
 
 RANTOUL HILLARD. 
 
 [July 27th. 
 
 of the law, they were bound to receive the law 
 from the court ; that they had the power , but not 
 the right to do otherwise. This was in the case 
 of an indictment against Abner Kneeland, in 
 Suffolk County, about twenty years ago, at which 
 trial Judge Wilde presided. It may be that I 
 have not seen a correct version of the facts ; but 
 as I have seen the case reported, the judge so in 
 structed the jury. This case occurred to my 
 mind, while the gentleman last up was speaking, 
 and I thought I would suggest it to the Conven 
 tion. 
 
 As long ago as 1771, President John Adams 
 discussed this subject, and decided that the jury 
 had the right to determine the law, as well as the 
 facts. 
 
 In 1802, when Judge Chase, of the Supreme 
 Court of the United States, was impeached, one 
 of the charges against him was, that he denied to 
 the jury the right to determine the law, as well 
 as the fact. Upon this charge, however, he was 
 acquitted. He proved, by evidence, that he had 
 never interfered with the jury in that respect ; 
 but that on the contrary, he had argued that the 
 jury had that right ; that it was an ancient and a 
 sacred right, and one which should not be inter 
 fered with. 
 
 I believe there is another case which occurred 
 in Boston, within two years, which might be re 
 ferred to, in which a United States judge required, 
 in impanelling a jury, that they should declare 
 that they would take the law from the court. But 
 it appears to me, that this is a very great encroach 
 ment upon the rights of jurors. It is a matter of 
 the highest importance, that their rights should 
 be well guarded, and, I think it would be very 
 proper at this time to interpose some obstacle 
 against the encroachment of the courts upon their 
 rights. 
 
 Mr. HILLARD. Mr. President : This is an 
 important question, as has been said by my friend 
 for Northborough, (Mr. Burlingame,) and I have 
 only fifteen minutes to discuss it in. I wish our 
 friends, the reporters, would invent a system of 
 short-hand talking as well as short-hand writing. 
 I wish we could apply to our debates some con 
 densing process like that by which chemistry 
 presents an acre of poppies in the shape of an 
 ounce or two of opium. It is hardly possible to 
 do more than cross the threshold of this subject 
 in the limited time we have. 
 
 The question under discussion assumes two 
 aspects. In the first place, what is the law, in 
 the second place, what ought it to be ? As to the 
 first point, every lawyer in the Convention will 
 tell you that in criminal issues juries are judges 
 of the law as well as of the facts. This is one of 
 
 the common-places of our science. But what do 
 these words mean ? Here is the rub. One- half 
 of the questions which have convulsed the world 
 have been questions of definition. I am reminded, 
 in this connection, of a well-known Jacobite epi 
 gram : 
 
 " God bless the King ! God bless the faith s defender ! 
 God bless, no harm in blessing, the Pretender! 
 Who that Pretender is, and who that King, 
 God bless us all ! is quite another thing." 
 
 In the interpretation of these words, two views 
 or theories will be found to be sanctioned by the 
 opinions of courts and judicial dicta. One is, 
 that the jury has and ought to have the right to 
 determine or settle the law, and in doing so to 
 disregard the instructions of the court if they see 
 fit ; in other words, to assume what are strictly 
 judicial functions. The other is, that while the 
 jury, inasmuch as they give a general verdict of 
 guilty or not guilty, have the power, or rather 
 (to use a pedantic word) the potentiality for 
 power has a double meaning to disregard the 
 instructions of the court, and settle the law for 
 themselves, they have no moral right to do so ; 
 that such a course is a departure from their proper 
 line of duty, and that they are bound to receive 
 the expositions of law laid down by the court, as 
 authoritative and binding, and apply them to the 
 facts as proA ed. This latter doctrine I take to be 
 the received law in this Commonwealth, as laid 
 down by the supreme court of Massachusetts in 
 Commonwealth vs. Porter, (10 Metcalf, 263) and 
 also in the circuit court of the United States by 
 Mr. Justice Story and Mr. Justice Curtis. 
 
 In every criminal trial, the issue of guilty or 
 not guilty, involves matter of law as well as ques 
 tions of fact. In the first place, were certain acts 
 committed ; in the next place, do those acts come 
 within the legal definition of the crime alleged in 
 the indictment. This is true in all criminal 
 issues ; but there are also many civil issues which 
 involve matter of law and matter of fact also. 
 Two men, for instance, quarrel in the street. 
 One gives the other the lie ; and he is knocked 
 down for it. He brings a civil suit for damages ; 
 the issue is not guilty ; and the only defence is a 
 legal defence founded on the provoking language. 
 The judge charges the jury that words of provo 
 cation are no justification of an assault, but may 
 go in mitigation of damages. If the jury disre 
 gard these directions and bring in a verdict of not 
 guilty, the verdict may be set aside and a new 
 trial granted. On the other hand, if the party 
 assaulted goes before the grand jury, and they 
 find a bill, his opponent is indicted for the same 
 offence, the issue is the same, the defence is the 
 same, the charge of the judge is the same, and yet 
 
442 
 
 BILL OF RIGHTS. 
 
 [68th. day. 
 
 Wednesday,] 
 
 HlLLABD. 
 
 [July 27th. 
 
 it is contended that the jury have the right to 
 disregard the instructions of the court, and acquit 
 the defendant, as fully as they have the actual 
 physical power, and there is no remedy any where. 
 I put it to any lawyer, to any man of candid, 
 common sense, if between these two cases there 
 is any distinction in law, reason, or natural jus 
 tice. Can any man tell me why the jury, in the 
 one case, should have a power which they ought 
 not to have in the other ? 
 
 The sensitiveness felt by many politicians, upon 
 what are called the rights of juries in criminal 
 trials, is, I think, the result of a false analogy 
 always a fruitful source of error. The doctrines 
 on this subject, grew up in England, in times of 
 tyranny, when the government was an oppressor ; 
 when men were hunted to death under the forms 
 of law, by venal advocates and unprincipled 
 judges. They grew up, also, not in ordinary 
 trials, but in state prosecutions. The jury-box 
 was then the Thermopylae of liberty ; and I honor, 
 in the core of my heart, that noble army of mar 
 tyrs and partriots, who, in that narrow strait, 
 fought the good fight of constitutional freedom. 
 But, applied to us, the analogy fails. In a crim 
 inal trial here, it is not an arbitrary government 
 crushing one of its subjects, but it is organized 
 society protecting itself against crime ; it is the 
 majority enforcing legally its legal will. And 
 yet we claim for the felon, who makes war upon 
 society, some portion of that sympathy which 
 belongs to the patriot who resists tyranny. 
 
 Out of a multitude of considerations which 
 crowd into the mind, I can only present one or 
 two. Under all popular governments like ours, 
 a written Constitution is a matter of necessity. 
 The object of a Constitution is to protect the mi 
 nority against the majority, as it is the object of 
 a court of justice in criminal matters to pro 
 tect the individual against the majority. This 
 gives rise to an important branch of law called 
 constitutional law. In England, they know noth 
 ing of this. Parliament is supreme, and when a 
 statute is passed, there is an end of the matter. 
 But here there are many enactments which come 
 under the head of constitutional or not constitu 
 tional. In regard to these, as a man thinks, so 
 is it. So close and subtle is the connection be 
 tween the will and the mind, that where there is 
 any room for question, every man conscientiously 
 believes a law to be unconstitutional which he 
 dislikes. I presume there is no man in this Con 
 vention, opposed to the fugitive slave law, who 
 does not believe it to be unconstitutional. I 
 presume there is no man opposed to the Maine 
 liquor law, so called, who does not believe it to 
 be unconstitutional. What will be the practical 
 
 effect of giving the jury the right of acquitting 
 every person tried under a law which they may 
 deem unconstitutional ? A law is passed by a 
 large majority ; it is sustained by public senti 
 ment ; the court charges that it is constitutional, 
 and yet, if one juryman thinks otherwise, no 
 conviction can ever be had under it. I ask the 
 democratic gentlemen in this Convention, if this 
 be not an an ti- democratic principle r if it does not 
 give, to one man in twelve, that is, to one-twelfth 
 of the community, the power of nullifying the 
 decision of the majority lawfully expressed. And, 
 by the proposition before us, we invest an unlaw 
 ful, unwarrantable usurpation of power with the 
 character and privileges of a lawful right. And, 
 especially, do I put it to the friends of temperance 
 on this floor, that if they give their hands to this 
 measure, they must, forever, forever, resign all 
 thoughts of combatting this mountainous mis 
 chief of intemperance by legislative weapons. 
 They may rear law upon law, they may cover 
 the statute book with their enactments, but it 
 will all be in vain. They will all be but waste 
 paper. Their penalties and sanctions will be but 
 wooden guns that will not go off, and painted 
 dragons that will terrify none but babes. 
 
 I am farther opposed to this resolution, because 
 its tendency is to strengthen what does not need 
 to be strengthened, and to weaken what ought 
 to be confirmed. It elevates the jury and de 
 presses the court. My friend for Northborough, 
 (Mr. Burlingame,) says, that in England the 
 judges have been encroaching upon the province 
 of the juries. Is that true of this country ? Are 
 we likely to suffer from the encroaching and ag- 
 gre*sive spirit of the bench ? I submit that the 
 danger with us is rather the other way. The 
 danger rather, is, that the currents of popular 
 feeling, when strongly moved, will sweep away 
 the bench, like bubbles on a swollen flood. In 
 medical books, we read of cases of hypochondria. 
 I have read of a man who thought his legs were 
 made of butter, and would not come near the 
 fire lest they should melt. There is also such a 
 disease as political hypochondria. The minds of 
 politicians are often haunted with unreal and 
 fantastic fears. And I know of no more marked 
 case of this disease than an apprehension of the 
 usurpations and encroachments of the judiciary 
 that the rights of the people are likely to be 
 immolated upon that altar. What has been, what 
 is the course of public sentiment on this point ? 
 Are not judges less respected than they once were ? 
 Are not magistrates less honored ? Is not the spirit 
 of reverence growing more and more faint in the 
 general heart ? All the old men in the Conven 
 tion will confirm these statements. It is the 
 
68th day.] 
 
 BILL OF RIGHTS. 
 
 443 
 
 Wednesday," 
 
 HILLABD KEYES. 
 
 [July 27th. 
 
 power of popular sentiment, manifesting itself 
 through juries and legislatures, which is gathering 
 everything into its irresistible current. The very 
 debates of this Convention show the weakness of 
 the judiciary. Let me here state a political 
 truism. The very fact that so many of our vigi 
 lant patriots are so sensitive as to the encroach 
 ments of the judiciary, is a security against those 
 encroachments. Dangers that are foreseen are 
 not dangers. Forewarned is forearmed. The 
 real perils in States are those which are not appre 
 hended. Should anything like a conflict ever 
 occur between the judiciary and the legislature, 
 or between the court and the jury, we should learn 
 where was the strength and where was the weak 
 ness. The active sympathies, the fervid passions, 
 the strong instincts, would rally round the popu 
 lar institutions, while the bench would have the 
 languid support of reason and judgment. The 
 old, the timid, the conservative, the fossil remains 
 of an antediluvian age of politics, would gather 
 round the judiciary, while on the other side 
 would be found the young, the ardent, the ambi 
 tious, and the aspiring ; and in the shock of con 
 flict the judiciary and its friends would not stand 
 a moment. And I object to this proposition, 
 because it is travelling farther in a direction in 
 which we have already moved quite far enough. 
 So far as it has any practical effect, it will be to 
 lower the judiciary. It will make the presiding 
 judge in a criminal trial, little more than a 
 respectable ceremony. We require him to in 
 struct the jury, and yet we authorize the jury to 
 disregard those instructions. We permit them to 
 receive the directions of the court simply as a 
 piece of testimony on the law, which they may 
 believe or not, as they please. You will thus 
 lessen the desirableness of a seat on the bench, 
 in the eyes of all high-minded men, and that is a 
 result which the community must deprecate. 
 
 Lastly I object to the proposition because of 
 the cruel and mischievous uncertainty it will in 
 troduce into the administration of criminal law. 
 If juries may determine the law as well as the 
 facts, there will be as many courts of final juris 
 diction, as there are juries. There will be one 
 law to-day, and another to-morrow ; one law in 
 Boston, another in Worcester, and another in 
 Springfield. A man maybe acquitted in Suffolk, 
 and another convicted in Middlesex, on precisely 
 the same facts. Where the law is thus uncer 
 tain and inconsistent, there can be no true liberty. 
 The government becomes, what our Bill of Rights 
 says it should not be a government of men and 
 not of laws. 
 
 Mr. President : The views I have advanced are 
 not popular. They are not entertained by the 
 
 majority of the whole country, and I do not sup 
 pose that they will commend themselves to the 
 favor of the majority in this Convention. I 
 expect to be voted down. But I have learned to 
 submit to the will of the majority when lawfully 
 and constitutionally expressed. I shall waste no 
 time in repining or croaking, but make the best 
 of what is left. Inasmuch as the jury may 
 always return a general verdict, and as they can 
 not be interrogated upon the grounds on which 
 they made up their verdict, the proposed measure 
 will have very little practical effect. I oppose it 
 on principle. It is going farther where we have 
 gone far enough ; it is throwing additional 
 weight into a scale already too heavy. In all 
 things, my trust is the moral sense, the enlightened 
 public sentiment of the community. Where 
 that is sound, it corrects defective institutions ; 
 where that is corrupt, good laws are of little 
 value. 
 
 Mr. KEYES, for Abington. I have waited 
 for others who are more competent than I am, 
 to discuss this question. I do not propose to say 
 anything as a lawyer, or as a judge, upon it ; but 
 I look at it as an individual sitting upon a 
 jury, might look upon a question of law. I 
 recollect what Judge Wilde once told me when I 
 w r as sitting upon a jury. Speaking of common 
 law, he said that a man of good common sense 
 could tell what the common law was upon almost, 
 if not quite, every subject ; and I inferred from 
 that that the only advantage which a judge had 
 over a juror, if he was a man of ordinary capacity, 
 was that the judge had more experience, and his 
 information was more comprehensive, and included 
 a greater number of facts and cases. That is all 
 the difference ; so that a man who is not educated 
 in the law can tell very well what the law is, be 
 cause he can tell what it ought to be. The com 
 mon law is the science of reason and justice ; 
 and a man who can tell what justice is can tell 
 what the common law is, in almost all cases, and 
 therefore he is just as competent to decide the case 
 as the judge. I was glad to hear the gentleman 
 from Boston say that the probable state of things 
 would be very much as it is now, even if this 
 resolution should pass. I believe so too. It 
 seems to me, treating this as we do other subjects, 
 that there is reason enough for the adoption of 
 this proposition, growing out of the present state 
 of uncertainty which exists in regard to it. 
 Every-body knows that juries do judge of the 
 law as well as of the facts. They cannot help it ; 
 they will do it. In the city of Boston, I was 
 going to say that you could carry the fugitive 
 slave law into execution, but I doubt it ; I will 
 not accuse the city of Boston of that ; I believe 
 
444 
 
 BILL OF RIGHTS. 
 
 [68th day. 
 
 Wednesday,] 
 
 KEYES HILLARD. 
 
 [July 27th, 
 
 that, bad as they may be in some respects, they 
 are not bad enough for that. But, Sir, I will say 
 this, that in the city of Boston you can hardly 
 carry the Maine law into execution. There are 
 reasons for both of these facts. I should like to see 
 the Maine law executed ; but no man refuses to 
 carry that law into execution who does not have 
 some very plausible reasons for it. There are 
 provisions in that act which we would not submit 
 to in other cases ; and the only justification of it 
 is, that as liquor-selling is an extraordinary evil, 
 it requires an unusual and extraordinary remedy. 
 But when you find one juryman out of twelve, 
 as the case has been within two or three days in 
 Boston, standing out against it, it is not entirely 
 without reason that he does so. A few years ago 
 there was a gentleman who was editor of a paper 
 in Boston, and it happened that he was on a jury, 
 and it happened, also, that he was found in a mi 
 nority of one, and he thought the other eleven 
 were extremely unreasonable because they did 
 not agree with him. Sir, according to the judg 
 ment of the public at the present day he was right, 
 and the eleven opposed to him were wrong. The 
 laugh and joke has passed around about the one 
 who thought all the rest on the jury were unrea 
 sonable ; but it is now generally believed they 
 were unreasonable ; there is no doubt about it ; 
 the minority was right. Now, Sir, the difficulty 
 is not that the jury are liable to be influenced by 
 the judges. They will take the judge s testimony 
 just the same as they take the witness s testimony. 
 They are to receive it as testimony, and they do 
 receive it as testimony. Do men suppose they 
 will not place any reliance upon it ? Let Judge 
 Shaw give instructions to the worst set of men in 
 the Commonwealth who ever constituted a jury, 
 and we know they would regard his testimony. 
 If a law should happen to be passed which insults 
 the common sense and the humanity of the people, 
 they may so construe it that the people will not 
 suffer. Now, Sir, the testimony has been well 
 stated here. This subject was once before the 
 Senate, and I took occasion to look at some books 
 to find out the opinions of the bench upon it, and 
 I found them to be, in a majority of cases, in ac 
 cordance with the doctrines of the resolution 
 before the Convention, viz. : that the jury had a 
 right to decide the question of law, as well as the 
 question of fact. 
 
 Now, Sir, there need be no apprehension one 
 way or the other, unless great political questions 
 are to be decided. When such questions are to 
 be decided, then, of all times, it is the business 
 for the jury to be felt. Take the great case in 
 Pennsylvania, the Prigg case, for example ; that 
 was an agitated political question, but the judges 
 
 did not decide it according to law ; they did not 
 pretend to decide it according to law. Then was 
 a proper time for the jury to give their opinion of 
 the law, as well as the judges. There is no dan 
 ger from these political questions, because they do 
 not often come in contact with the judiciary, and 
 neither the judges nor the jury are often affected 
 by political agitation. Therefore we find no dif 
 ficulty. But the very existence of a doubt on 
 this question is, in my opinion, enough to make 
 it necessary that it should be settled one way or 
 the other ; because, if the judge in one place is to 
 tell a jury they are bound to decide according to 
 the law which the court lays down, and a judge 
 in another place allows the jury free power to 
 judge both of the law and the fact, there arises 
 the difficulty to which the gentleman from Bos 
 ton (Mr. Hillard) so justly deprecates. The only 
 way to avoid that difficulty, is to have the matter 
 decided here, one way or the other. 
 
 Now, the judges in Massachusetts have, for a 
 few years past, taken the law into their own 
 hands in a totally unjustifiable manner. They 
 have questioned jurors before they took their 
 seats. But jurors, when drawn, should be 
 allowed to take their seats, unless they are chal 
 lenged by the accused. If a judge is to tell a 
 man who is drawn, that he is unfit to sit because 
 he entertains certain opinions ; or if a judge shall 
 ask a juror who is drawn, if he believes in the 
 constitutionality of this or that law, the juror 
 ought to tell him it is none of his business. The 
 moment you permit the -judge to put this ques 
 tion and that question, and compel the juror to 
 answer, the power and independence of the jury 
 are destroyed. Why, Sir, under such arbitrary 
 ruling, if the juror says he does believe the law 
 to be constitutional, then he can sit ; but if he 
 says he does not believe it to be constitutional, 
 then he is rejected. 
 
 Mr. IIILLAIID, of Boston. I wish to correct 
 a statement of the gentleman for Abington ; for I 
 am sure he would not wish to leave a wrong 
 impression. The question put in the case to 
 which he alludes, was just this : Are your opin 
 ions upon the constitutionality of the fugitive 
 slave law, such as to present your finding a ver 
 dict of guilty in any possible state of facts ? 
 
 Mr. KEYES. No matter; it comes to the 
 same thing. It is this. The facts in the case, 
 most of them, may be perfectly notorious ; 
 the question is to be decided upon the juror s 
 ideas of the law itself. If, therefore, his mind is 
 made up against the accused, then he is allowed 
 to sit ; if it is made up the other way, then he is 
 not allowed to sit. But, I say the judges have 
 no business to know anything about it. The law 
 
68th day.] 
 
 BILL OF RIGHTS. 
 
 445 
 
 Wednesday,] 
 
 SUMNER. 
 
 [July 27th. 
 
 provides a way in which jurors are to be drawn, 
 and they are to sit, unless they are challenged 
 by the person accused, or have expressed such 
 opinions as would show that they were unable to 
 decide impartially, after all the forms of trial had 
 been gone through with. 
 
 Mr. SUMNER, for Otis. I cannot subscribe, 
 Mr. President, to the principle involved in the 
 proposition under consideration, notwithstanding 
 the very respectable authority which has brought 
 it forward. Jurors are now unquestionably, 
 judges of the law as well as of the fact. But it 
 is a well settled principle, and I apprehend, one 
 which is regarded throughout this Commonwealth, 
 that they should be governed by the advice of the 
 court, or the instructions of the court, in relation 
 to the law, unless they know that those instruc 
 tions are wrong. And in assuming to act contrary 
 to the instructions of the court, they assume a 
 very high responsibility. 
 
 This proposition before us seems to be founded 
 for it is not a novel one upon a feeling of 
 philanthropy toward the accused ; and the ques 
 tion is, whether, after all, it is not a mistaken and 
 a misdirected philanthropy, and whether the pro 
 posed rule may not be prejudicial rather than 
 otherwise to him. Let us illustrate it. Suppose 
 a person is put upon trial who is accused of crime. 
 His reputation is perfectly well known in the 
 vicinage, and is known to the jurors as being bad. 
 Now the facts which happen to be adduced against 
 him are weak ; and the law, rightly applied to his 
 case, would exonerate him from the charge against 
 him. The law is correctly given to the jury by 
 the court ; but the jury, by reason of prejudices, 
 of which, perhaps, they are not conscious, but 
 growing out of the fact of their acquaintance with 
 the reputation of the accused, make the law, in 
 their hands to become elastic. They venture, 
 notwithstanding the plain instructions of the court, 
 to go contrary thereto, and the consequence is, 
 that the accused is condemned, and condemned 
 wrongfully. All this may be the effect which 
 this supposed philanthropic rule which you are 
 attempting to fix in the Constitution will produce. 
 Other illustrative cases might easily be adduced, 
 but they will so readily occur to the minds of 
 gentlemen present, that I need not take time to 
 state them. And what is the remedy against the 
 verdict thus found by the jury ? If the jury de 
 cide wrongfully, who can interpose to restore to 
 the injured party his rights ? 
 
 No, Sir ; I think that upon principles of philan 
 thropy in relation to the accused, as well as in 
 regard to every other principle that can be brought 
 into view, the rule stands better as it now exists, 
 than it will by the incorporation into the Consti 
 
 tution of any such principle as the one proposed. 
 As the law and the practice now is, if the court 
 err in relation to the law which is given to the 
 jury, then there is a complete remedy. Then an 
 exception may be taken to the ruling of the court, 
 and a farther hearing may be had upon the sub 
 ject, and if an error has been committed, it can 
 be corrected. 
 
 Again, Sir, what is the duty of the court in 
 conducting criminal trials ? The theory of the 
 common law, in relation to the duty of the judge 
 is not an unmeaning theory ; namely, that he is to 
 be of counsel for the accused. It is incumbent upon 
 a judge to see to it, that a proper watchfulness is 
 exercised in the conduct of every criminal case, 
 that no improper evidence be introduced ; that no 
 erroneous rule is laid down for the government of 
 the jury ; in a word, he is, I repeat it, to be of coun 
 sel for the accused. 
 
 If the principle is to be adopted, that jurors are 
 to be judges of the law, irrespective of instructions 
 from the court, the same principle will, of course, 
 find its way into the grand jury room. The regu 
 lation now is, that before every grand jury, they 
 are to have the aid of a prosecuting officer, con 
 versant with the law, who is to inform them of 
 the rules of the law as applicable to the cases 
 before them. But if jurors are to rule over the 
 court, in the trial of causes, then why not suffer 
 the same authority to be adopted in the grand jury 
 room ; why not specially authorize grand jurors 
 to take upon themselves the responsibility of 
 indicting persons according to their own notions 
 of law, crude and imperfect as they may be r 
 The result might easily be seen. Indictments 
 without law, and against law, would be found. 
 
 Sir, in looking at the probable working of the 
 change proposed, who cannot readily perceive the 
 confusion and difficulties that will be apt to fol 
 low ? May not, and will not, occurrences and ex 
 amples like the following often be witnessed ? For 
 instance, here are two cases precisely alike, de 
 pending, it may be, upon the same facts and the 
 same principles ; you bring one before the jury 
 upon the right of the judge ; they hear the case, 
 they hear the evidence, and they render a verdict 
 of acquittal, upon their law. Another case comes 
 before a jury on the left of the judge ; the same 
 evidence is given, and the same law is applicable, 
 and that jury, with the same power to judge of 
 the law, find a verdict precisely contrary to that 
 which was rendered in the other case. What a 
 system of things for the administration of justice 
 that would be ! 
 
 No, Sir, I think we had better let the princi 
 ples which now obtain in Massachusetts, remain 
 as they are, without seeking such an improve- 
 
446 
 
 BILL OF RIGHTS. 
 
 [68th day. 
 
 Wednesday,] 
 
 LADD. 
 
 [July 27th. 
 
 ment if so it may be called as is here pro 
 posed. 
 
 Mr. LADD, of Cambridge. I desire to say a 
 few words upon this question, before it shall be 
 finally passed upon by the Convention. Although 
 I find upon the Committee who reported the re 
 solution, the names of gentlemen of such charac 
 ter and judicial reputation, as will almost induce 
 us to adopt, upon their authority, and without 
 careful investigation, a proposition of this kind, 
 emanating from such a source, yet I do protest 
 against the enunciation, in our organic law, of 
 such a principle as is contained in this resolution. 
 There are considerations, entirely conclusive to 
 my own mind, and which, it seems to me, should 
 control the action of the Convention in this matter. 
 
 The great principle of the American system of 
 government consists in the division and distribu 
 tion of power among several coordinate depart 
 ments the legislative, executive, and judicial 
 not as government existed with our ancestors in a 
 former age, and another country, when the 
 people were not governed by written laws and 
 constitutions, and the powers of the legislature 
 were defined and limited by no constitutional 
 provisions. Now, by the Constitution, the power 
 and duty of administering, interpreting, and judg 
 ing of the law, devolved upon the judiciary. 
 That is the department of your government which 
 should decide upon law. Now, the resolution 
 proposes that in all criminal trials, the jury shall 
 have the right to decide, not only the fact, but 
 the law. 
 
 We have in the Bill of Eights, art. 10, the fol 
 io wing provision : " Each individual of the so 
 ciety has a right to be protected by it, in the 
 enjoyment of his life, liberty, and property, ac 
 cording to standing laws." And by the 29th 
 article of the Bill of Rights, it is provided as fol 
 lows : " It is essential to the preservation of the 
 rights of every individual, his life, liberty, prop 
 erty, and character, that there be an impartial in 
 terpretation of the laws, and administration of 
 justice." 
 
 Now, I think it very important, either as a 
 practical or a theoretical question, whether you 
 shall put this amendment into the Constitution. 
 As the law now exists, as I understand from the 
 decisions of our supreme court, the jury in 
 criminal cases may, if they think it expedient, re 
 turn a special verdict ; that is, the jury may judge 
 and determine as to the fact, and submit the 
 same to the court to apply the law. And that is 
 a special verdict. The jury have also the right of 
 applying the law as propounded by the court, 
 and of returning a general verdict ; and thus they 
 have the power if they choose to assume a power 
 
 which they cannot rightfully exercise they have 
 the power to revise and control the decision of the 
 court. But the supreme court has held that 
 jurors are bound by their duties to society, by 
 their social and moral obligations, and the sanc 
 tion of their oaths, to receive the law from the 
 court, and to adopt its interpretation and con 
 struction for their guidance. 
 
 Now, I would inquire, whether in our Ameri 
 can system, or in our own Constitution, there is 
 any meaning or intention that any such condition 
 of things should exist, as that, in the ultimate 
 decision of questions of law the highest exer 
 cise of the judicial authority the jury should have 
 the right to judge, in order that, in the words of 
 the Bill of Rights, " each individual may be pro 
 tected in the enjoyment of his life, liberty, and 
 property, according to standing laws," and "that 
 there be an impartial interpretation of the laws, 
 and administration of justice" ? 
 
 I inquire, then, what will be the result, if you 
 introduce this principle into the Constitution, 
 and if juries should exercise, as they then right 
 fully may, the power thus conferred ? You would 
 have juries who would not hesitate to carry out 
 the principle, and to claim the right to decide upon 
 the law. With a rightful authority to construe, 
 interpret, and judge of the law, by how short a 
 step may juries advance to the inquiry, whether 
 the law, which they are called upon to decide, is 
 a proper law, or not ? If they are made the 
 judges of the law, how great a stretch of authority 
 would it be for them to assume to decide upon the 
 constitutionality of the law ? Now, Mr. President, 
 it seems to me that it is one of the great duties of 
 the government, to protect persons who may be 
 accused of crime, as well as to protect the com 
 munity against crime. It is the right of every 
 citizen to be governed by " standing laws," the 
 interpretation of which shall be uniform, and not 
 subject to change. Ingraft this principle upon 
 the fundamental law ; give to juries this right of 
 ultimate judgment in criminal causes ; and you 
 establish in every county of the Commonwealth a 
 distinct tribunal, which is to pass upon the most 
 sacred rights of the citizen, but whose decisions 
 are governed by no uniform rule by no standing 
 law -and from which there can be no exception 
 or appeal. 
 
 What security for a fair and impartial trial, ac 
 cording to standing laws, would remain to the 
 accused, in some circumstances in which he might 
 be placed in relation to society, or in periods of 
 public excitement ? Establish this principle, and 
 if juries act upon it, the great safeguards of the 
 accused are removed. He is no longer protected 
 by standing laws. 
 
68th day.] 
 
 BILL OF RIGHTS. 
 
 447 
 
 Wednesday,] 
 
 HALLETT. 
 
 [July 27th. 
 
 It seems to me, therefore, that in every point of 
 view in which I can survey the question, the 
 proposed innovation involves a dangerous princi 
 ple ; that it is contrary to the general spirit of our 
 institutions ; that it contravenes the provisions of 
 our Bill of Rights, and will practically introduce 
 uncertainty and confusion into the administration 
 of the law. 
 
 Mr. HALLETT, for Wilbraham. This ques 
 tion, involving the great right of juries in criminal 
 trials, was much considered and discussed in the 
 Committee on the Bill of Rights, and the propo 
 sition now under debate, was reported to the 
 Convention, not by a majority, but by an equal 
 division of the Committee. 
 
 It is a very vital question, as I regard it, and 
 one in which I have, professionally and personally, 
 taken a deep interest for a great many years. I 
 trust, therefore, that having been instructed by one 
 half of the Committee to submit this proposition, 
 I shall not be considered as intruding upon the 
 Convention, in offering some reasons for its adop 
 tion, as a necessary reaffirmation of a lost right in 
 the Constitution. It is obvious, that under the 
 rule limiting a speaker, I have no time to argue ; 
 I can but make suggestions, though I may enlarge 
 in revising these remarks, by adding what I am 
 now obliged to pass over. 
 
 Sir, I claim no new right for juries, but the 
 restoration of a very ancient right, which the 
 courts recently, and against common law, have 
 denied to them. A new sophistry has sprung up 
 by which acute lawyers and judges, while admit 
 ting the poicer of the jury to pass upon the law 
 and the fact, proceed to argue away the right, and 
 by thus alarming or confounding jurors, take 
 from them the power as well as the right to do 
 otherwise than to find a verdict as the judge may 
 direct ; so that in all criminal trials, where the 
 law is in doubt, it is the verdict of the judge and 
 not the verdict of the jury alone, which convicts. 
 
 Now I hold that this is not the ancient " trial 
 by jury " ; the "judgment of his peers," which 
 is secured to every subject by the Bill of Rights ; 
 and therefore if we would not yield up this old 
 common law right to a new judicial construction 
 by which the courts evade it, it must now or 
 never be reaffirmed by the people, as a part of 
 their organic law. 
 
 Hence the proposition I have had the honor to 
 submit, is simply the reaffirmation of a denied 
 right ; the enunciation of a great principle, en 
 dangered by judicial construction the reorgani 
 zation, in fact, of the ancient charter of jury 
 rights. That is what it is ; and with it is involved 
 the right of every person when charged with 
 crime, to have the whole verdict of a jury, guilty 
 
 or not guilty, law and fact all included. And 
 therefore in considering a proposition, which lies 
 at the foundation of all personal rights in govern 
 ment, I look at it only as a broad fundamental 
 principle. I can see no personal or particular 
 application, that I desire to make of it ; no law 
 that is to be enforced by the judges, depriving 
 juries of their rights, or to be abrogated by the 
 juries exercising that right. Give me the princi 
 ple, and sure I am that it will secure the rightful 
 administration of justice, by a rule of trial as old 
 as the common law, and under which all criminal 
 causes have been conducted, consistent with good 
 government, for two hundred years in this Com 
 monwealth. 
 
 It was necessary in the olden time, repeatedly 
 to reaffirm Magna Charta, which was first forced 
 from King John, was subsequently violated by 
 his successors, and again reenacted by the people, 
 until it was made treason in the king to attempt 
 its infringement. So in modern times, the ju 
 dicial power, under the irresponsible life tenure 
 of office, has gradually usurped the ancient right 
 of juries in criminal trials, by construing it to 
 mean a naked and lawless power, without any 
 right to exercise it. And now the time has come 
 when the people of Massachusetts will have the 
 opportunity to demand, in the reenactment of 
 their Constitution, that this power and this right, 
 which always meant one and the same thing in 
 the organization and practice of trial by jury, 
 shall be restored with its original interpretation 
 and intent. 
 
 That is the question here to-day. It is no in 
 novation, but it is a restoration. We ask for no 
 new law, for no new principle. We ask only, 
 that this judge- made law, which is no part of the 
 Constitution, no part of the old common law, no 
 part of statute law, and no part of the precedents 
 or practice of our courts until very recently, shall 
 be set aside in Massachusetts, and the original 
 construction and practice in trials by jury, be 
 proclaimed anew as the supreme law of the land. 
 
 I have said that the recent denial of this right 
 by the courts, was an usurpation. I use that 
 term in no offensive sense, but as indicating the 
 gradual encroachments of the bench, which is 
 always inclined to amplify its jurisdiction. It 
 has gone on here precisely as it has gone on in 
 England, whenever it became the wish or the 
 policy of the courts to treat the jury as an obsta 
 cle in the way of enforcing convictions. 
 
 The denial of the jury right began in England 
 with the usurpations of the judges over the lib 
 erty of the press in trials for libel. It was never 
 applied to other criminal trials as a rule of law. 
 With a thorough examination of English prece- 
 
448 
 
 BILL OF RIGHTS. 
 
 [68th day. 
 
 Wednesday,] 
 
 HALLETT. 
 
 [July 27th. 
 
 dents, I undertake to affirm, that until after 
 American Independence, which freed us from all 
 British criminal practice, unless previously adopt 
 ed by our courts, no authority of any court of 
 common law in England can be found, against 
 the right of the jury to find the law and the fact 
 of the case by a general verdict in all criminal 
 trials, except in the judicial murder of Algernon 
 Sydney in 1683, by Chief Justice Jeffreys, who 
 said to the jury "the point in law, you are to 
 take from the court, gentlemen." (3d State 
 Trials, 805.) And this never was law, even in 
 England, for Parliament set aside the verdict and 
 attainder against Sydney, solely on the ground of 
 the misdirection of the court to the jury. 
 
 The denial of this right, in fact, had its origin 
 in the infamous Star Chamber, and a modern 
 English law writer of high authority, Mr. Starkie, 
 says : " After the abolition of the Star Chamber, 
 which in cases of libel exercised an unbounded 
 control over both law and fact, the cognizance of 
 such offences reverted to the court of King s Bench, 
 to be exercised in the constitutional mode by the 
 intervention of a jury ; and till sometime after 
 this period, no doubt seems to have been enter 
 tained of the right of a jury, (he uses the term 
 right and not power,) to give a general verdict in 
 the case of libel, as well as in any other criminal 
 proceeding: And he then proceeds to give a 
 history of Lord Mansfield s usurpation, over juries 
 in denying to them the right to determine the law 
 and the fact in trials for libels. (Starkie on 
 Slander, 617.) 
 
 The whole course of the common law was thus 
 perverted by this comparatively modern devise, of 
 power without right, which was invented in order 
 to destroy the free press of England, by that 
 learned, but most arbitrary of all the judges who 
 ever sat on the king s bench. 
 
 I am surprised that American lawyers or judges 
 should ever cite that authority against juries, 
 because the first formal decision by Lord Mans 
 field that the jury were bound to take the law 
 from the court (in the Dean of St. Asaph, dis 
 claimed too, at the time, by his associate on the 
 bench, Mr. Justice Willis, who said that " the 
 jury had the right as well as the power to judge 
 of the question whether libel or no libel") was 
 given in 1784, long after our independence, and 
 therefore never was common law or any other 
 law in this country. And in England that judge- 
 law was repudiated by an act of Parliament in 
 1792, as a judicial usurpation over the rights of 
 juries to determine the law and the fact by a 
 general verdict in indictments for libel as in all 
 other criminal causes. 
 
 Recently, some British judges have attempted 
 
 to revive this exploded doctrine of Lord Mans 
 field, and the ancient right of juries is now in 
 danger in England, as it is in this country, by the 
 mere force of judicial construction. (Baron 
 Parke in 6 M. and W., and Best, chief justice, in 
 4 Bing., 195.) 
 
 The progress of judicial usurpation over juries 
 has been similar in this country, first in the cir 
 cuit court of the United States for Massachusetts, 
 and very recently in two or three State courts. 
 The lawyers and judges of the old school of 
 common law always affirmed, and never questioned 
 the right. In 1804, the supreme court of the 
 United States, through Chief Justice Jay, declared 
 the opinion that " the jury have the right to take 
 upon themselves to judge of both law and fact, 
 and to determine the law as well as the fact in con 
 troversy." (3 Dallas, 4.) And yet a very learned 
 judge of the circuit court Mr. Justice Story 
 assumed to set aside that law and all American 
 common law on that point, by resorting to this 
 subtle definition of power without right, which 
 has since been adopted by other judges in 
 that court, and by judges of our State courts 
 in Massachusetts, until the power and the right 
 will both be taken from the people by judicial 
 construction, unless they now affirm it emphati 
 cally, as a part of their fundamental law. 
 
 In Massachusetts, the very recent change in 
 judicial construction against jury rights, is re 
 markable. From the earliest period of the judicial 
 history of this Commonwealth, down to the recent 
 decision in the tenth of Metcalf s Reports, (Com 
 monwealth vs. Porter,) no question was ever 
 made by the supreme court, cr any of its judges, 
 of the right of the jury to determine the whole 
 law and the whole fact involved in their verdict 
 of guilty or not guilty. Chief Justices Parsons, 
 Parker, and Shaw, and Justices Putnam, Wilde 
 and Morton, and others, have announced this as 
 a settled principle of common law, over and over 
 again. I have at hand references to numerous 
 cases in our reports directly to this point. It was 
 the common judicial acceptation in charges and 
 in arguments to juries in all criminal trials, and 
 if there be any common law settled by precedents, 
 that was settled, until it was disturbed, though 
 not even then expressly denied, by the decision in 
 the case in Metcalf. I will cite two authorities 
 that cover the whole ground. In the tenth vol 
 ume of Pickering, 496, Commonwealth vs. Knapp, 
 the supreme court deliberately say : " As the jury 
 have the right, and if required by the prisoner, 
 are bound to return a general verdict of guilty or 
 not guilty, they must necessarily decide such ques 
 tions of law as icell as of fact, as are involved in 
 this general question, and there is no mode in 
 
68th day.] 
 
 BILL OF RIGHTS. 
 
 449 
 
 Wednesday,] 
 
 HALLETT. 
 
 [July 27th. 
 
 which their opinions upon questions of law can 
 be revised by this court or by any other tribunal." 
 
 That was the solemn decision of the whole 
 court in 1830. And again in 1838, in the 20th 
 of Pickering, 222, the case of Commonwealth vs. 
 Kneeland, the learned Chief Justice Shaw, in 
 giving the opinion of the court, said : "In all 
 criminal cases the jury are to pass upon the whole 
 matter of law and fact, and to render a verdict of 
 guilty or not guilty upon the ^chole matter) in 
 cluding all questions of law and of fact," 
 
 And that is just what the proposition now 
 under consideration is intended to affirm as the 
 meaning of " trial by jury " in Massachusetts. 
 It says, in very plain terms, that the jury, having 
 the power, as is admitted on all hands, " shall 
 have the right, in their verdict of guilty or not 
 guilty, in all trials for criminal offences, to deter 
 mine the law and the facts of the case." Not to 
 violate law, not to make law or to establish pre 
 cedents of law for other cases, but to say guilty 
 or not guilty upon the law of the case which makes 
 the act a crime, as well as upon the act itself, 
 which is alleged to be a crime. So that there is 
 no pretence for the objection raised by those who 
 disparage juries, that this makes the jury judges 
 to decide points of law or settle the law in one 
 case for other cases, or that they will make the 
 law uncertain by different verdicts because each 
 case stands by itself, and the jury decide nothing 
 but the particular case committed to them, in 
 cluding therein the whole issue of law and fact. 
 
 Hence, this proposition, if put into the Consti 
 tution, will only restore the right which the 
 courts of Massachusetts always admitted to its 
 full extent, until the case in the tenth of Metcalf, 
 which has left the power and taken away the 
 right. And how did that happen ? In 1845 a 
 case was tried before the court of common pleas, 
 in which the judge denied to the counsel the 
 right to argue the law of the case to the jury 
 at all. It was the first time, in the exist 
 ence of common law courts, that such a right 
 had been denied to counsel, and yet it was but 
 the final step in this judicial assumption of taking 
 the law of the case out of the hands of the jury. 
 It in effect, set aside the trial by jury, and when 
 that judge required of me, as counsel in that 
 case, to argue the points of law to him, that he 
 might order the jury how to find on the law, and 
 then to argue the facts only, to the jury, I said : 
 " I will not argue the law to the court, and the 
 facts to the jury separately; I will argue the 
 whole defence of mixed law and fact to the jury, 
 or not at all. The Constitution secures to every 
 subject, when held to answer for any offence, 
 the right to be fully heard in his defence, by his 
 
 31 3 
 
 counsel. If the court sees fit to stop the defend 
 ant in his fiill defence, I will sit down, but I will 
 not yield the right to argue the full defence of law 
 and fact to the jury." The judge persisted. Ex 
 ceptions were taken to his ruling, and when the 
 question was argued before the supreme court, the 
 learned judges, after holding the case over for more 
 than a year, turned their backs upon themselves, 
 and, in effect, set aside all the precedents and prac 
 tice of the Commonwealth. I must be excused for 
 saying that it was the worst reasoned judicial 
 opinion that can be found in the Massachusetts 
 Reports. It did not take the only consistent 
 ground against law which the common pleas judge 
 took ; viz. : that the counsel should not argue 
 the law to the jury, because they had nothing to 
 do with it. They overruled that as utterly 
 against all law and all practice ; but after affirm 
 ing that the counsel had a right to argue the law 
 to the jury, they then went on to say that the 
 jury had no right to listen to, or be convinced by 
 the argument, but must implicitly take the opin 
 ion of the judge. And this was the first time 
 that the doctrine was ever broached by the supreme 
 court of Massachusetts, that the jury had the 
 power but had no right to determine the law and 
 the fact of a criminal case. 
 
 Now, where could there be a more extreme 
 judicial paradox than this, no matter from what 
 quarter it should come ? Admitting that the 
 counsel had a right to argue the law to the jury, 
 and then denying that the jury had any right to 
 say whether the argument was true or false ! 
 Why then argue it at all ? The right of counsel to 
 argue, but upon the express condition that you 
 are not allowed to convince ! A great right, truly ! 
 That, Sir, is conclusive that the decision of the 
 judges in the case in the tenth of Metcalf, was 
 wrong, wholly wrong upon that point ; and no 
 learning or logic can sustain its consistency. 
 True, the supreme court overruled the case as it 
 came up to them, and sent it back for a new trial, 
 so that the defendant prevailed. But, it was de 
 cided upon a new arid self- contradictory princi 
 ple, that juries have the power to embrace in their 
 verdict, and determine the whole issue of law and 
 fact, but that they have no right to use that 
 power, and they would be guilty of presump 
 tuous wickedness if they dared to exercise it ! 
 Just as if you cannot trust juries as well as judges, 
 with the exercise of every power which the Con 
 stitution and the law gives them ; for neither 
 judge nor jury can have a lawful power to do 
 anything which they would not have a lawful 
 right to do. 
 
 On the contrary, instead of the judge being 
 the safest depository of criminal law, all judicial 
 
450 
 
 BILL OF RIGHTS. 
 
 [68 tli day. 
 
 Wednesday,] 
 
 HALLETT. 
 
 [July 27th. 
 
 history shows that, whenever the life or liberty 
 of the people is concerned, it is the judges, and 
 not the juries, that are most to be feared in disre 
 garding law, and enforcing injustice. The books 
 are full of cases involving great questions of lib 
 erty and law, in which the judges have been 
 wrong, and the juries right; and there is not a 
 case on record, where a jury has convicted the 
 innocent by disregarding the law laid down by 
 the court, and never will be. I have no time to 
 cite cases, but just go back to the trials for witch 
 craft, in Massachusetts, in 1696. Hutchinson 
 tells us that the juries changed long before the 
 judges did. And so it was ; by disregarding the 
 directions of the judges as to the law, and taking 
 the law as well as the fact into their own "judg 
 ment," they averted that terrible judge -law per 
 secution. And where did that monstrous judicial 
 error spring from ? Why, Sir, aside from all the 
 province laws, it came from the English common 
 law of crime, made by the otherwise learned 
 and upright judge, Sir Matthew Hale, who caused 
 the hanging of poor Rose Cullender, by inducing 
 a jury to take his law which he laid down to 
 them, that witchcraft was a crime punishable 
 with death. That same judge-law was intro 
 duced into the then supreme court of Massachu 
 setts, as the common law of England, and Chief 
 Justice Stoughton, and his associates on the 
 bench, undertook to enforce it, until they hung 
 nineteen women, and had some seventy accused 
 arraigned for trial, when a jury of Middlesex re 
 solved to give a whole verdict upon the law as 
 well as the fact, and acquitted the victims, against 
 the instructions of the court, and determined to 
 convict no more. And thereupon old Judge 
 Stoughton rose on the bench, and exclaimed : 
 " We were in a fair way to have rid the land of 
 these emissaries of the devil, but now, the Lord 
 have mercy upon us ! " And he left the bench, 
 and would sit no more in that court. 
 
 Now, Sir, I defy any lawyer to cite a case in 
 which the jury, where the judges sought a con 
 viction, have undertaken to determine the law 
 and the fact of the case, and have not decided 
 rightly, in favor of life and liberty. 
 
 A word, only, touching some technical objec 
 tions raised here. One gentleman says, there can 
 be no exceptions taken as to the law, if the jury 
 are to determine the law as well as the facts. 
 Cannot except ? What do you except to ? To 
 the verdict of the jury, when they acquit ? Never. 
 That is final, and no judge or court can call it in 
 question. And how do you know, or what right 
 has the court to know, whether the jury render 
 their verdict on law or fact, or both ? That be 
 longs to them, and never to the court. If the 
 
 ury convict, the law, in that case, has always 
 allowed the prisoner to except either to the in 
 struction of the court, or to the verdict of guilty, 
 f against law or against evidence. That is the 
 security given to the subject in favor of life and 
 liberty, and who will dare to take it away ? And 
 that is left by this proposition as it now stands. 
 It declares that "the jury, after having received 
 the instruction of the court, shall have the right, 
 in their verdict of guilty or not guilty, to deter 
 mine the law and the facts of the case." That is, 
 they are to take the whole matter in issue, law 
 and fact together, and have the right to determine 
 the criminal guilt, which is the law, and the actual 
 guilt, which is the fact. But the supreme court 
 now undertake to say, as Judge Jeffreys said, 
 in the trial of Sydney, " The point in law you are 
 to take from us. We will find a verdict upon 
 the law, and you may find a verdict upon the 
 facts." And thus the judge makes himself the 
 jury, and finds one-half of the verdict, and the 
 jury the other half, and so between them they 
 convict ; and that, I maintain, is against common, 
 law, because it is not the "trial by jury," "the 
 judgment of his peers," to which every man 
 charged with crime is entitled of right. 
 
 It is the province of the judge to instruct the 
 jury, not to control them, against their "judg 
 ment" which means their honest opinion, under 
 their oaths, and not the opinion of the judge 
 forced upon them. It will happen, only in ex 
 treme cases, where a jury will not be able, con 
 scientiously, to conform their "judgment" to the 
 instructions of the court, and therefore it may 
 be safely left to their discretion. In fact, it is 
 the only safeguard against arbitrary and unjust 
 judges. If the instructions of the judge are 
 wrong, or if the verdict of guilty is wrong, you 
 go to the court for a new trial, and therefore this 
 proposition affirming the jury right in nowise 
 can be construed to interfere with the right of 
 exception, or of a new trial. If professional gen 
 tlemen have any belief which I have not that 
 the court would evasively deny exceptions, let 
 it be made their duty to allow exceptions, and 
 grant new trials, as heretofore. 
 
 Especially is it unfair for professional gentle 
 men to confound the broad distinction that exists 
 between civil and criminal trials, in this respect. 
 In civil causes, either party, at the discretion of 
 the court, may have a new trial, for law or fact ; 
 but in criminal trials, this right appertains to the 
 defendant only when convicted. Why is this ? 
 The reason covers the whole ground of the argu 
 ment. It is because the trial by jury, in criminal 
 charges, has always been regarded as the palla 
 dium of liberty, and there is no safety in trusting 
 
68th day.] 
 
 BILL OF RIGHTS. 
 
 451 
 
 Wednesday,] 
 
 HALLETT DANA. 
 
 [July 27th. 
 
 the life and liberties of the people in the hands 
 of judges ; and therefore, neither parliament in 
 England, nor any legislature in America, ever 
 enacted a law to allow a judge to grant a new 
 trial against a party who has been acquitted of 
 crime, by a verdict of jury. 
 
 On the other hand, in civil causes between par 
 ties, there has always been, by common law, and 
 with us by express statute, a discretion given to the 
 court to set aside a verdict and grant a new trial to 
 either party, either for law or for fact. And this 
 makes a manifest distinction. It takes from the 
 jury both the power and the right to determine 
 the law in civil causes, and gives it to the court, 
 who may control the jury by setting aside their 
 verdict, whenever the judge does not agree to it, 
 and granting a new trial. Consequently, by re 
 fusing to give any such power to the court, in all 
 cases of a verdict of not guilty, in criminal trials, 
 the law decides and declares that it is the jury, 
 and not the court, who are to pass upon and de 
 termine, by their verdict, the whole matter of 
 law and fact in the case, and the court has no 
 power or right to interfere with the power and 
 the right of the jury to acquit. 
 
 Now, Sir, we have got involved in subtle defi 
 nitions and technical contradictions by this new 
 judicial theory of power without right, and I de 
 sire, as it seems to me all should desire, to have 
 this matter authoritatively settled by the people, 
 in their new Constitution, so that we may no 
 longer have these contentions between judges, 
 lawyers, and juries, but may return to the old 
 safe practice of leaving the whole case, law and 
 fact, to the "judgment" of the "peers," the jurors. 
 
 Manifestly a necessity has arisen for this de 
 claration. Junius well said of Lord Mansfield, 
 who began this work of destroying the trial by 
 jury : " Let the case be what it may, your under 
 standing is always on the rack to contract the 
 power of the jury, or to mislead their judgment." 
 And as Lord Mansfield did in his day, so some 
 modern judges have done and are now doing in 
 their day ; and this is a reason why the judiciary 
 has fallen somewhat in its old repute; not be 
 cause it has not enforced law, but because it has 
 too much attempted to enforce juries and contract 
 their rights. And this has caused criticisms and 
 comments of the profession and the press, in 
 which the judiciary has had the arbitrary side of 
 the argument. While I concede all that may be 
 asked to the learning and ability of Massachusetts 
 judges, I feel bound to say, nevertheless, that this 
 tendency~of the bench to contract the power of 
 juries and control their verdicts, has been carried 
 farther in this Commonwealth than in any other 
 State in the Union. In Maine, in Yermont, and 
 
 other States, this great right of juries has been 
 again and again judicially affirmed, and it is 
 made a part of the Constitutions of several of the 
 States, and the criminal law is as wisely admin 
 istered there as here, for the public security. So 
 in all that time, in which the right was never 
 denied in Massachusetts, until Judge Story began 
 it, sixteen years ago, who will deny that law was 
 as safely enforced in this Commonwealth as it 
 has been since ? 
 
 Now, let us put this question directly to the 
 people, for them to settle. If it is their will that 
 the judges shall control the verdicts of juries in 
 criminal trials, precisely as the law authorizes 
 them to do in civil cases, so that the jury are to 
 find the fact, separate from the crime, and the 
 court apply the law to it, as in a special verdict, 
 then let it be so proclaimed ; and that will strike 
 out of the Bill of Rights the "trial by jury" and 
 the "judgment of the peers." But if they mean 
 to preserve the ancient right of juries as the pal 
 ladium of personal liberty, they will put this 
 provision into the Constitution, and it will there 
 remain, an undisputed and perpetual right. 
 
 Mr. DANA, for Manchester. I will take a 
 moment out of my very short time, to ask the 
 gentleman for Wilbraham whether he means that 
 juries shall be exclusive judges of the law of evi 
 dence, and of the reception or rejection of the 
 testimony of a witness ? 
 
 Mr. HALLETT. No such theory is embraced 
 in or can be construed out of tbat provision. It 
 is only in regard to receiving instructions. 
 
 Mr. DANA. Suppose that certain evidence is 
 given in, and the court tells the jury that that 
 evidence is not admissible ; are the jury then to 
 receive it or to throw it out, each man as he 
 chooses ? 
 
 Mr. HALLETT. The answer to that is simply 
 this : The jury is sworn to determine between 
 the prisoner at the bar and the Commonwealth, 
 according to the evidence. That evidence is what 
 goes to them under the supervision of the court. 
 That evidence that is not given to them, or that is 
 withdrawn, they have nothing to do with. 
 
 Mr. DANA. Then the gentleman admits that 
 the jury are bound by the decision of the court 
 upon the law of evidence. But this is not clear 
 from the resolve. The resolve says : "In all 
 trials for criminal offences, the jury, after having 
 received the instructions 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." 
 So that it is no matter what the instructions of 
 the court may be, the jury are not bound to fol 
 low them. If the court say to the jury that a 
 certain piece of evidence is not to be received, still 
 
452 
 
 BILL OF RIGHTS. 
 
 [68th day. 
 
 Wednesday,] 
 
 DANA HALLETT. 
 
 [July 27th. 
 
 the jury have, by this provision, a right to receive 
 it or not, as they may see fit, and each juror as he 
 sees fit. But I understand the gentleman for 
 Wilbraham to say that this is not so. He should 
 provide, in his resolution, that it should not apply 
 to the case of evidence. 
 
 Then, Sir, there is another consideration, and 
 that is, whether the rights of parties in criminal 
 cases do not depend nearly as much upon the law 
 of evidence as upon any other law ; and if he 
 provides that they shall not be judges of the law 
 of evidence, but shall take the law, in that case, 
 from the court, then he has surrendered one-half 
 of his case, and all the principle of his case. The 
 law fixes the rules of evidence that shall acquit or 
 convict a man. I offer a piece of evidence tend 
 ing to acquit a man charged with crime. The 
 judge says that such evidence is not admissible. 
 If the jury think that, if received, it would clear 
 the prisoner, and that it ought to be received, and 
 yet reject it, does not the jury convict the man 
 against its view of the true legal case ? 
 
 Mr. HALLETT. We merely propose to re 
 store the original rights of the jury. If the gen 
 tleman for Manchester desires to embrace the ques 
 tion of evidence he can do so. 
 
 Mr. DANA. Then I understand the gentle 
 man to say that he does not include the law in 
 regard to evidence. Let me carry out the illus 
 tration I had commenced. Here is a piece of evi 
 dence tending to acquit a prisoner. The court 
 says that it cannot be received. The jury say 
 that it can ; yet the jury is not to judge, but 
 are tied, hand and foot, by the court. Now, am 
 I not right in saying that the gentleman has sur 
 rendered his principle on a very material point ? 
 And the fact that he has surrendered it there, 
 shows me and I hope it will show every gentle 
 man in the Convention, who will consider this 
 matter candidly and without passion that this 
 principle cannot be carried out. 
 
 It is now the rule that juries pass upon the law 
 in rendering general verdicts, as well as upon the 
 facts. It always has been so ; and when judges 
 take from juries this right, they have usurped 
 a power which does not belong to them. It 
 has not been done in this Commonwealth. 
 Lord Mansfield attempted to encroach upon the 
 right of the juries, by telling them whether a cer 
 tain publication was a libel or not. But an act 
 of parliament drawn in the first place by Burke, 
 and afterwards altered and carried through by 
 Fox provided that the question, whether the 
 particular publication was a libel or not, including 
 the intent, should be decided by the jury and not 
 by the court. This is now the law here, and it 
 is the law everywhere. But this does not make 
 
 the jury judges of the law. It only transfers one 
 subject from the department of law to the depart 
 ment of fact from the court to the jury, still 
 leaving each its department. 
 
 This proposition introduced by the gentleman 
 for Wilbraham, (Mr. Hallett,) is one of two 
 things. It either has no significance at all, and 
 leaves the law as it now is ; or else it introduces 
 a new and dangerous principle. It is one or the 
 other. It does seem to me that the gentleman for 
 Wilbraham is a little disposed unintentionally, 
 of course to make this Convention a court of 
 errors, to rectify the decisions of courts given in 
 cases which he has lost. [Laughter.] First is 
 the case of Abner Kneeland. That must be set 
 right by amending the third article of the Bill 
 of Eights. Then the Porter case. That requires 
 an amendment of another article. To soothe 
 his mind on the Rhode Island cases, we must 
 have a new declaration of the right of self- 
 government, and an abrogation of the right of the 
 legislature to proclaim martial law. He takes 
 these cases too much to heart. He would make 
 this Convention hinge on the Dorr controversy, 
 and Abner Kneeland and Zachary Porter. 
 
 Mr. HALLETT, (interrupting). The gentle 
 man has probably in his mind his habeas corpus 
 in the Sims case. 
 
 Mr. DANA. I think these cases have made a 
 lodgement in the mind of that gentleman, and he 
 cannot be easy until he makes the action of this 
 Convention turn upon them. On the subject of 
 amendments to the Constitution, it must turn on 
 the Rhode Island case. On the subject of law 
 martial, it must turn on the Rhode Island case. 
 On the subject of the jury s judging of the law, 
 it must turn on the Kneeland and Porter cases. 
 
 Consider, for one moment, if this proposition 
 is adopted, and the jury are to judge of the law, 
 what the consequences will be. I must throw 
 myself upon the candor of the Convention, at 
 this time, as I know they are not disposed to hear 
 speeches at this late day, and the popular feeling 
 is in favor of juries. 
 
 There is one great fact taught by all history : 
 that is, that liberty is best secured by a division 
 of power. We have divided our government 
 into three great departments : the executive, the 
 legislative, and the judicial. Why ? Because 
 liberty is best secured by a division of power. 
 Why do we have judges and juries ? Because 
 liberty is best secured by a division of power. 
 Whatever gentlemen may think of a particular 
 case or law, of the fugitive slave law, of the 
 liquor law, or of the libel law, when you take 
 all together, the whole history of the past, liberty 
 is best preserved by a division of power. Give 
 
68th day.] 
 
 BILL OF RIGHTS. 
 
 453 
 
 Wednesday,] 
 
 DANA HALLETT. 
 
 [July 27th. 
 
 your judges the responsibility for the law, and 
 give to your juries the responsibility for the facts, 
 with the right of applying them and declaring 
 the result. But, if you make your judges judges 
 of law and fact both, however good your judges 
 may be, your liberties cannot long be safe. You 
 may give me a court of seven of the best men in 
 Christendom, and I would not allow them to 
 judge of the law and fact in criminal cases. 
 Give me twelve of the best men in Christendom 
 for a jury, and, in the long run, I would not 
 allow them to be judges of both law and fact, in 
 the sense of the gentleman for Wilbraham, that 
 is, that they should be the final and conclusive 
 judges. 
 
 Let gentlemen look at the result. We wish to 
 have laws uniform and well settled, if we have 
 laws at all. The interpretation of laws must be 
 as much settled, as the writing of the law. We 
 pass a statute, and the interpretation of it is a 
 great point. How can we ever have a settled 
 interpretation, if the jury are to be the judges ? 
 The juries never give a reason for their ver 
 dicts. They go out and consider their verdict, 
 and come in and say " not guilty ;" but whether 
 they come to their conclusion for want of evi 
 dence, or because they thought the law applica 
 ble to the case unconstitutional, or because they 
 understood the law in a peculiar way, or rejected 
 or accepted certain evidence, never can be known. 
 Two men may be engaged in the commission of 
 the same offence. They may separate in their 
 trials, and one goes to the first jury, and he is 
 acquitted, and the other goes before the second 
 jury, and he is convicted. They are tried on the 
 same evidence, and by the same judge. You can 
 never know why one was taken and the other 
 left. It may be that the jury thought certain 
 evidence admissible in the one case, which was 
 not received in the other. One jury may have 
 thought the law constitutional, and the other not. 
 There is no record to show their reasons, and it 
 can never be known, until the sea gives up its 
 dead, why the one was acquitted and the other 
 hanged. Now, if the jury is to judge of the 
 law, I insist that the jury shall give their rea 
 sons, and that those reasons shall be reported. I 
 should like to see the gentleman for Wilbraham, 
 (Mr. Hallett,) made the reporter of all the deci 
 sions of the juries in the whole Commonwealth 
 of Massachusetts. Then, perhaps, we should 
 know what the laws are, under Avhich we are to 
 live. 
 
 But if this resolve passes, and a person comes 
 to me and wants to know what the law in a civil 
 case is, I can tell him. Here is a statute that has 
 been interpreted by the supreme court, upon full 
 
 deliberation, and they have decided that it is so 
 and so, and every jury impanelled must follow 
 that decision. If the law is not popular, the peo 
 ple, through their legislature, can alter it. But 
 if he comes to me with a criminal case which is 
 vastly more important to him than a civil case, as 
 it involves his life, his property, his liberty I 
 would have to say to him that the Convention of 
 1853 passed a resolve, at the suggestion of the 
 gentleman for Wilbraham 
 
 Mr. HALLETT, (interrupting). Not upon 
 my suggestion. 
 
 Mr. DANA. Well, I pass that by, since he 
 disowns it, as it will consume my time. 
 
 Mr. HALLETT. The gentleman says the Con 
 vention passed it at my suggestion. It is not so. 
 Six gentlemen have reported it to the Convention. 
 
 Mr. DANA. Well, the Convention passed a 
 resolve at somebody s suggestion, that the jury is 
 to settle these matters. Now, my dear Sir, I 
 cannot tell you the law for the life of me. It 
 depends entirely upon the twelve men you may 
 happen to get to try you. One jury of twelve 
 men may think the law applicable to your case 
 constitutional, and another may think it uncon 
 stitutional, and you may be acquitted or convict 
 ed accordingly, and, what is more, you never can 
 find out the reason why you were acquitted or 
 convicted. 
 
 The consequence of this would be, that in Bos 
 ton the fugitive slave law will be constitutional, 
 and in Worcester it will be unconstitutional, and 
 the Maine law vice versa. The result is, we shall 
 have no settled or certain law. A law will be 
 constitutional for you and not for me, and consti 
 tutional for me in one place, and on one day, and 
 not constitutional for me in another place, or at 
 another time. 
 
 Now, what is the result under the present sys 
 tem ? The judges instruct the jury, and the jury 
 take the law from the court, and the facts from 
 the witnesses. They go out, and find a general 
 verdict upon both law and fact. If we think the 
 rulings of the court were wrong upon the law, we 
 take exceptions, and go to the supreme court, and 
 they determine the law and reverse the judgment, 
 if the charge of the judge below was wrong. If 
 the supreme court does not decide it satisfactorily 
 to the people, the people, through the legislature, 
 can repeal the law and overrule the decision. 
 The decision of the court is not final, for the leg 
 islature control the court. I beg gentlemen to 
 understand that they are not under the control of 
 the court. If a man is convicted under a wrong 
 ful decision, he may be pardoned by the execu 
 tive, and reinstated or reimbursed by the legisla 
 ture. But if he is wrongfully convicted by the 
 
454 
 
 BILL OF RIGHTS. 
 
 [68th day. 
 
 Wednesday,] 
 
 ALLEN. 
 
 [July 27th. 
 
 jury, the cause can never be legally known, and 
 he cannot, therefore, be so certainly or properly 
 redressed. 
 
 [Here the President s hammer fell, fifteen min 
 utes, allowed by the rule for debate to each indi 
 vidual, having expired.] 
 
 Mr. ALLEN", of Worcester. It may be some 
 what rash in me to think of supporting the re 
 solve. I find myself unable to act in conformity 
 with the experience of my conservative friend 
 who has just spoken, (Mr. Dana,) and also with 
 the conservative gentleman from Cambridge, (Mr. 
 Ladd,) and I find myself upon the side of that 
 rash and progressive innovator, the delegate from 
 Cambridge, the former chief justice of New 
 Hampshire, (Mr. Parker,) for upon this very 
 question, as already intimated, that distinguished 
 gentleman and his associates have determined that 
 the law in this country, and in the country from 
 which most of our ancestors came, was always in 
 conformity with the principle presented through 
 the resolve now before us. 
 
 Sir, it seems to me, that the pangs and fears 
 which haunt my friends, at the very idea that a 
 jury should be allowed to pass upon the law in 
 criminal cases, after all the opportunity they have 
 had, derived from the instruction of a learned 
 court, results from an unreasonable distrust of 
 that institution. And that is the radical differ 
 ence which separates, I apprehend, some of us 
 from the others. The fear is, that that which our 
 fathers regarded as the palladium of our liberties, 
 should prove to be their destruction, and that 
 there is no safety for freedom to be found but 
 upon the bench. Now, Sir, I have no such fear. 
 Neither the experience of the past, nor my own 
 reflection, have filled me with any such apprehen 
 sions. In the course of a somewhat long profes 
 sional career, from year to year, I have learned to 
 respect more and more the decisions of juries. I 
 have learned to re.st there as the last resort and 
 defence of my liberties, my rights, and my privi 
 leges. The legislature may pass unreasonable and 
 unconstitutional laws, and conservative courts 
 may sustain them, but I will trust to the jury, 
 with the Constitution and the Bill of Ilights in 
 their hands, to protect me against any unconsti 
 tutional or unreasonable dangers. Sir, in ordi 
 nary cases, the juries will always take the law 
 from the court, which relieves them from great 
 responsibility a responsibility from winch they 
 seek to be relieved. Inasmuch as they take an 
 oath to act upon the law and the evidence, and to 
 decide rightly, they may consistently with the 
 obligations of that oath, leave the law to the opin 
 ion of the court. 
 
 But there are great cases which sometimes arise 
 
 in the history of a nation, in which fundamental 
 principles are assailed, when you cannot rely en 
 tirely upon the legislature or upon the courts ; 
 when your defence must come from the people 
 themselves, from the juries who are of the people. 
 Sir, the Bill of nights declares certain great prin 
 ciples, and secures certain privileges, among 
 which are that all men are born free and equal, 
 and that they have the right to defend their lives 
 and liberties. Now if a law is passed which 
 contravenes these rights, I do not believe it should 
 be left entirely to the court to determine what the 
 law is. I believe the people themselves have the 
 right to this security, not only against the legisla 
 ture but against the court too. I believe the jury 
 have the right to say whether, in their opinion, a 
 law violates a fundamental principle laid down in 
 this Bill of Ilights. They will spurn the opinion 
 of the legislature, and of the courts, and all hu 
 man authority that can be combined, and standing 
 upon the charter of all men of Massachusetts, will 
 declare the law to be unconstitutional. 
 
 Such cases have arisen, and I wish I had time 
 to speak of them more at length. But I will con 
 fine myself to one, and that is the law passed by 
 the congress of the United States. I would not 
 at this time introduce the subject myself, but it 
 has been introduced, and now I say that, in my 
 opinion, a law more unconstitutional, more deadly 
 and vital in its action upon human liberty, could 
 never have been framed. And how was it done ? 
 It stands upon the records of congress, and let it 
 stand upon the records of Massachusetts. Why, 
 Sir, men more desirous of protecting the power 
 of the slave-holder over the slave than of securing 
 the rights of the millions of the free, demanded 
 further legislative enactments. A piece of white 
 paper for I will not use French when I can get 
 good economical English was given to a nulli- 
 ficr, a member of the Senate, from one of the 
 southern States, and upon that he wrote what he 
 pleased, and upon it he inscribed one of the most 
 arbitrary enactments, and in one instance holding 
 forth a bribe to the commissioner to send a man, 
 may be a citizen of Massachusetts, into slavery. 
 I trust, however, there are some men in Massa 
 chusetts, and in this Convention, above the in 
 fluence of bribes. Yet the law does hold forth 
 that bribe to induce the commissioner to send back 
 into chains, it may be a citizen of Massachusetts, 
 who may be claimed by a southern slave-holder. 
 By another provision a citizen of Massachusetts 
 is to be deprived of the right of trial by jury, here 
 at home, where his witnesses and counsel can be 
 obtained ; and not only here, but everywhere, for 
 it is in vain to say that he could obtain the bene 
 fits of that trial in South Carolina, where his 
 
68th day.] 
 
 BILL OF RIGHTS. 
 
 455 
 
 "Wednesday,] 
 
 ALLEN. 
 
 [July 27th. 
 
 counsel could not go, and where his witnesses, 
 those of his own color, could be enslaved. 
 
 But I will not go into this matter, but will 
 only say farther, that it would have rejoiced my 
 heart, when that question came before the su 
 preme court of Massachusetts, in advance of any 
 decision made upon it by the supreme court of 
 the United States, and unrestrained as the court 
 was, by any decision given by the court of the 
 United States, if they had declared it against the 
 fundamental rights of the people, and unconsti 
 tutional and void. That day would have done 
 honor to the judiciary of Massachusetts, and the 
 page which contained the record of such a de 
 cision would have been the brightest in the his 
 tory of Massachusetts. 
 
 Sir, I declare these views, and I wish to put 
 them upon the record ; and if I am not sustained 
 by the opinion of men around me, I ask the 
 decision of posterity upon the words I now utter, 
 if ever they in looking over the proceedings of 
 this Convention shall take notice of the opinion 
 of one so humble as myself. 
 
 But the court did not do that. I do not intend 
 to reproach that court. I have a high respect for 
 it, and in regard for the venerable chief justice 
 who has presided over it for nearly a quarter 
 of a century, I yield to no man. Yet certain 
 influences did bind and control the court, and, 
 in that instance, their decision, instead of re 
 flecting honor, will reflect disgrace upon the 
 history of Massachusetts. It will be in the 
 history of that court, a blot upon its fair pages. 
 Not in that case alone, but whenever the prin 
 ciples which we declare to be at the foundation of 
 our frame of government are infringed upon 
 whenever the rights which we reserve to the peo 
 ple are invaded by any law, I ask, that in that 
 case, a jury coming from the people may be al 
 lowed to come in and give their judgment, and 
 rescue the people, in the name of their declared 
 rights, from an unconstitutional law, or from an 
 unconstitutional interpretation of that law. 
 
 The fears which have been suggested of diffi 
 culty, from the fact that jurors may differ as to 
 the construction of a law, I apprehend, is but a 
 technical difficulty, and would not be found to 
 exist in fact. 
 
 But it is said that juries would not decide alike 
 upon the same law. "Well, Sir, have judges al 
 ways decided alike ? Does not my friend for 
 Manchester, (Mr. Dana,) know that there are 
 volumes of decisions given by the judges re 
 versing former decisions ? Why should not juries 
 decide unlike ? Because one decision is wrong, 
 should both be wrong ? 
 
 Mr. DANA. I can answer the gentleman. 
 
 Mr. ALLEN". I have not time to yield to the 
 gentleman. I have no doubt of his ingenuity to 
 answer any difficulty that could be raised. We 
 have seen enough of that gentleman s ingenuity. 
 I suppose he would answer that it is impossible 
 for a jury to decide every little quibbling doubt 
 that may be raised by an attorney that they could 
 not retire to decide such questions. I suppose 
 the gentleman would answer by such arguments 
 as that, but I hope he would not puzzle this 
 great jury. I hope he would not lead them to 
 abandon this great and important principle, be 
 cause of the ingenious difficulties which he might 
 raise in every possible case against carrying that 
 principle out. That gentleman knows very well, 
 that when we have a great and sound principle 
 before us, it is our duty to carry it out as far as 
 we can ; and when it becomes impracticable, or 
 inconsistent to adhere to it, we are not to be cen 
 sured for failing to do what we cannot do. 
 
 Fears and difficulties have been introduced 
 here to affect the minds of temperance men 
 and I am happy to know that a large majority of 
 the members of the Convention are of that class 
 that the jury will not be true to them. Now 
 I ask the friends of temperance from what quar 
 ter they have met with the greatest hinderances ? 
 Has it been the jury in Rhode Island, who have 
 found flaws with every complaint which has been 
 brought up : Is it the jury who throw obstacles 
 in the way, when such cases are brought up ? 
 When facts, evidence, and experience, prove that 
 a law is a wise, wholesome, and equitable law, 
 has it been the jury who were found to set 
 aside that law r Has it not rather been the courts 
 who have met at the threshold every attempt to 
 carry out the law ? Have not these difficulties 
 arisen with the bench, and not with the jury ? 
 But, Sir, I see my time has expired, and I will 
 not proceed farther. 
 
 The PRESIDENT. The gentleman has two 
 minutes remaining. 
 
 Mr. ALLEN". Two minutes well, Sir, that 
 is enough to answer the argument of the gentle 
 man from Boston, (Mr. Hillard,) that it is not 
 democratic to allow one man to stand out against 
 eleven in deciding a question of law. Yet it is 
 very democratic for one man to stand out against 
 eleven bringing in a verdict of guilty, when he 
 believes, from the bottom of his heart, that the 
 man is not guilty. Is it democratic for the ma- 
 jorit) 7 to govern in the jury-box ? The gentleman 
 says, he has never been in a town meeting. Sure 
 ly he has been in a court-house. Yet it is a 
 wholesome, humane law, that a majority of a 
 jury shall not convict a man, and incarcerate a 
 man in prison. It is a just and proper rule, that 
 
456 
 
 BILL OF RIGHTS. 
 
 [68th day. 
 
 Wednesday,] 
 
 PARKER HALLETT. 
 
 [July 27th. 
 
 a man shall not be deprived of his property, his 
 reputation, or of his life, until twelve men have 
 agreed that he is guilty of a violation of that 
 law. 
 
 [Here the hammer fell.] 
 
 Mr. PARKER, of Cambridge. The honorable 
 gentleman from Worcester, (Mr. Allen,) is under 
 a misapprehension respecting the decision in New 
 Hampshire ; and however much I may desire to 
 stand by the side of that gentleman, I cannot 
 have that pleasure upon the present occasion. 
 The decision to which he refers which the 
 gentleman representing Northborough charac 
 terizes as "respectable," and which, according to 
 the remarks of the gentleman representing Wil- 
 braham, (Mr. Hallett,) was an outrage upon the 
 rights of the jury was the other way. 
 
 Sir, I have perhaps as little interest in the de 
 cision of the question now before the Convention, 
 as any member of the community. I have no 
 particular anticipation that I shall be placed at 
 the bar of a court in such a position that I shall 
 have occasion to appeal from the law of the bench 
 which leaves my case hopeless, to the law of the 
 jury, with the hope that they will overrule it. I 
 have no supposition that I shall find myself again 
 at the other bar, defending a party accused of 
 crime under such circumstances, that I shall 
 desire to shake my finger at the judge upon the 
 bench and say : " Sir, you may believe after all 
 your studies, that such is the law, but here is a 
 tribunal that will overrule your decision, and 
 they have the right under the Constitution to do 
 it." Still less have I any expectation that I shall 
 ever again be placed in a situation where the 
 counsel may beard me in that manner. 
 
 But, Sir, as my attention has been called to this 
 subject in former years, and I am a member of 
 the Committee on the Bill of Rights, from which 
 this Minority Report comes, it may be expect 
 ed that I should take a part in this debate, 
 more especially as the chairman, by signing this 
 Report, appears to have gone over to the ene 
 my. The case in New Hampshire occurred in 
 1812. It was a prosecution under the law of 
 that State passed in 1838, prohibiting the sale of 
 liquors in any quantity, without a license from 
 the proper authority. It was my fortune to pre 
 side at the trial in the common pleas. Two 
 individuals composing a mercantile firm, were 
 :i.n.<!ieted for selling a barrel of gin without a 
 I License, They were defended by the gentleman 
 vwho rjepref.eiits "SVilbraham, (Mr. Hallett,) and 
 sano.that ^Mtinguished gentleman who has since 
 1>een a eaa&i&&e for the highest office in the gift 
 of the people, (/ohn P. Hale,) and of course we 
 .know that they -s^re defended with all the zeal 
 
 and all the ability which could be brought into 
 requisition in such a case. 
 
 Several questions were raised in that case, and 
 among them a preliminary question in relation to 
 the organization of the jury. Questions were put 
 to the jurors, and as that course has been censured 
 here I will state them, that gentlemen may see 
 how far courts go upon that subject. The ques 
 tions were : 
 
 "1. Have you formed an opinion that the law 
 regulating licensed houses is unconstitutional, so 
 that you cannot convict a person indicted under 
 it, if the facts alleged in the indictment are proved, 
 and the court hold the statute to be constitu 
 tional ? 
 
 " 2. Do you hold any opinion upon the subject 
 of the license laws, so called, which will induce 
 you to refuse to convict a person indicted under 
 them, if the facts set forth in the indictment, and 
 constituting the offence, are proved against him, 
 and the court direct you that the law is constitu 
 tional ? 
 
 " 3. Do you hold any opinions upon the sub 
 ject of the license laws which will induce you to 
 convict a person if the court shall direct you that 
 the statute under which he is indicted is uncon 
 stitutional ? " 
 
 The object was to obtain a jury which could 
 come to the performance of the duty, with such 
 opinions as would permit them to try the case 
 according to the evidence before them. 
 
 Other questions were raised on the trial. One 
 was, whether the jury were judges of the law as 
 well as of the fact. Another, whether the law 
 itself was constitutional. It appeared that the 
 barrel of gin was purchased in Massachusetts, 
 brought to New Hampshire, and sold in the same 
 condition in which it was purchased ; and it was 
 contended that the law was unconstitutional in its 
 application to that case, by reason of the provision 
 of the Constitution of the United States, giving to 
 congress the power to regulate commerce. 
 
 Mr. HALLETT. I ask the gentleman to allow 
 me to correct him. I did not raise the question 
 that the jury were the judges of the law and fact. 
 
 Mr. PARKER. Then I have been laboring 
 under a misapprehension for more than ten years. 
 It was so put upon that occasion. 
 
 Mr. HALLETT. Not by me. I did not say 
 the jury were the judges. That position was not 
 taken by me, but that they passed upon and de 
 termined all questions of law and fact in the case. 
 
 Mr. PARKER. If such was not the exact 
 phraseology, it was substantially the position 
 taken. It was said that the jury had the power 
 to judge of the law, and that this proved con 
 clusively that they had the right to judge of 
 the law that the power carried with it the right, 
 
68th day.] 
 
 BILL OF RIGHTS. 
 
 457 
 
 Wednesday,] 
 
 PARKER BUTLER. 
 
 [July 27th. 
 
 as a matter of course. And I do not know what 
 that means unless it is that the jury are the judges 
 of the law. That position was distinctly stated 
 by the gentleman again and again. These ques 
 tions were argued before the jury with all the 
 learning and power of that gentleman, and with 
 out any objection upon the part of the court. 
 But the court in charging the jury, instructed 
 them that juries were not judges of the law, and 
 that the statute of New Hampshire was a consti 
 tutional act. 
 
 The jury were of opinion against the defence 
 upon one or the other of these points, and re 
 turned a verdict of guilty. The case was carried 
 before the superior court of New Hampshire, and 
 both these rulings sustained. It was then carried 
 to the supreme court of the United States, upon 
 the last point that of the constitutionality of the 
 law and the decision was affirmed there. 
 
 Now, here is another case which the gentle 
 man for Wilbraham will never forget. He lost 
 it; and I attained the bad eminence of being 
 chronicled in some of the newspapers as an arbi 
 trary judge ; as second only to Chief Justice 
 Jeffreys. The gentleman may perhaps recollect 
 something of that. Chief Justice D urfee, of Rhode 
 Island, was afterwards added, I think, to make 
 up a trio. 
 
 Sir, I have no time to go into an argument 
 upon this question whether the jury are judges 
 of the law, as well as fact. I had occasion to 
 express my opinion in that case, and it is upon 
 the record. I have no doubt that in England, at 
 the earliest stage of their legal proceedings, of 
 which we have knowledge of juries, they were 
 judges of the law as well as of the fact, not only 
 in criminal cases, but in civil cases. For a long 
 period, they were punishable if they gave a false 
 verdict. They were anciently the principal wit 
 nesses, also. They were summoned from the 
 vicinage from among those who were supposed 
 to have the best knowledge of the facts of the 
 case, and were expected to decide from their own 
 knowledge, more than from the evidence which 
 was presented. Cases were sometimes decided 
 by battle, and by ordeal, also, in those days. But, 
 Sir, the law is in the ranks of the progressives. It 
 has made progress since that time, in divers par 
 ticulars, and among others, in the mode of trial by 
 jury. The jury are no longer to judge from 
 their personal knowledge of the facts of the case, 
 and courts set aside verdicts, and arrest judg 
 ment after verdicts. It is fully established and 
 understood that juries are not judges of the law 
 in civil cases ; but they pass upon the law and 
 the fact in a general verdict ; and the question has 
 arisen, whether the same change and adaptation 
 
 of rules does not apply in criminal cases as in 
 civil cases. That is a question upon which there 
 has been a great difference of opinion upon the 
 bench and elsewhere. 
 
 The case referred to by the gentleman for Wil 
 braham, where the jury, as he said, took the mat 
 ter into their own hands, I do not understand to 
 be a case in which they undertook to settle the 
 law. It seems they settled the fact that there was 
 no witchcraft. 
 
 The case which he refers to, before Chief Jus 
 tice Jay, of the supreme court of the United States, 
 was not, as he supposes, a decision that the jury 
 were the judges of the law in criminal cases. 
 As reported, the chief justice declared that they 
 were the judges of the law generally, and the case 
 was a civil case. Now, I maintain that the right 
 of the court to set aside the verdict and to arrest 
 the judgment, is altogether inconsistent with a 
 right on the part of the jury to decide questions 
 of law either in civil or criminal cases. When 
 juries exercise a right of that kind, while at the 
 same time the court overrules their decisions, the 
 judicial system is incongruous. The right may 
 be conferred even by statute. But, if you incor 
 porate this provision into the Constitution, and 
 a jury convict a man upon charges, which in the 
 opinion of the court are not sufficient, or not 
 sustained according to law, I doubt whether the 
 court, iipon principle, can have the power to set 
 aside the verdict or arrest the judgment. It is 
 not quite clear to my mind, that if this provision 
 is adopted, your courts can consistently exercise 
 such powers in any criminal case. 
 
 I have but a moment left to speak of the prac 
 tical operation of this provision, if adopted, and, 
 instead of enlarging upon this topic, as I should 
 otherwise desire to do, I ask leave of the Con 
 vention to read a paragraph from the charge given 
 to the jury in the case in New Hampshire, as 
 published in a pamphlet at the time : 
 
 " It is contended that the defendants are not 
 liable, because the act of 1838 was unconstitu 
 tional. Whether it is unconstitutional or not, is 
 a question that should be settled in some way. 
 How is it to be settled ? If the doctrine so 
 earnestly contended for, be correct, it never can 
 be settled, so far at least as criminal cases are con 
 cerned." 
 
 [Here the hammer fell.] 
 
 Mr. BUTLER, of Lowell. Sir, I can promise 
 the Convention that I will not occupy much time 
 upon this matter. 
 
 Mr. PARKER. I dislike to trespass upon the 
 courtesy of the Convention, but I wish to read 
 the remainder of the paragraph which I had com 
 menced. 
 
458 
 
 BILL OF RIGHTS. 
 
 [68th day. 
 
 Wednesday,] 
 
 PARKER BUTLER. 
 
 [July 27th. 
 
 Mr. BUTLER. I will give way. 
 Mr. PARKER read as follows : 
 
 " If the constitutionality of this statute may be 
 drawn in question in a civil case, it may be set 
 tled so far as civil cases are concerned. But if 
 the defendant s counsel are right, that would not 
 settle it as to criminal cases. And no verdict 
 would settle it in such cases ; for, if one jury is 
 to judge of the matter, every jury is to judge ; 
 and what each will judge cannot be known, until 
 the matter is tried. Well, gentlemen, one man 
 assumes that the statute is unconstitutional he 
 purchases in Massachusetts, sells the article here, 
 and is indicted. The jury so find, and as to him 
 the statute is unconstitutional. Another person 
 seeing this, and thinking the laws operate equally 
 on all, does the same. He purchases the same 
 kind of article, from the same dealer in Massa 
 chusetts, brings it here, and sells it in the same 
 condition, to the same individual to whom the 
 first sold. He is indicted, and another jury find 
 the other way. As to him, then, the law is con 
 stitutional. Take the case of the same jury, sit 
 ting in a civil, and then in a criminal case. A 
 civil case arises which involves the constitution 
 ality of the law. The court rule that it is con 
 stitutional. The juror is bound to regard that as 
 the true construction, and his conscience returns 
 a verdict accordingly. The law is constitutional. 
 A criminal case follows, which involves the same 
 question. The juror is sworn to the same effect 
 that is, to give a true verdict. But he disliked 
 the instruction in the civil case ; his conscience 
 turns round, and he holds the law to be uncon 
 stitutional. And so his conscience must keep 
 turning, as it encounters a civil or a criminal 
 case. If it is a civil case, he has a civil con 
 science. If a criminal case, his conscience is of a 
 different character." 
 
 Mr. BUTLER. Well, Mr. President, I wish 
 to say, before I go on with my remarks, that that 
 is the longest paragraph that I ever listened to. 
 [Laughter.] I cannot forbear entering my pro 
 test against what I deem to be an innovation upon 
 the old rule of common law. So far as I have 
 learned anything with regard to this question, 
 from my earlier teachings, from the early books 
 that I read, and from the old lights upon English 
 common law, it was laid down, not as a principle, 
 not as an axiom, not as a rule, but as a boast 
 for it was a boast of the common law that juries 
 were judges of the law as well as of the fact, in 
 criminal cases. And my heart kindled, Sir, as I 
 read of the struggle between the people and 
 crown, the court and the jury, for this right, as I 
 gradually saw that great right rising on the dark 
 horizon of law, like the morning sun, until it 
 illuminated the whole system ; and, Sir, I thought 
 that nothing was better settled in this Common 
 wealth ; aye, Sir, as nothing had been better set 
 tled in England, nothing was better settled in 
 
 this country, than this doctrine. And, Sir, the 
 first shock that my mind received, the first time 
 anything came across me to unsettle it, was when 
 I read the charge, the last paragraph of which we 
 have just listened to, made to a jury by the gen 
 tleman from Cambridge. And again the blood 
 stirred within me on reading that charge, but 
 with a different feeling ; and notwithstanding my 
 great respect for the gentleman who delivered 
 that charge, every drop of my blood boiled in my 
 veins under the idea that a judge should tell a 
 jury that they had not the right to determine 
 the law and the fact in criminal cases. Sir, the 
 Knapps w r ere hung on that instruction of the law. 
 The court sitting on that case said to the jury, 
 " You have a right to judge the law and the fact, 
 and no man can step between it and you." But 
 when it becomes popular in a community to carry 
 a favorite measure through the courts, or to con 
 vict an unfortunate criminal, then it is very con 
 venient for a judge to do what ? First, when a 
 man is to be tried by his peers, and when they 
 get into the jury-box, to weed them out, so as to 
 try him by a set of men who are not his peers, 
 who have no fellow feeling, but men who, by 
 their position, feelings, and sentiments, are dis 
 similar. The judge, taking care to weed the 
 jury-box of every man who has the same set of 
 feelings, then proceeds to try him, not by his 
 peers, but by some picked and packed set of men. 
 Sir, I detest, I hate and despise, this abominable 
 business of weeding the jury-box and attempting 
 to try men not by their peers. In some short 
 practice which I have had, I have seen something 
 of a number of jury trials ; and I take it upon 
 me to bear my testimony, most solemnly here, as 
 I would before my God, that I have seen quite 
 as many errors on the bench as in the jury-box ; 
 and I speak it with great respect to the learned 
 courts which have administered the law. 
 
 The jurors have no occasion to be afraid of the 
 people, for they are the people, in their primary 
 capacity. Who is the judge ? A learned man, an 
 honest man, a high-minded man ; but still a man. 
 What is to be tried ? The intention, the thoughts, 
 and as they bear upon the actions of another man. 
 Which is the best tribunal to try that case ? This 
 man who sits upon the bench, and who has no 
 sympathy, no fellow feeling, nothing in common 
 with the people ; who has hardly seen a common 
 man in twenty years ; and lest he should see one, 
 always has had a sheriff, with a long pole, to 
 attend him and keep them off. [Laughter.] Is 
 he the better man to try the case than they who 
 have the same stake in community, with their 
 wives, and children, and their fortunes, depending 
 on the integrity of the verdicts they shall render ? 
 
68th day.] 
 
 BILL OF RIGHTS, 
 
 459 
 
 Wednesday,] 
 
 BUTLER PARKER. 
 
 [July 27th. 
 
 "Who, I ask, is the best fitted to constitute a tri 
 bunal to try him ? And why can they not judge 
 of the law ? What is the law in criminal cases ? 
 There is a distinction which does not seem to have 
 been adverted to here. What is the law in criminal 
 cases ? It is not complicated. In a civil suit, the 
 law which applies to it, may be complicated ; but 
 in criminal cases, it is always a plain proposition 
 upon which the jury have to pass, with or without 
 the instruction of the j udge, a very plain proposition . 
 Let us see how it is. In the first place, every 
 man is bound to know the law ; and ignorance of 
 the law will not excuse him if he commits a crime 
 against the law. He is by the law bound to know 
 the law, and to be punished if he commits a 
 crime, even if he does not know it. Very good. 
 Yet you say, this criminal being bound to know 
 the law, and act upon his peril, twelve men who 
 are supposed to be as learned, or more learned 
 than he, do not know enough to try him for 
 breaking that very law which he was bound to 
 know. Will that do for a moment r That is all 
 there is about it. The crime consists in what ? 
 In doing some act against conscience and against 
 law with an intent to break it, or else the man is 
 not guilty. Yet you say, that twelve other men, 
 who are also bound to know the law, are not the 
 proper persons to try him. You say this crimi 
 nal must be punished, and even hanged, because 
 he ought to know the law, and yet these other 
 men are not fit to try him because they do not 
 know the law. Will gentlemen tell me that the 
 judges, reported in tenth Metcalf, did not know 
 that this was so. It is true they stultified them 
 selves when they undertook to say this, to wit : 
 that jurors had the power to judge of the law, 
 but had not the right ; or speaking as lawyers, 
 they had the power to do wrong. I deny it. 
 There is no power to do wrong. The gentleman 
 from Cambridge put it exactly when he said, that 
 the power always drew after it the right. I thank 
 him for that. The gentleman from Cambridge 
 said that. 
 
 Mr. PAIIKEH, of Cambridge. If the gentle 
 man will allow me, I wish to state, that I said 
 that was the argument, that the power showed the 
 right. It was the gentleman for Wilbraham who 
 used that argument. 
 
 Mr. BUTLER. Well, I will put it to the gen 
 tleman from Cambridge himself, if a man speak 
 ing as a lawyer to a lawyer lias the power to do 
 a thing, has he not the right to do it ? 
 
 Mr. PARKER. If the gentleman from Lowell 
 will look at the thirteenth New Hampshire Re 
 ports, he will see that I have denied such a con 
 clusion distinctly, and the reason for the posi 
 tion. 
 
 Mr. BUTLER. I have had an opportunity to 
 look at it. I say, that a man has no power to do 
 wrong. It is a misconstruction of language to 
 say he has. He has no legal power to do wrong : 
 he has the power to murder ; but that is not a 
 legal power ; it is a usurpation, it is an interfer 
 ence. The judges of the courts have said that 
 jurors have the power to render a verdict upon 
 the law, but not the right. They have said, the 
 jury shall hear the arguments of counsel on both 
 sides, upon the law, but not deliberate upon or 
 judge of that argument. And that was to get out 
 of a dilemma. 
 
 It seems to me, that the law is well settled. I 
 remember that when a very old doctrine was 
 preached, a doctrine found in the New Testa 
 ment, that a certain man went into a great city 
 where there was a temple, and when he preached 
 that doctrine, he drew after him a number of 
 others, who cried out pretty loudly: "Great is 
 Diana of the Ephesians." Well, why did they 
 do that ? Because a man who was a coppersmith, 
 and made shrines for Diana, feared for his craft, 
 that was in danger. Sir, I think we have a kind 
 of craft here, and I think I have heard the cry of 
 Alexander the coppersmith here. [Laughter.] 
 
 No, Sir, I would have no such fear of danger ; 
 I think we are not to make a Constitution here, 
 because somebody has given a decision in one State 
 or another. I wish to commend as I shall not 
 ask anybody else to stop while I read an argument 
 to the gentleman from Cambridge, the last 
 volume of the Reports of the court of Vermont, 
 where he will find the thirteenth New Hampshire, 
 and tenth Metcalf handled withoiit gloves. That 
 learned court decide, that jurors have the right 
 to determine both the law and the fact. 
 
 One thing farther. The gentleman from Cam 
 bridge says, that courts have the power to set 
 aside a verdict. That is the " usurpation." I 
 ask if that doctrine has not come down from 
 Jeffreys r It has grown up to be a practice in 
 tenderness to human life and liberty, that while 
 a verdict may be set aside, which is against a 
 criminal, it never can be set aside, when in his 
 favor. If the jury once find a verdict of not 
 guilty, there is no power that can interfere be 
 tween him and his crime, if he has committed a 
 crime. No court can set it aside. The next 
 usurpation was for the court to lay its hand upon 
 the law for they are a body sitting in perma 
 nence, reaching and grasping a little more God 
 made them so to do, for he made them men 
 
 [Here the time expired.] 
 
 Mr. LORD, of Salem. Mr. President 
 
 Mr. PARKER. If the gentleman from Salem 
 will permit me, I wish to say one word only. I 
 
460 
 
 BILL OF RIGHTS. 
 
 [68th day. 
 
 Wednesday,; 
 
 LORD. 
 
 [July 27th. 
 
 wish to say that if the gentleman from Lowell 
 has read the dissenting opinion in the Vermont 
 case, he has doubtless seen an opinion surpassing 
 in ability altogether, that given by the majority 
 of the court. 
 
 Mr. BUTLER. That depends upon the spec 
 tacles one reads through. [Laughter.] 
 
 Mr. LORD. I hoped that when the gentle 
 man from Cambridge alluded to a particular 
 branch of this subject, he was about to develop 
 his views upon it more fully, than even if he had 
 devoted all the rest of his time, he would have 
 had an opportunity to do. It was upon this 
 point, whether, if this resolution is passed, there 
 is the power in any tribunal, to revise the de 
 cisions of a jury upon a matter of law, however 
 unjust that decision may be. Take the case put 
 the other day, by the gentleman who represents 
 Wilbraham. He says the judges of the court 
 gave an extraordinary construction to that law, 
 which required two witnesses in case of treason ; 
 and I ask if jurors should come to such a 
 conclusion as that, is there any power to revise 
 such a decision on the part of any one ? I asked 
 the gentleman for Wilbraham, also, to consider 
 his own position in reference to another proposi 
 tion, that the jurors shall have nothing to do with 
 the matter of evidence. Suppose a party is in 
 dicted for libel, and the party indicted undertakes 
 to offer evidence of the truth of that libel, and 
 the court rejects that evidence, will he have the 
 party convicted, or must not his principle lead 
 him farther, to say that a jury in a case of libel 
 shall have the right to demand evidence of the 
 truth, if the party proposes to offer evidence of 
 the truth ? 
 
 The gentleman from Worcester made an appeal 
 to the friends of temperance, to know who it was 
 that was interfering with the due execution of the 
 law, the jurors or the judges; who was it that 
 was picking flaws in complaints and indict 
 ments. Would he have jurors pick flaws in 
 complaints and indictments ? The Constitution 
 of this Commonwealth used to say, and I believe 
 it says now, that no man shall be held to answer 
 to a charge of offence, unless the same shall be 
 fully and fairly, plainly and substantially, set out. 
 Who shall decide on that great constitutional 
 question ? Shall the court decide it, or shall the 
 jury decide it? Gentlemen on the jury know 
 just as well whether a party is properly charged 
 with an offence, as whether that party is guilty of 
 the offence. 
 
 My mind has been somewhat exercised upon 
 this subject, and what I desire is that some gen 
 tleman will explain to me the exact rcoint where 
 the jury shall have control over the rights of men 
 
 where it shall begin and where it shall end ; 
 but no man can do it in fifteen minutes. Every 
 body knows that the whole of a criminal charge 
 depends upon the evidence ; the evidence may be 
 excluded by the court, and yet, if the evidence 
 exists, it may have an effect upon the minds of 
 the jury. Perhaps the evidence might have 
 been more satisfactory ; but whose minds are 
 to be convinced as to whether the matter proved 
 is in violation of law ? The jury s. Under this 
 proposition, whose minds are to be convinced 
 as to what the law is ? The jury s. Now, Sir, 
 here is an enactment of the legislature. Men 
 may possibly differ as to the exact meaning of 
 the statute not whether it is constitutional or 
 not but as to the meaning of the statute ; and 
 who is to interpret that statute, the jurors or the 
 court ? These are questions which no gentleman 
 has undertaken to answer. There are difficulties 
 in this very plausible and beautiful theory ; and, 
 Sir, I am not prepared to embrace it, for I cannot 
 do so without risking the liberty of the subject to 
 a degree to which I am not willing to risk it. 
 
 I was somewhat struck by the extraordinary 
 statement of the gentleman from Worcester, (Mr. 
 Allen,) in regard to a particular law which has 
 been passed by congress ; and that gentleman de 
 sired to leave his statement upon record, that it 
 was as gross as violation of the Constitution, and 
 of the rights of man, as could be conceived of. 
 I should be most happy to have him tell the rea 
 son for his opinion, for I am not aware that there 
 is any principle in that law which is not upon our 
 own statute book not one. The party, of which 
 that gentleman is a member, has been in power 
 for two successive years here, and yet I have 
 never heard of their endeavoring to repeal any of 
 the provisions of these laws. Take, for example, 
 what he calls bribery. If a magistrate under that 
 law adjudges a party to be guilty, he gets more 
 fees than he does if he discharges him. Tery 
 well ; and so does any justice of the peace, if he 
 convicts a man of an offence in this Common 
 wealth ; but I never heard that called bribery. 
 There is not a justice of the peace in this Com 
 monwealth who does not get more money if he 
 convicts a man, than if he acquits him. Is that 
 bribery ? Why should men use such language 
 as that, to excite prejudice against a law, and 
 render it unpopular ? 
 
 There is another provision, and it seems to me 
 the most objectionable provision of the fugitive 
 slave law which is this : Any man may go before a 
 commissioner of the court, and get the custody of 
 another man, and carry him off there is no jury 
 trial. But is there not just such a law upon our 
 own statute book ? If an apprentice runs away 
 
68th day.] 
 
 BILL OF RIGHTS. 
 
 461 
 
 Wednesday,] 
 
 LORD GRAY. 
 
 [July 26th. 
 
 from his master, the master can go before a jus 
 tice of the peace and make his complaint, and that 
 justice of the peace may order the apprentice into 
 the custody of his master ; he may even authorize 
 the master to carry that apprentice beyond the 
 county where the justice of the peace has juris 
 diction. Why did not the gentleman s friends 
 repeal those laws which interfere with individual 
 liberty ? And we have another law, providing 
 that paupers may be sent out of the country 
 there is no jury trial about it ; but yet I never 
 heard anybody get up and say that these were 
 most monstrous infractions of personal liberty ! 
 No, Sir ; there was nothing to be made out of it 
 in these cases ; when yovi send a poor pauper 
 back to Ireland, there is no chance to make polit 
 ical capital out of that infraction of personal 
 liberty. Sir, I do not rise to defend the pro 
 visions of that law at all ; but my difficulty is to 
 know how men can sit here quietly and say that 
 that law is not only a violation of humanity and 
 human rights, but of the Constitution of this 
 Commonwealth, and the Constitution of the 
 United States, when we have just such provisions 
 on our own statute book, and nobody is ready to 
 raise a finger to wipe them off. 
 
 The gentleman from Lowell suggested that this 
 matter would be likely to excite a prejudice 
 against the legal profession. I never make that 
 objection, because in such a case we make more 
 out of it than anybody else. The more prejudice 
 there is the more noise is made about it, the 
 more grist it brings to that mill. Now, every 
 lawyer may make a constitutional argument to 
 every jury upon any liquor case that comes along, 
 and some of them have a legion of them in 
 the hope that he might convince some one jury 
 that the law was unconstitutional, and thus, per 
 haps, get his case. I think that is a question which 
 we are not to consider at all in the discussion of a 
 constitutional provision ; but when it is put to 
 our side of the House that the arguments which 
 are made by gentlemen here, whose characters are 
 altogether above suspicion, are influenced by any 
 such considerations as that, I say it is only proper 
 to turn round and say that it opens the door to a 
 new field, in which the gentleman for Wilbra- 
 ham has already appeared so conspicuously, and 
 where the gentleman from Lowell is no very dis 
 tant follower. The very question that it is pro 
 posed to introduce here the argument of the law 
 to the jury is a field in which I believe, nobody 
 has reaped except the gentleman for Wilbraham 
 and the gentleman from Lowell ; and having 
 found it a little difficult, heretofore, to cultivate 
 that field, they now propose to make it easier. 
 Now, Sir, if we can adopt the principle in some 
 
 such mode as to relieve me from the difficulties 
 which I find in the way, and which I have sug 
 gested, and which nobody has ansAvered, I am 
 ready to go for it ; but until these difficulties can 
 be answered or obviated, I am not ready for 
 it. 
 
 Mr. GRAY, of Boston. Having been on the 
 Committee, I hope the Convention will indulge 
 me in a few remarks, and I shall do my best to 
 fall much within the time allowed. I admit, 
 with the gentleman from Salem, that the boun 
 dary between the respective rights of courts and 
 of juries, is a somewhat undefined and shadowy 
 one. It is so, both in criminal and in civil cases. 
 I will put an instance. Suppose the question 
 arises, whether a man clevises a lot of land to me 
 or not that is a question of fact for the jxiry to 
 decide. I understand the statute to read, that 
 every will should have three witnesses, and every 
 judge would tell the jury so ; but now the ques 
 tion arises, is the jury to decide on that point in 
 rendering their verdict ? How can you define 
 their province in such a case ? Or, take the crim 
 inal law ; how can you define their province 
 there ? The gentleman for Wilbraham has read 
 several extracts, to show that the court has agreed 
 in his position ; but I think there is a slight mis 
 take there, and it grows out of this fact. When 
 ever the jury give a general verdict of guilty or 
 not guilty, there is no power or right to revise 
 that verdict. No man disputes that the verdict 
 cannot be revised. Where, then, is the power to 
 be derived ? Who is to draw the line between 
 the province of the judge and the province of 
 the jury, in general cases ? The jury ; because 
 they have power to give a general verdict. What 
 is to decide where the line ought to be drawn ? 
 The jury again, on their conscience. They are 
 bound, on their conscience, as I understand it, to 
 take the law from the instruction of the court, 
 and to take its exposition of law as law. Sup 
 pose they refuse to do so. Suppose they consider 
 that a case has arisen, one of those extraordinary 
 cases laid down by all writers on law, in which a 
 subject may judge for himself, not from law, but 
 from the principles of moral right and wrong ; 
 who shall say whether they judge right or not ? 
 There is 110 power to revise their decision, for 
 their tribunal is a sacred one their judge sits at 
 their own heart. Now, Sir, I admit what my 
 friend from Salem seems to intimate, that this is 
 not a desirable state of things. It might be bet 
 ter that we should lay down some tangible and 
 visible boundaries, which will render it plain 
 what the province of the judge is, and what the 
 province of the jury is ? But, Sir, can we do it ? 
 Admitting this to be an evil, and no one, I pre- 
 
462 
 
 BILL OF EIGHTS. 
 
 [68th day. 
 
 Wednesday, 
 
 GRAY. 
 
 [July 27th. 
 
 surae, will deny that, does this proposition remedy 
 it ? There is one objection that weighs on my 
 mind, to which I believe no gentleman has ad 
 verted ; and that is, that I do not wish to dimin 
 ish the responsibility of the judges. Now, Sir, 
 the judges in important criminal cases, are bound 
 to lay down the criminal law. If a man loses his 
 life or his liberty, if even a stigma falls upon him, 
 the judge must bear the responsibility to the 
 community. He cannot say : " I told the jury 
 what I thought the law was, and it assumed the 
 responsibility ; if an outrage has been committed 
 on the community, lay the blame 011 the jury, but 
 do not charge me with it." It is, as the gentle 
 man from Lowell very truly said : the judges are 
 but men ; and the moment you lessen their respon 
 sibility, you take away from them a motive to 
 exercise their power thoroughly and faithfully, 
 which is, in many cases, a delicate and difficult 
 thing, and sometimes renders him obnoxious 
 even. Let gentlemen read the trial and convic 
 tion which resulted in what may be the last exe 
 cution to take place in Massachusetts. Let them 
 look at the position which the court held, and let 
 them say whether there are many judges who 
 would have laid down the law so fully and clearly 
 as that chief justice did. I believe he would do 
 the same again ; but can you rely upon every 
 judge to take such a painful and obnoxious posi 
 tion, and one which, in the eyes of a public sen 
 timent and of the public press, as well as of a 
 great many people, was a most odious position ? 
 The position taken by the court then, was most 
 odious ; for the time being, I mean. I cannot 
 vote to diminish that responsibility ; and, farther, 
 I cannot vote to enjoin on the jury to decide as 
 to the law, and to take the responsibility for so 
 doing. I cannot agree to put it in the power of 
 juries to say : " Here are our learned judges they 
 have told us what the law is we would be 
 thankful to rest, in some measure, upon their 
 suggestions, but we are not allowed to do so, and 
 the people hold us responsible." All this might 
 be very well, and might operate in a proper man 
 ner, if we were sure that juries would always 
 want to acquit, and that they would never be 
 tempted and biassed to convict wrongfully. 
 
 Gentlemen talk about trusting the people. 
 Now, Sir, the people of California are a brave 
 and a free people ; but, Sir, have we not reason 
 to think that juries in that community would be 
 tempted to bring a man in guilty in certain cases, 
 where the strict interpretation of law would 
 acquit him ? Is there no such thing as popular 
 violence? The juries and judges in the witch 
 cases, were referred to by my friend for Wilbra- 
 ham ; but it was not the court that was to blame, 
 
 it was a vitiated public sentiment ; it was the 
 power of the clergy, then too great ; but I think 
 that has been remedied and more than remedied 
 since. It was this current of public feeling that 
 murdered those poor creatures. Why, Sir, when 
 the first jury brought in the first verdict of not 
 guilty, a cry went through the court-house ; the 
 whole community, with one voice, were most 
 earnest for blood, and blood they had. The very 
 first impulse of popular feeling that then existed, 
 for the acquittal of these persons, was followed 
 by the verdict of this jury in their favor. But 
 these Constitutions and laws are to protect a per 
 son from popular fury ; these guards are thrown 
 around him, so that, when he is accused, he may 
 be tried before twelve men good and true ; and, if 
 they unlock his prison door, the voice of thou 
 sands of people can do nothing to gainsay it. Is 
 there nothing for the court to do, in criminal 
 cases ? Gentlemen speak of the common law as 
 though it was perfectly easy for any man of com 
 mon sense to understand all about it, without 
 any study ; but, does not every gentleman who 
 has studied the common law as much as I have 
 and I have studied it considerable know that 
 the common law is not always common sense ? 
 There is a great deal that a man would not know, 
 unless he studies the statute. In the case of crim 
 inal law, who knows exactly what murder is ? I 
 do not nobody knows. It seems a very simple 
 question. If a person lies in wait for a man and 
 assassinates him, you and I know, and every man 
 knows, that is murder ; but who can tell, unless 
 he has examined the statute, whether the firing 
 of a gun carelessly, by a drunken man, in a crowd, 
 is murder, or something else ? 
 
 Sir, there are nice distinctions in the criminal 
 law not so much as in the civil law and the 
 jury may decide them. Now where is the evil ? 
 Where are the men unjustly convicted ? I do 
 not say that there are no evils, but I ask how 
 has the administration of criminal justice been ? 
 Why, Sir, it is most merciful. If the jury judge 
 of the law, and judge of it in a way that makes 
 against the prisoner, the court has now a power 
 which I fear this resolve would take away. If a 
 jury are in favor of a prisoner, their verdict can 
 not be revised ; and why ? Not on any general 
 principle involved here, or that the jurors are sole 
 judges of the law. No, Sir ; I think you give 
 the scales a cast on a general principle in favor of 
 life and liberty that every chance short of en 
 dangering the welfare of the community, shall 
 operate in favor of the prisoner. Therefore, 
 while I admit that the boundary is not so well 
 defined as it might be; while I admit that it 
 seems, and perhaps is rather a perplexing doctrine 
 
68th day.] 
 
 BILL OF RIGHTS. 
 
 463 
 
 Wednesday,] 
 
 "WALKER HUNTINGTON GARDNER WILSON YEAS. 
 
 [July 27th. 
 
 to say that a jury may bring in a verdict of guilty 
 or not guilty, and nobody impeach them, on the 
 whole matter, and yet that they are bound to 
 take the law from the court ; in other words, to 
 say that they must take the law from the court 
 and then decide against that law, seems to create 
 a confusion of boundaries between the province of 
 the courts and the province of juries, not only, I 
 think, in criminal, but also in civil cases. But I 
 fear that if we debate this resolve much longer, 
 we shall make the remedy worse than the dis 
 ease. 
 
 Mr. WALKER, of North BrookEeld. I rise 
 to move the previous question. 
 
 Mr. HUNTINGTON, of Northampton. I 
 wish the gentleman from North Brookfield would 
 withdraw his motion. I have an amendment to 
 offer, which the friends of this proposition do not 
 object to. I think my amendment will obviate 
 many objections that have been made to this 
 proposition. 
 
 Mr. WALKER. Will the gentleman renew 
 the motion for the previous question when he 
 offers his amendment ? 
 
 Mr. HUNTINGTON. It is a thing that I 
 never did, and I am not disposed to do it now. 
 
 Mr. WALKER. Then I am sorry to say that 
 I cannot withdraw the motion. 
 
 The question was then taken on the motion for 
 the previous question, arid a division being de 
 manded, there were ayes, 159 ; noes, 75. 
 
 So the main question was ordered. 
 
 Mr. GARDNER, of Seekonk, moved that when 
 the main question be taken, it be taken by yeas 
 and nays. 
 
 The yeas and nays were ordered, the question 
 being on the second reading of the resolve. 
 
 Mr. WILSON, of Natick, moved a reconsider 
 ation of the vote by which the yeas and nays were 
 ordered. 
 
 The motion to reconsider was agreed to, and 
 the question then recurring on the order for the 
 yeas and nays on the main question, the yeas and 
 nays were ordered. 
 
 The question on ordering the resolve to a sec 
 ond reading, was then taken, with the following 
 result yeas, 192 ; nays, 145 : 
 
 Abbott, Josiah G. 
 Adams, Shubael P. 
 Allen, Charles 
 Allen, James B. 
 Alley, John B. 
 Allis, Josiah 
 Alvord, D. W. 
 Austin, George 
 Baker, Hillel 
 Bancroft, Alpheus 
 
 Barrett, Marcus 
 Bates, Eliakim A. 
 Bates, Moses, Jr. 
 Beal, John 
 Bennett, Zephaniah 
 Bigelow, Edward B. 
 Bird, Francis W. 
 Boutwell, Geo. S. 
 Boutwell, Sewell 
 Breed, Hiram N. 
 
 Bronson, Asa Howard, Martin 
 
 Brown, Adolphus F. Hoyt, Henry K. 
 
 Brown, Alpheus R. Hunt, Charles E. 
 
 Brown, Hammond Hurlbut, Moses C. 
 
 Brown, Hiram C. Hyde, Benjamin D. 
 
 Browiiell, Joseph Ide, Abijah M., Jr. 
 
 Bryant, Patrick Jacobs, John 
 
 Burlingame, Anson Keyes, Edward L. 
 
 Caruthers, William Kimball, Joseph 
 
 Case, Isaac Kingman, Joseph 
 
 Chapin, Chester W. Knight, Hiram 
 
 Chap in, Daniel E. Knight, Jefferson 
 
 Chapin, Henry Knowlton, J. S. C. 
 
 Churchill, J. McKeaii Knowlton, William H. 
 
 ("lark, Henry Knox, Albert 
 
 Clark, Ransom x Ladd, Gardner P. 
 
 Clark, Salah Langdon, Wilber C. 
 
 Cleverly, William Lawrence, Luther 
 
 Cole, Sunnier Leland, Alden 
 
 Crane, George B. Loomis, E. Justin 
 
 Cross, Joseph W. Marble, William P. 
 
 Cushman, Thomas Marcy, Laban 
 
 Cutler, Simeon N. Marvin, Abijah P. 
 
 Davis, Charles G. Mason, Charles 
 
 Davis, Isaac Merritt, Simeon 
 
 Day, Gilman Monroe, James L. 
 
 Dean, Silas Moore, James M. 
 
 Denton, Augustus Morss, Joseph B. 
 
 Duncan, Samuel Morton, Elbridge G. 
 
 Dunham, Bradish Morton, Marcus, Jr. 
 
 Durgin, John M. Morton, William S. 
 
 Eaiie, John M. Nash, Hiram 
 
 Easland, Peter Newman, Charles 
 
 Edwards, Elisha Nichols, William 
 
 Ely, Joseph M. Nute, Andrew T. 
 
 Fellows, James K. Ober, Joseph E. 
 
 Fisk, Lyman Orne, Benjamin S. 
 
 Fiske, Emery Osgood, Charles 
 
 Foster, Abram Packer, E. Wing 
 
 Freeman, James M. Paine,- Benjamin 
 
 French, Charles A. Paine, Henry 
 
 French, Rodney Parris, Jonathan 
 
 French, Samuel Partridge, John 
 Frothingham, Rich d, Jr.Peabody, Nathaniel 
 
 Gardner, Johnson Pease, Jeremiah, Jr. 
 
 Gates, Elbridge Penniman, John 
 
 Gilbert, Washington Perkins, Daniel A. 
 
 Giles, Charles G. Perkins, Jesse 
 
 Gooch, Daniel W. Perkins, Noah C. 
 
 Gooding, Leonard Phelps, Charles 
 
 Graves, John W. Phimiey, Silvanus B. 
 
 Griswold, Josiah W. Pierce, Henry 
 
 Griswold, Whiting Pool, James M. 
 
 Hadley, Samuel P. Rantoul, Robert 
 
 Hallett, B. F. Rawson, Silas 
 
 Hapgood, Lyman W. Richards, Luther 
 
 Hapgood, Seth Richardson, Darnel 
 
 Haskins, William Richardson, Nathan 
 
 Hawkes, Stephen E. Richardson, Samuel H. 
 
 Hayden, Isaac Ring, Elkanah, Jr. 
 
 Hazewell, Charles C. Rogers, John 
 
 Heath, Ezra, 2d, Ross, David S. 
 
 Hewes, James Sanderson, Chester 
 
 Hewes, William H. Sherril, John 
 
 Hobart, Henry Simmons, Perez 
 
 Holder, Nathaniel Simonds, John W. 
 
 Hood, George Sprague, Melzar 
 
 Hooper, Foster Spooner, Samuel W. 
 
464 
 
 BILL OF RIGHTS. 
 
 [68th day. 
 
 Wednesday,] 
 
 NAYS ABSENT. 
 
 [July 27th. 
 
 Stacy, Eben H. 
 
 Wales, Bradford L. 
 
 Knight, Joseph 
 
 Sargent, John 
 
 Stevens, Joseph L., Jr. 
 
 Wallis, Freeland 
 
 Kuhn, George, H. 
 
 Schouler, William 
 
 Stevens, William 
 
 Walker, Amasa 
 
 Ladd, John S. 
 
 Sikes, Chester 
 
 Stiles, Gideon 
 
 Ward, Andrew H. 
 
 Lawton, Job G., Jr. 
 
 Sleeper, John S. 
 
 Strong, Alfred L. 
 
 Warner, Samuel, Jr. 
 
 Lincoln, Abishai 
 
 Smith, Matthew 
 
 Sumner, Charles 
 
 Y/aters, Asa H. 
 
 Lincoln, Frederic W., Jr. Souther, John 
 
 Swain, Alanson 
 
 Weston, Gershom B. 
 
 Livermore, Isaac 
 
 Stetson, Caleb 
 
 Taber, Isaac C. 
 
 Whitney, Daniel S. 
 
 Lord, Otis P. 
 
 Stevens, Charles G. 
 
 Taft, Arnold 
 
 Whitney, James S. 
 
 Lothrop, Samuel K. 
 
 Stevens, Graiiville 
 
 Thayer, Joseph 
 
 Wilbur, Daniel 
 
 Loud, Samuel P. 
 
 Sumner, Increase 
 
 Thayer, Willard, 2d 
 
 Williams, Henry 
 
 Miller, Seth, Jr. 
 
 Tileston, Edmund P. 
 
 Thomas, John W. 
 
 Wilson, Henry 
 
 Mixter, Samuel 
 
 Train, Charles R, 
 
 Thompson, Charles 
 
 Wilson, Willard 
 
 Morey, George 
 
 Turner, David 
 
 Tilton, Abraham 
 
 Winslovr, Levi M. 
 
 Nayson, Jonathan 
 
 Upton, George B. 
 
 Tiltoii, Horatio W. 
 
 Wood, Charles C. 
 
 Noyes, Daniel 
 
 Walcott, Samuel B. 
 
 Underwood, Orison 
 
 Wood, Otis 
 
 Oliver, Henry K. 
 
 Walker, Samuel 
 
 Viles, Joel 
 
 Wood, William H. 
 
 Orcutt, Nathan 
 
 Weeks, Cyrus 
 
 Yinton, George A. 
 
 Wright, Ezekiel 
 
 Park, John G. 
 
 Wheeler, William F. 
 
 
 
 Parker, Adolphus G. 
 
 White, Benjamin 
 
 NAYS. 
 
 Parker, Joel 
 
 Wilder, Joel 
 
 Abbott, Alfred A. 
 Adams, Benjamin P. 
 Aldrich, P. Emory 
 Allen, Joel C. 
 Andrews, Robert 
 Aspinwall, William 
 
 Doane, James C. 
 Dorman, Moses 
 Eames, Philip 
 Eaton, Lilley 
 Edwards, Samuel 
 Ely, Homer 
 
 Perkins, Jonathan C. 
 Plunkett, William C. 
 Pomroy, Jeremiah 
 Read, James 
 Reed, Sampson 
 Sampson, George R. 
 
 Wilkins, John H. 
 Williams, J. B. 
 Wilson, Milo 
 Whin, Jonathan B. 
 Woods, Josiah B. 
 
 Atwood, David C. 
 
 Farwell, A. G. 
 
 
 Ayres, Samuel 
 
 Fay, Sullivan 
 
 ABSENT* 
 
 Barrows, Joseph 
 
 Foster, Aaron 
 
 Allen, Parsons 
 
 Knowlton, Charles L. 
 
 Bartlett, Russel 
 
 Fowle, Samuel 
 
 Appleton, William 
 
 Little, Otis 
 
 Bartlett, Sidney 
 
 Fowler, Samuel P. 
 
 Ballard, Alvah 
 
 Littlcfield, Tristram 
 
 Bennett, William, Jr. 
 
 French, Charles H. 
 
 Ball, George S. 
 
 Lowell, John A. 
 
 Bigelow, Jacob 
 
 Gale, Luther 
 
 Banks, Nathaniel P., Jr. 
 
 Marvin, Theophilus R. 
 
 Bell, Luther Y. 
 
 Gardner, Henry J. 
 
 Beach, Erasmus D. 
 
 Meader, Reuben 
 
 Bliss, Gad O. 
 
 Giles, Joel 
 
 Beebe, James M. 
 
 Morton, Marcus 
 
 Booth, William S. 
 
 Goxild, Robert 
 
 Bishop, Henry W. 
 
 Norton, Alfred 
 
 Bradbury, Ebenezer 
 
 Goulding, Dalton 
 
 Blagclen, George W. 
 
 Paige, James W. 
 
 Bradford, William J. A 
 
 Goulding, Jason 
 
 Bliss, Willam C. 
 
 Parker, Samuel D. 
 
 Braman, Milton P. 
 
 Gray, John C. 
 
 Browiiell, Frederick 
 
 Parsons, Samuel C. 
 
 Brewster, Osmyn 
 
 Green, Jabez 
 
 Bullen, Amos H. 
 
 Parsons, Thomas A. 
 
 Briiiley, Francis 
 
 Hale, Artemas 
 
 Bumpus, Cephas C. 
 
 Payson, Thomas E. 
 
 Briggs, George N. 
 
 Hale, Nathan 
 
 Butler, Benjamin F. 
 
 Peabody, George 
 
 Brown, Artemas 
 
 Hammond, A. B. 
 
 Cady, Henry 
 
 Powers, Peter 
 
 Buck, Asahel 
 
 Harmon, Phineas 
 
 Choate, Rufus 
 
 Preston, Jonathan 
 
 Bullock, Rufus 
 
 Haskell, George 
 
 Clarke, Alpheus B. 
 
 Prince, F. O. 
 
 Carter, Timothy W. 
 
 Heard, Charles 
 
 Cressy, Oliver S. 
 
 Putnam, George 
 
 Chandler, Amariah 
 
 Henry, Samuel 
 
 Cummings, Joseph 
 
 Putnam, John A. 
 
 Childs, Josiah 
 
 Horsey, Henry 
 
 Cushman, Henry W. 
 
 Rice, David 
 
 Clarke, Stillman 
 
 Hillard, George S. 
 
 Davis, Ebenezer 
 
 Rockwell, Julius 
 
 Coggin, Jacob 
 
 Hinsdale, William 
 
 Davis, John 
 
 Rock wood, Joseph M. 
 
 Cogswell, Nathaniel 
 
 Hobart, Aaron 
 
 Davis, Robert T. 
 
 Royce, James C. 
 
 Cole, Lansing J. 
 
 Houghton, Samuel 
 
 Dehon, William 
 
 Sanderson, Amasa 
 
 Conkey, Ithamar 
 
 Howland, Abraham H. 
 
 DeWitt, Alexander 
 
 Sheldon, Luther 
 
 Cook, Charles E. 
 
 Hubbard, William J. 
 
 Easton, James, 2d 
 
 Sherman, Charles 
 
 Cooledge, Henry F. 
 
 Hunt, William 
 
 Eaton, Calvin D. 
 
 Stevenson, J. Thomas 
 
 Copeland, Benjamin F. 
 
 Huntington, Asahel 
 
 Eustis, William T. 
 
 Storrow, Charles S. 
 
 Crittenden, Simeon 
 
 Huntington, Charles P. 
 
 Fitch, Ezekiel W. 
 
 Stutson, William 
 
 Crockett, George W. 
 
 Huntington, George H. 
 
 Gilbert, Wanton C. 
 
 Talbot, Thomas 
 
 Crosby, Leander 
 
 Hurlburt, Samuel A. 
 
 Greene, William B. 
 
 Taylor, Ralph 
 
 Crowell, Seth 
 
 Jackson, Samuel 
 
 Greenleaf, Simon 
 
 Tower, Ephraim 
 
 Crowninshield, F.B. 
 
 James, William 
 
 Hall, Charles B. 
 
 Turner, David P. 
 
 Curtis, Wilber 
 
 Jenkins, John 
 
 Hathaway, Elnathan P. 
 
 Tyler, John S. 
 
 Dana, Richard H., Jr. 
 
 Jenks, Samuel H. 
 
 Hayward, George 
 
 Tyler, William 
 
 Davis, Solomon 
 
 Johnson, John 
 
 Heywood, Levi 
 
 Upham, Charles W. 
 
 Dawes, Henry L. 
 
 Kellogg, Giles C. 
 
 Hobbs, Edwin 
 
 Wallace, Frederick T. 
 
 Deming, Elijah S. 
 
 Kendall, Isaac 
 
 Hopkinson, Thomas 
 
 Warner, Marshal 
 
 Denison, Hiram S. 
 
 Kinsman, Henry W. 
 
 Kellogg, Martin R. 
 
 Wetmore, Thomas 
 
68th day.] 
 
 RAILROAD ACCIDENTS, &c. 
 
 465 
 
 Wednesday,] 
 
 EARLE MORTON PARKER HILLARD HALLETT. 
 
 [July 27th. 
 
 White, George 
 Wilbur, Joseph 
 
 Wilkinson, Ezra 
 Wood, Nathaniel 
 
 Absent and not voting, 82. 
 
 Mr. EARLE, of Worcester, moved that the 
 name of Marcus Morton be erased from the roll, 
 that gentleman not being present when his name 
 was called. He was in one of the committee 
 rooms. 
 
 Mr. ASPINWALL, of Brookline. When the 
 name of Mr. Morton was called, I heard a certain 
 response. It was not exactly a negative, but 
 seemed exceedingly like it. 
 
 Mr. FREEMAN, of Franklin. I believe I was 
 the first who called attention to the fact of the 
 gentleman s absence from the Convention when 
 his name was called. He was in the room of the 
 Judiciary Committee when his name was called. 
 
 Mr. MORTON. If there is any question as to 
 my vote, I desire to say that I was not present 
 when my name was called. I was in the Jiidi- 
 ciary Committee room. If it is not too late, I 
 will vote. 
 
 Mr. EARLE, of Worcester. I move that the 
 response be erased. 
 
 The PRESIDENT. The response will be 
 erased, so as to correspond to the fact. The re 
 solve is ordered to its second reading, and will 
 take its second reading to-morrow. 
 
 Sectarian Schools. 
 
 Mr. PARKER, of Cambridge. There is lying 
 on the table a resolve on the subject of schools. 
 This is a very important subject one in which I 
 have taken some interest, and I desire that it may 
 be taken up at this time, so that it may be dis 
 posed of. 
 
 The PRESIDENT. The motion of the gentle 
 man from Cambridge is not in order, the Orders 
 of the Day being under consideration. 
 
 Mr. PARKER. Then I move that the Orders 
 of the Day be laid upon the table for the purpose 
 of taking up this subject. 
 
 The motion was not agreed to. 
 
 Railroad Accidents, 
 
 The Convention next proceeded to the consid 
 eration of the resolve on the subject of legal rem 
 edies to the representatives of persons killed by 
 the negligence or misconduct of railroad corpora 
 tions, as follows : 
 
 Resolved, That where death is caused through 
 negligence or misconduct, by means of railroads, 
 steam- boats, or public conveyances for hire, the 
 same remedies shall be open in a suit at law, as 
 for like injuries to the person resulting in disabil 
 ity and not in death. 
 
 32 s 
 
 The question being on its second reading, 
 
 Mr. HILLARD, of Boston. I rise to ask the 
 gentleman who is chairman of the Committee which 
 reported this resolve, to state some of the reasons 
 why a provision of this kind should be placed in 
 the Constitution at all, any more than a provision 
 as to drawbridges, or the guages of roads ? I 
 should like to know on what principle this is 
 to be taken from the statute law and placed in the 
 Constitution ? 
 
 Mr. HALLETT. In reply to the question of 
 the gentleman from Boston, I will state, that 
 this subject was referred by the Convention to a 
 Special Committee, who instructed me to report 
 this provision. The gentleman desires me to give 
 some reasons why it should be put into the Con 
 stitution. Sir, I shall not go into any elaborate 
 reasons ; but when that gentleman compares a 
 subject of this magnitude with the gviages of rail 
 roads and drawbridges, and matters of that sort, 
 he could not have had his mind upon the appall 
 ing fact, that since this Convention met, in the 
 month of May, the deaths caused by railroad and 
 steam-boat accidents, as reported to us in the 
 newspapers, amount to two hundred and twenty- 
 two ! Now, if there is any principle that should 
 have prominence in a fundamental law, it is that 
 the government should protect the lives as well 
 as the property of citizens ; and they should 
 protect those lives by throwing around them all 
 possible security. Your Bill of Rights says, that 
 every person shall have a remedy in your courts 
 of law for all injuries sustained by the hands of 
 others. Now, while this wholesale slaughter is 
 going on, and every man s life is in danger every 
 time he passes to and fro upon these lines of travel, 
 is it worth while to put a declaration into the 
 Constitution that shall seem to say, " This work 
 of death must stop ? Every evening, when I see 
 my friends go out of this hall, to pass along the 
 varioxis railroads to their homes, I look upon 
 them as if I were beholding them for the last time, 
 unless I should see them as mangled corpses ; and 
 when I see them next morning, safe and sound, I 
 feel as if I could congratulate them as much as if 
 they had escaped unharmed from a field of battle. 
 
 Sir, in the insurance of men s lives, it has now 
 become an important question, as to whether their 
 business requires them to travel much on railroads 
 or steam-boats. 
 
 And why should this be put into the Con 
 stitution ? I suppose, Sir, for this reason : that 
 the courts of law in Massachusetts have decided 
 that, by the common law, if a man is injured on 
 a railroad by having an arm or leg broken, he is 
 entitled to a remedy ; but, that if he is killed, no 
 damage is done whatever. That is the rule of 
 
46G 
 
 RAILROAD ACCIDENTS. 
 
 [68th day. 
 
 Wednesday,] 
 
 HALLETT CADY. 
 
 [July 27th. 
 
 law. The supreme court are called upon to con 
 strue all your laws. I am aware that there is a 
 law providing a penalty of four or five thousand 
 dollars for each passenger killed, and which is 
 recoverable by indictment. That is a penalty in 
 the nature of a punishment for an offence ; but 
 when you come to your civil suits, and produce 
 your Bill of Itights, which says that every person 
 is entitled to a remedy for injuries received, what 
 is the principle? If a man is maimed, and he 
 goes before a jury, that jury determines what the 
 injury is, and award him damages accordingly. 
 But if a man, on whose labor a wife and children 
 depend for support, is killed at a blow, and his 
 heir or administrator apply for damages, he is 
 told by your courts that there was no injury, be 
 cause he was killed outright, and all the damages 
 that can be recovered would be for the suffering 
 he endured, if you can prove it, for the few min 
 utes which intervened between the time he re 
 ceived the blow and the time he ceased to breathe. 
 
 Gentlemen tell us that we may go to the legis 
 lature for the proper remedies. So you might, if 
 your legislature was not, in great part, composed 
 of men who are either directors or stockholders in 
 most of these companies ; but, if I judge rightly, 
 this is a matter which is worthy of being put into 
 your Constitution, that this great moloch may be 
 properly restrained. Sir, it is shown by statistical 
 returns, that more persons have been killed in the 
 State of New York on railroads, in one year, than 
 were killed on all the railroads in England in the 
 same time ; and, after having created these corpo 
 rations, and invested them with this power, is it 
 not worth while to put into the Constitution a 
 principle that will protect the community against 
 them ? Your penalty for an offence is one thing, 
 but your remedy for an injury received is another. 
 That is what I wish to provide for. I have no 
 feeling in regard to the matter, except a feeling of 
 humanity and right. 
 
 I am in favor of this proposition, considering 
 that when your Bill of Rights declares that there 
 shall be a remedy for all injuries, that remedy 
 should provide for the injuries s\istained by women 
 and children who may lose their husbands and 
 fathers, and, in that loss, their means of livelihood. 
 In recent cases tried by the supreme court, the 
 question was, whether a party who was killed 
 lived long enough to maintain a suit. If he did 
 not, no remedy could be had, and especially where 
 death was instantaneous. The court would not 
 allow such cases to go to the jury. They took it 
 away from the jury, on the ground that there was 
 no surviving injury on which an administrator 
 could take action. 
 
 Sir, I think that great danger may arise from 
 
 this new element we have introduced into the 
 business of life, unless it is guarded by proper re 
 strictions. I think that when you incorporate a 
 provision like this into your Constitution, you 
 hold up, as it were, a beacon light to guard and 
 protect human life ; the attention of all parties 
 will be called to it ; and the result will be in re 
 newed vigilance, and care, and caution, and the 
 saving of human lives, and the preventing of that 
 desolation of hearths and hearts which, in our re 
 cent experience, has been so fearfully extended. 
 By this you will do as much real good, as by any 
 other provision in your Constitution. 
 
 Mr. CADY, of Monson. It is quite immaterial 
 with me, in what way, and by what means, this 
 protection shall be afforded whether by the or 
 ganic law, the statute law, or by the common law. 
 But that no protection in cases now before the 
 Convention, is afforded, is true ; but that is not all 
 in relation to it. I hold that the eleventh article 
 of the Bill of Rights, in the present Constitution, 
 which contains this same principle, has not af 
 forded any protection, either in this or other cases. 
 I see no reason why, except that this article has 
 never been heeded by the legislature, and they 
 have never given that attention to it which is ne 
 cessary to make it valid and effectual. And I see 
 110 reason why this resolution should be put in 
 here, if 110 more attention is to be paid to it here 
 after by the legislature, than has been paid to it 
 heretofore ; and if they should not, I would as 
 lief see this provision struck out of the Constitu 
 tion entirely. I can see no value in retaining an 
 article in the Constitution, which has no effect, 
 and is practically invalid. The present article 
 says : " Every subject of the Commonwealth ought 
 to find a certain remedy, by having a recourse to 
 the laws for all injuries or wrongs which he may 
 receive in his person, property, or character." I 
 claim that 110 person has ever had a remedy for an 
 injury which has caused death, as he had for 
 wrongs to character or property. The article 
 farther says : " He ought to obtain right and jus 
 tice freely, and without being obliged to purchase 
 it ; completely and without any denial ; promptly 
 and without delay ; conformably to the laws." 
 
 Well, Sir, there are no laws except this very 
 one, and this, so far as it may be construed as a 
 law, might be considered as applying to all cases. 
 But I suppose it is not to be considered as a law, 
 but only as a principle upon which a law can be 
 founded. Now, Sir, I contend that no person 
 has ever had the benefit of the provision here 
 made, or intended to be made, by this article of 
 the Bill of Rights. A man can injure and wrong 
 his fellow- citizen, and there is no remedy against 
 him which can be applied. I can bring an action 
 
68th day.] 
 
 RAILROAD ACCIDENTS. 
 
 467 
 
 Wednesday,] 
 
 CADY DAVIS. 
 
 [July 27th. 
 
 against any man, or a rich man may bring an ac 
 tion against a poor man unable to defend his case, 
 and there is nothing in the statute which prevents 
 it. He makes him just as much expense, and as 
 great a loss of time as he chooses and may cause 
 delays for these actions are not without delay 
 and just as much delay as the individual who is 
 the oppressor, sees fit to make. In these cases of 
 unjust prosecutions, where an innocent man has 
 been seized by the arm of the law, and has been 
 obliged to spend his time and money for his coun 
 sel and other things, although he may at length 
 become released and establish his innocence, where 
 is he ? Being a poor man, he has expended all 
 the means he has in his power to obtain, to pay 
 his attorney and lawyer for his defence, and has 
 spent his time, and what is the result ? He has 
 beggared his family, his children are naked, and 
 his wife is in distressed circumstances. 
 
 Now, Sir, as I said before, I care not where the 
 law comes from which affords this protection. If 
 a provision of our Constitution cannot be made 
 valid to afford this protection, I say I am in favor 
 of striking it out. This provision is here in the 
 Constitution for something, and the legislature 
 heretofore have neglected to pay that attention to 
 it which it really deserves. Now, I think that it is 
 of vital importance to have such an article in the 
 Constitution, but I thirk it is of much more im 
 portance that the article should be heeded. This 
 neglect was not because it was an oversight. The 
 legislature looked upon this article, and knew that 
 it was there. They knew practically what had 
 been done by previous legislatures. Still, from 
 year to year, and year after year, a perfect neg 
 lect has been indulged in by legislative bodies, 
 and they have neglected to afford that protection 
 which this article in the Bill of Rights was in 
 tended to afford. There may be such a thing as 
 an oversight, but this has not been one. When 
 the mother of Achilles plunged her son into the 
 river Styx, to render him invulnerable, there was 
 an oversight on her part, because she forgot that 
 the heel failed to be laved by the prophylactic 
 waters. But not so in this case. The legislature 
 have had their attention directed to this matter, 
 but they have gone on, year after year, neglecting 
 it, and we have no more protection than when it 
 was first put into the Constitution in 1789. 
 
 Now, Sir, I am in favor of a resolution like the 
 one offered by the gentleman for Wilbraham, 
 (Mr. Hallett,) if it can be made effectual in any 
 way. I am in favor of incorporating something 
 like this into the Constitution. 
 
 Mr. DAVIS, of Plymouth. Owing to the la 
 mentable circumstances to which the gentleman 
 has alluded, I have hesitated to propose the motion 
 
 I which I shall offer before I sit down, until I could 
 hear the gentleman for Wilbraham, (Mr. Hallett,) 
 
 j explain the reasons for his amendment. It seems 
 
 I to me that no good reason can be assigned why a 
 
 j provision providing only a simple remedy for an 
 
 I evil, for injuries, for trespasses, &c., should be put 
 
 j into the Constitution ; and, especially, no good 
 
 i reason can be given why it should be put into the 
 
 ! Bill of Rights. If it were proposed to put into 
 
 i the Constitution a provision, that for all injuries 
 
 by tort, an action at law should lie, and that when 
 
 such tortious injury resulted in death the action 
 should survive, I could see some reason for the 
 principle, but certainly none for such a provision 
 as this. I understand that the liability, to some 
 extent, is now perfect by the act of the legislature. 
 | And I also understand him to admit that the 
 legislature have now full power to enact sufficient 
 laws with regard to all remedies affecting the per 
 son, whether they result in death or not. If that 
 be so, I see no reason why the provision should 
 be placed in the Constitution or in the Bill of 
 Rights. If gentlemen will look at this resolve as 
 reported, it seems to me they will find that it is 
 J too vague and indefinite. In point of fact, noth- 
 i ing can be made of it whatever, and I ask gen- 
 ! tlemen of the Convention, before they make up 
 j their minds upon this question, to read the pro- 
 I vision. It is this : " Where death is caused 
 through negligence or misconduct by means of 
 j railroads, steam-boats, or public conveyances for 
 hire, the same remedies shall be open in a suit 
 at law as for like injuries to the person resulting 
 in, disability and not in death." That is, " where 
 death is caused," "the same remedies shall be 
 open as for a like injury," namely, death " result 
 ing in disability arid not in death." Will gentle 
 men also ak themselves what that same remedy is 
 which shall be open at suits at law for injuries 
 resulting in disability and not in death. Does 
 the Committee mean that the like rule of damages 
 shall apply to injuries resulting in death, that ap 
 ply now to injuries which do not result in death ? 
 Or does the Committee mean to say a jury shall 
 be called upon, without any limit, to estimate, in 
 broad terms, the value of life ? What is the limit ? 
 It seems to me, that, if called upon as a juror, as 
 perhaps I may be, to consider that question, I 
 might say that the value of a man s life was a 
 million of dollars, and this constitutional provision 
 might require that of me ; or else for so I read 
 this resolve or else I should be called upon 
 merely to decide that the party entitled to some 
 remedy is entitled to the same remedy which he 
 would be entitled to for an injury resulting in 
 disability and not in death, no matter how small 
 the damage may be. It seems to me there is this 
 
468 
 
 BILL OF RIGHTS. 
 
 [68th day. 
 
 Wednesday,] 
 
 DANA HALLETT. 
 
 [July 27th. 
 
 inconsistency and this vagueness. I therefore 
 move that this resolution be laid upon the table. 
 
 The question was taken, and the motion was 
 agreed to. 
 
 So the resolve was laid upon the table. 
 
 Law Martial. 
 
 The PRESIDENT. The next matter in the 
 Orders of the Day is the resolve upon the subject 
 of the law martial. The question is to strike out 
 of the twenty-eighth article of the Bill of Rights 
 the words, " by authority of the legislature," so 
 hat it shall read : 
 
 No person can in any case be subjected to 
 laic martial, or to any penalties or pains by virtue 
 of that law, except those employed in the army 
 or navy, and except the militia in actual service. 
 
 The question is upon the final passage. 
 
 Mr. DANA, for Manchester. I wish to know 
 whether I can throw myself upon the indulgence 
 of this Convention, for a few minutes, upon this 
 subject. I will occupy but a few minutes, and 
 will state but two propositions. Last night, when 
 there was but just a quorum present, the resolve 
 introduced by the gentleman for Wilbraham, 
 (Mr. Hallett,) to deprive the legislature of the 
 power of enacting the law martial, was passed. 
 I think it was passed under a misapprehension. 
 I have conversed with a number of gentlemen 
 since last evening, and I have seen but one 
 person to whom the subject has been present 
 ed, who has not changed his mind. If the Con 
 vention will give me attention for a moment, I 
 will endeavor to satisfy them that the Constitu 
 tion, since 1780, has been right in this respect, 
 and that we had better let it alone. 
 
 The first question is, What is the law martial ? 
 and the second is, Who shall control it ? First, 
 what is the law martial ? It is supposed by many 
 that the law martial is just what a military man 
 chooses to do. That is not so. It is a code of 
 laws enacted by the legislature, and not what a 
 military man chooses to do. First, we have the 
 civil law, and, second, the law martial. They 
 are both enacted by the legislature, and they are 
 both controlled by the legislature. 
 
 Mr. HALLETT. Does the gentleman say 
 there is a martial law in Massachusetts ? 
 
 Mr. DANA. Certainly there is. 
 
 Mr. HALLETT. No, Sir ; there is a military 
 law. 
 
 Mr. DANA. The martial law of Massachu 
 setts is in the Revised Statutes, and under that 
 the courts martial are held. The law martial of 
 the United States is in the laws of the United 
 States, and under that the courts martial of the 
 
 United States are held ; and I think the gentle 
 man for Wilbraham, (Mr. Hallett,) himself, has 
 been a judge advocate of an United States court 
 martial. The legislature of the State can control 
 the law martial of the State; can alter it, and 
 make it just as humane as they please. It is a 
 system of laws executed by a military tribunal 
 instead of by a civil tribunal. Those tribunals 
 act according to law, by records, by proceeding 
 in writing, and can punish no man except accord 
 ing to law. They cannot do as they please. 
 
 We have the civil law to apply to ordinary 
 cases, but to whom does the martial law apply ? 
 It applies to military men, under arms. We try 
 a militia man now, under martial law. At what 
 other time does the military law apply ? It ap 
 plies when the civil law cannot apply ; when, in 
 times of insurrection and disturbance, you can 
 not control your jails, when you cannot control 
 your court-houses, when the sheriffs cannot sum 
 mon their juries, and courts cannot meet. When 
 the civil law cannot go on, then the martial law 
 is proclaimed. When the enemy is in possession 
 of your strong-holds, when the milder processes 
 of the civil law cannot go forward, then it is 
 martial law or nothing. Well, then, the martial 
 law is a law of the legislature, and which the 
 legislature controls. When that state of things 
 arises where the civil law cannot be put in force, 
 then the legislature puts in force the martial law. 
 
 Then there remains but one question who 
 shall put in force the martial law ? Shall it be 
 proclaimed by the legislature, or shall it be pro 
 claimed by any military man who chooses to do 
 it ? Our ancestors, in 1780, abundantly cautious 
 of liberty, provided that only the legislature should 
 proclaim the martial law. The gentleman for 
 Wilbraham means to leave it so that any military 
 commander that comes here, may proclaim the 
 military law. He eulogizes General Jackson for 
 putting New Orleans under military law. I 
 think General Jackson was right in doing that. 
 But I wish to know why, if it was right for Gen 
 eral Jackson to do that, it is not right in the leg 
 islature to do it ; why it is not better and safer in 
 the hands of the legislature. 
 
 If the legislature of Louisiana had put New 
 Orleans under martial law, it would have been 
 far better than to have General Jackson do 
 it. General Jackson had to assume the pow 
 er to do it, and I think he did right ; but if 
 the legislature had declared the city to be un 
 der martial law, it would have saved him an as 
 sumption of power, and General Jackson, as a 
 good citizen, would have rejoiced at it. 
 
 Now let us take a case nearer home. Suppose 
 you pass this provision, and Massachusetts is 
 
68th day.] 
 
 BILL OF RIGHTS. 
 
 469 
 
 Wednesday,] 
 
 DANA HALLETT. 
 
 [July 27th. 
 
 threatened to be invaded by an armed force. 
 Your civil law cannot be enforced. A military 
 commander comes and says, here are five thou 
 sand troops firing upon us. The people are in 
 arms ; there is no civil law that can be enforced ; 
 your wives and children cry to us for protection. 
 Your sheriff is not strong enough to protect them ; 
 juries cannot be impanelled ; courts cannot 
 sit ; and we must have a law. Well, Sir, what 
 do we do ? We say Massachusetts has provided 
 for this great emergency. We have a martial law. 
 Let military courts proceed where civil courts can 
 not. We therefore go to the legislature, and ask 
 them to proclaim martial law for that part of the 
 Commonwealth where civil law will not apply. 
 And what does the legislature say ? They say : 
 " We had the power to do what you ask us to do 
 up to 1853, when a Convention was held to re 
 vise the Constitution. It was composed of very 
 good, very wise and excellent men, but they 
 were under the impression that there ought not 
 to be martial law, and they have taken away the 
 power of proclaiming it." And then the legisla 
 ture of Massachusetts will go down upon its 
 knees to this military commander, and beg him 
 to enforce that martial law which they have not 
 the power to proclaim. They will surrender up 
 to this one man, despot though he may be, all the 
 power they possess, and allow him to exercise it 
 without the power of controlling him, because 
 this Convention has said that in no case shall the 
 legislature proclaim martial law. 
 
 Now the question is riot whether we shall have 
 martial law cr not, for that we shall have, if the 
 case should ever arise when it should be needed ; 
 but the question is, whether we shall allow a 
 military chieftain, who may come here, to as 
 sume that power for himself, without the power 
 of the legislature, or of any civil tribunal to con 
 trol him, or whether it shall be left in the power 
 of the legislature to proclaim it when it shall ap 
 pear that the civil law cannot be exercised ? Shall 
 we leave it to them, or shall we place ourselves 
 in the mortifying condition of forcing a military 
 hero to assume the power, in an emergency, 
 because we have unwisely tied our hands in a 
 period of peace ? 
 
 Mr. HALLETT, for Wilbraham. : As the gen 
 tleman for Manchester had leave to state his view 
 of this question, and as I think he has stated it 
 not in accordance with the law or the facts of 
 the case, I ask the indulgence of the Convention 
 to say a few words in reply, and promise that I 
 will detain them but a moment. 
 
 If I understand the point made by the gentle 
 man, he assumes that " military law " is " mar 
 tial law." Now, Sir, martial law is not military 
 
 law, and I am sure that the gentleman cannot 
 undertake to assert it, from any authority he can 
 produce. I can only attribute his error to his 
 not having looked into the matter. I presume 
 that Blackstone was not before him, or the opinion 
 of Judge Woodbury, when he made that asser 
 tion. Sir, I repeat, martial law is not military 
 law. You cannot find any martial law upon the 
 statute books. Martial law is the absence of all 
 law. It can only be proclaimed when the laws 
 which the legislature has established cannot be 
 enforced. I read from Judge Woodbury s opinion, 
 as given in the 7th volume of Howard s Reports, 
 in the Rhode Island causes. The question there 
 was, whether martial law could be proclaimed by 
 a legislature. The learned judge says : 
 
 " The present laws for the government of the 
 military in England, do not exist in the vague 
 and general form of martial law, but are ex 
 plicitly restricted to the military, and are allowed 
 as to them only to prevent desertion and mutiny, 
 and to preserve good discipline. So in this coun 
 try, legislation as to the military is usually confined 
 to the general government, where the great powers 
 of war and peace reside ; and hence, under these 
 powers, congress, by the Act of 1806, has created 
 the Articles of War by which the armies of the 
 United States shall be governed, and the militia, 
 when in actual service, and only they. To show 
 that this is not the law by which other than those 
 armies shall be governed, it has been found neces 
 sary, in order to include merely the drivers or 
 artificers in the service, and the militia, after 
 mustered into it, to have special statutory sections. 
 Till mustered together, even the militia are not 
 subject to martial law. And whenever an at 
 tempt is made to embrace others in its operation, 
 not belonging to the military or the militia, nor 
 having ever agreed to the rules of the service, 
 well may they say, we have not entered into such 
 bonds in hccc vincula non veni. Well may they 
 exclaim, as in Magna Charta, that no freeman 
 shall be taken or imprisoned but by the lawful 
 judgment of his equals, or by the law of the 
 land. " 
 
 Again he says : 
 
 " So it is a settled principle even in England, 
 that under the British Constitution, the military 
 law does in no respect either supersede or inter 
 fere with the civil law of the realm ; and that the 
 former is in general subordinate to the latter. " 
 
 Now there is the rule of law, and the clear dis 
 tinction between military law and law martial. 
 I do not suppose that the gentleman for Manches 
 ter intentionally misstated the point ; but I must 
 say that, as a lawyer, he stated it very disingen 
 uously. Now I ask, will the gentleman contend 
 that military law should supersede the civil law ? 
 
 Mr. DANA. I said nothing of that sort. 
 
470 
 
 BILL OF RIGHTS. 
 
 [68 th day. 
 
 Wednesday,] 
 
 HAI.LETT DANA BIRD. 
 
 [July 27th. 
 
 Mr. HALLETT. The gentleman said that 
 martial law existed in our statute books, and that 
 when the civil law could not be carried out it 
 should be superseded by martial law. If he it? 
 correct, it follows that military law may supersede 
 civil law whenever the legislature choose to say so. 
 Now, Sir, I repeat that military law and martial 
 law are not the same thing, and that there is no 
 martial law in the statute book. The gentleman 
 alluded to a court-martial, and to a judge advo 
 cate. Why, Sir, there are no judge advocates 
 under martial law. No, Sir; if the gentleman 
 had ever looked into any book upon martial law 
 or upon military law concerning a court-martial, 
 he would have known the distinction. There is 
 no trial under martial law. There is no judge 
 advocate. It is the drum-head and the platoon. 
 
 Mr. DANA. Does the gentleman mean to 
 say that the legislature has no right to* control 
 martial law or to enact it ? 
 
 Mr. HALLETT. Yes, Sir. The legislature 
 can only declare martial law, or enact that certain 
 persons, or the whole people, shall be piit under 
 martial law. They cannot alter martial law, nor 
 decree what it is. The case for declaring that 
 martial martial law exists, can arise only when 
 the legislature, as it did in Rhode Island, shall 
 declare the whole State to be under martial law. 
 In other words, an abrogation of all law. The 
 legislature of Massachusetts could not declare one 
 portion of the Commonwealth under martial law 
 and the other under civil law, during a campaign. 
 They could not declare one town under martial 
 law and another under civil law. 
 
 Mr. DANA. The gentleman has not answered 
 my question. I ask him whether he means to 
 deny that the martial law is under the control of 
 the legislature, atid whether they have not the 
 right to make laws regulating it r 
 
 Mr. HALLETT. That is the point I was 
 explaining. No, Sir ; the legislature cannot 
 make martial law or control it, because they have 
 no power to enact in detail a code of law which 
 abrogates civil law. They have no authority 
 whatever, except that contained in this provision 
 in the Bill of Rights, which is just this, as it 
 stands in the present Constitution : 
 
 " No person can in any case be subjected to 
 law martial, or to any penalties or pains by virtue 
 of that law, except those employed in the army 
 or navy, and except the militia in actual service, 
 but by the authority of the legislature." 
 
 There is the authority which is to declare mar 
 tial law, or to subject persons to martial law ; 
 not to make or modify martial law. Now the 
 gentleman says the legislature ought to have au 
 
 thority to put any man, or the whole State, under 
 martial law. Do you mean to give the legislature 
 that power ? Do you mean, when you come here 
 to propose to the people a Constitution which pre 
 scribes and limits the legislature, to say that the 
 legislature shall have power to abrogate even the 
 Constitution itself, whenever they shall think 
 proper ? Do you mean to give them the authori 
 ty to point to this man, or that man, and say he 
 shall be put under martial law, without any pro 
 tection of his rights by civil law ? What is the 
 use of your Bill of Rights r What is the use of 
 anything in your Constitution with that provision 
 which makes the legislature as lawless as a Ro 
 man Dictator } 
 
 Now instead of that, it is proposed to take this 
 power away from the legislature and provide that 
 no person shall be subjected to law martial except 
 those engaged in the army and navy, and except 
 the militia in actual service. That is the law mar 
 tial of the camp, which follows the army wherever 
 it goes, and that is all the law martial which any 
 republican Constitution, made since the Revo 
 lution, ought to provide for, and it is all the mar 
 tial law I hope this Convention will consent to. 
 
 To settle this matter of definition, I will read a 
 short extract from 4 Blackstone s Commentaries, 
 concerning martial law. He says : 
 
 "Martial law, which is built upon no settled 
 principles, but is entirely arbitrary in its decisions, 
 is, as Sir Matthew Hale observes, in truth and 
 reality no laic, but something indulged in rather 
 than allowed as a law. The necessity of order 
 and discipline in an army, is the only thing which 
 can give it countenance." 
 
 Mr. BIRD, of Walpole. I have but a single 
 word to say, and that is this : I hold that those 
 who are opposed to the passage of this resolve, 
 must show that there is a necessity for conferring 
 upon the State authorities this power to declare 
 martial law. 
 
 Mr. DANA. We have always had it. 
 
 Mr. BIRD. There may have been a necessity 
 for it when this Constitution was formed, for we 
 had not then tried the experiment of self-govern 
 ment. It was then a very doubtful experiment, 
 and it is easy to believe that it may have been 
 wise then to put such a provision into the Consti 
 tution. But before gentlemen can with good 
 reason call upon me to vote for continuing this 
 power, they must show that the power is neces 
 sary in this year of grace, 1853. Sir, I do not 
 believe it. It may have been considered neces 
 sary, or because it may have been really neces 
 sary in 1780, it does not follow that it should 
 be continued now when that necessity has passed 
 awav. 
 
68th day.] 
 
 BILL OF RIGHTS. 
 
 471 
 
 Wednesday,] 
 
 SCHOULER BIRD CHURCHILL FRENCH BROWN. 
 
 [July 27th. 
 
 Mr. SCHOULER. Suppose it should be 
 necessary fifty years hence ? 
 
 Mr. BIRD. It has not been necessary for 
 fifty years past, and I believe the world is grow 
 ing better instead of growing worse, and therefore 
 it will be no more necessary fifty years hence 
 than it is now. 
 
 Now, I must first be satisfied that any con 
 ceivable case can ever arise in Massachusetts 
 where it will be necessary for the State authori 
 ties to proclaim martial law, before I will ever 
 vote to confer such a monstrous power upon the 
 legislature. 
 
 But there is another question which may very 
 well be asked whether the State of Massachu 
 setts has, or has ever had since the adoption of the 
 Federal Constitution, the power under any cir 
 cumstances, to proclaim martial law ? I think it 
 would not be very difficult to show that Massa 
 chusetts has given to the federal government the 
 entire control of this matter. By the Constitution 
 of the United States, any individual State has no 
 right to declare war, and martial law can only be 
 declared in a state of war. We might find our 
 selves in a state of insurrection under circum 
 stances when it would be justifiable to declare 
 martial law ; but even then it could be done by 
 State authorities only, against law. 
 
 But, waiving this question, I do not believe 
 any emergency will ever arise within the borders 
 of the State of Massachusetts, where it would be 
 advisable to confer upon the legislature the power 
 to declare martial law. I do not believe such a 
 state of circumstances is possible in the nature of 
 things, in the next fifty years. I do not believe 
 any person upon this floor will rise here and say 
 he seriously believes that any emergency will ever 
 arise in Massachusetts which may not be safely 
 controlled by the civil authorities. Then where 
 is the necessity or propriety of conferring such a 
 power upon the legislature when we can hardly 
 conceive of an instance in which it would be 
 proper to use it ? I hope the proposition before 
 the Convention will be adopted. 
 
 Mr. CHURCHILL, of Milton. It seems to 
 me that if we are to adjourn on Saturday, the 
 debate upon this particular topic has been pro 
 longed as far as is necessary. It seems to me that 
 a power that has existed so in the Constitution 
 without any harm coming from it, may very 
 safely be trusted there in future. At the same 
 time, I believe some great emergency may arise 
 in the future, when such a power would be 
 necessary. I therefore move to lay the whole 
 subject on the table. 
 
 Mr. BIRD. Upon that motion, I ask for the 
 yeas and nays. 
 
 The yeas and nays were not ordered, 25 voting 
 in the affirmative, and 104 in the negative. 
 
 The question upon Mr. Churchill s motion was 
 then taken, and agreed to ayes, 70 ; noes, 67. 
 
 So the whole subject was laid upon the table. 
 
 Mr. FRENCH, of New Bedford. I move a 
 reconsideration of the last vote, that the subject 
 may go among the Orders of the Day for to 
 morrow. 
 
 The PRESIDENT. At the present time, the 
 Orders of the Day are under consideration. The 
 next order is the document on the Bill of Rights. 
 The question is on its final passage. 
 
 Mr. MOREY, of Boston. I move that the 
 Convention do now adjourn. 
 
 The question was taken, and on a division there 
 were ayes, 65 ; noes, 93. 
 
 So the Convention refused to adjourn. 
 
 Mr. BRIGGS, of Pittsfield. I wish to inquire 
 whether the yeas and nays have been ordered oil 
 the amendments to the Bill of Rights ? It seems 
 to me, that if they have not, we ought not to take 
 the question now, on such a subject. 
 
 Mr. SUMNER, for Marshfield. There has 
 been no vote to take the yeas and nays on this 
 proposition. 
 
 Mr. BRIGGS. Then I think we ought not to 
 act upon it now, with a house consisting of 
 scarcely a quorum. 
 
 The PRESIDENT. The question is on the 
 final passage of the resolves. 
 
 Mr. SCHOULER, of Boston. As I wish to 
 move an amendment to that Report, of which I 
 gave notice last night, I hope the Orders of the 
 Day may be laid on the table ; and I make that 
 motion, that they lie on the table. 
 
 The motion was agreed to. 
 
 Mr. SCHOULER. I move that the Conven 
 tion adjourn. 
 
 The question being taken, on a division there 
 were ayes, 83 ; noes, 44. 
 
 So the Convention adjourned until three o clock, 
 P.M. 
 
 AFTERNOON SESSION. 
 
 The Convention reassembled at three o clock. 
 
 Mr. BROWN, of Medway. I voted this fore 
 noon, under a misapprehension, on the subject of 
 the rights of the jury. That vote does not ex 
 press my real views, and I wish to have it changed, 
 so that it may be recorded yes, instead of 110, on 
 that question, if it is consistent with the rules to 
 do so. 
 
 The PRESIDENT. The subject having 
 passed in Convention, it is not competent for the 
 gentleman to change his vote at this time. 
 
 Mr. WILSON, of Natick. I move to take 
 
472 
 
 HOUSE OF REPRESENTATIVES, &c. 
 
 [68th day. 
 
 Wednesday,] 
 
 WILSON PARKER MORTON HUNTINGTON. 
 
 [July 27th. 
 
 from the table the resolutions in relation to future 
 amendments of the Constitution. I wish to have 
 the subject placed in the Orders of the Day. 
 
 The motion was agreed to. 
 
 Mr. WILSON. For the purpose of saving 
 time, I move to suspend the rules for the pur 
 pose of having this subject placed in the Orders of 
 the Day, for to-day. 
 
 The motion to suspend the rules was agreed to, 
 and the resolutions were placed in the Orders of 
 the Day. 
 
 Sectarian Schools. 
 
 Mr. PARKER,, of Cambridge. I move now 
 to take from the table the subjects contained in 
 Documents Nos. 11 and 16 of the calendar, rela 
 ting to schools and school moneys. I do not wish 
 to consume the time of the Convention by any 
 remarks ; but I must regard a refusal to take 
 them up, as a refusal to act upon them at all. 
 
 The motion to take them up, and proceed to 
 their consideration, was agreed to. 
 
 The question was on the second reading of the 
 following resolve : 
 
 Resolved, That it is expedient so to amend the 
 Constitution, as to provide that no public money 
 in this Commonwealth, whether accruing from 
 funds, or raised by taxation, shall ever be appro 
 priated for the support of sectarian or denomina 
 tional schools. 
 
 Mr. PARKER. I move to amend the resolu 
 tion of the Committee, by striking out all after the 
 word " Resolved," and inserting the resolve con 
 tained in Document No. 123, which is as fol 
 lows : 
 
 That all moneys raised by taxation in the towns 
 and cities, for the support of public schools, and 
 all moneys which may be appropriated by the 
 State for the support of common schools, shall be 
 applied to, and expended, in no other schools 
 than those which are conducted according to law, 
 under the order and superintendence of the 
 authorities of the town or city in which the 
 money is to be expended ; and such moneys shall 
 never be appropriated to any religious sect for the 
 maintenance, exclusively, of its own schools. 
 
 I do not wish to detain the Convention a mo 
 ment with, this subject. This amendment has 
 been prepared on consultation with divers gentle 
 men ; and it is one which, I suppose, will meet the 
 approbation of the Convention, and may be adopt 
 ed without debate ; and unless some gentleman 
 objects to it, I shall take no time in explaining it 
 now. 
 
 The question was then taken on the adoption of 
 the amendment, and it was decided in the affirm 
 ative. 
 
 The question recurred on the final passage of 
 the resolution as amended, and it was passed. 
 
 Special Assignment. 
 
 Mr. MORTON, of Taunton. There is a sub 
 ject before the Convention of some consider 
 able interest, upon an amendment which I had 
 the honor to offer to the resolution in relation to 
 representatives. At the request of certain indi 
 viduals who were not satisfied with my amend 
 ment, I withdrew it a fortnight ago, and submit 
 ted it as an independent proposition. For the 
 accommodation of gentlemen who wished to press 
 forward other business, I omitted to call it up 
 until now. I find that gentlemen are anxious to 
 close their labors here, and that there are other 
 propositions which they wish to have acted upon 
 at present ; and I have agreed to move that the 
 Committee be discharged from its considera 
 tion, so that there may be a special assignment 
 for it to-morrow, at an early hour. It will be 
 necessary, in order to accomplish it, that there 
 should be a motion to suspend the rules for the 
 purpose of discharging the Committee. 
 
 The motion to discharge the Committee from 
 the consideration of the resolution, was agreed 
 to. 
 
 Mr. MORTON. I move that the rules be sus 
 pended, so that the subject may be considered in 
 Convention. 
 
 The motion was agreed to. 
 
 Mr. MORTON. I now move that it be specially 
 assigned as the subject for consideration at ten 
 o clock, to-morrow. 
 
 Mr. HUNTINGTON, of Northampton. It 
 seems to me this question is closely connected 
 with another question which remains to be settled 
 yet ; and that is, as to the mode in which these 
 amendments are to be submitted to the people. 
 If these amendments are to go before the people 
 as a whole, under the form of a revised Constitu 
 tion, I do not see how this can be adopted ; and I 
 think that until that question is settled, it should 
 not be discussed. I object to having it made a 
 special assignment for to-morrow morning at ten 
 o clock, until the other question is settled. It 
 seems to me we shall only get ourselves into 
 embarrassment, and consume time to no purpose, 
 by taking up this subject, until we have settled 
 the other question. 
 
 Mr. MORTON. I make this motion under 
 somewhat peculiar circumstances ; and if it is 
 debatable, I should like to give the reasons why 
 I claim to have it assigned for consideration to 
 morrow at ten o clock. 
 
 The PRESIDENT. It is debatable to that 
 extent. 
 
68th. day.] 
 
 HOUSE OF REPRESENTATIVES. 
 
 473 
 
 Wednesday.] 
 
 MORTON WILSON HUNTINGTON EARLE SCHOULER. 
 
 [July 27th. 
 
 Mr. MORTON. It will be recollected that this 
 proposition was submitted more than two weeks 
 ago, as an amendment to the resolves in relation 
 to representation. At the request of certain 
 individuals who were in favor of this proposition, 
 and upon the assurance that it should have an 
 early consideration, I withdrew it as an amend 
 ment. I did not wish to press it upon the Con 
 vention, nor to surprise them with it at any time, 
 and concluded to offer it as an independent propo 
 sition. Various subjects have come up, and it 
 has been postponed from time to time, at the 
 request of gentlemen who had some object which 
 they wished to have acted upon, until the present 
 time. I think that, under the circumstances, I 
 have a strong claim to have it considered by the 
 Convention at an hour when they can have an 
 opportunity to consider it. I therefore desire that 
 an early hour may be fixed for its consideration 
 to-morrow. 
 
 So far as the objection goes, I think it should 
 not prevail, because the gentleman may have as 
 much of an opportunity to discuss it under this, 
 as under the independent proposition ; and there 
 fore, I hope that, under the peculiar circumstances, 
 the Convention will do me the favor, I may say 
 the justice, to make the special assignment. It is 
 obvious, and we all rejoice at it, that this Con 
 vention is about to draw to a close ; and unless this 
 proposition, which is a pretty important one, is 
 considered early to-morrow forenoon, there will 
 no proper opportunity to consider it at the pres 
 ent session of the Convention. 
 
 Mr. WILSON, of Natick. I wish to say but a 
 single word in relation to this matter. I hope it 
 will be specially assigned for to-morrow, and if at 
 that time it is not best to consider it then, if other 
 things come up, it can be deferred for a short time. 
 We have several subjects which it is necessary to 
 dispose of this afternoon, and I hope the gentle 
 man from Northampton will not object to it. 
 
 Mr. HUNTINGTON, of Northampton. I 
 have no objection to that time, if w r e can save 
 time by it ; but the other question in relation to 
 the mode of submitting the amendments to the 
 people, has got to be discussed when it is brought 
 before the Convention by the Committee who are 
 to report upon that subject. If you assign this 
 subject for to-morrow morning at ten o clock, it 
 will be discussed then, and you will inevitably 
 have another discussion on it when the Committee 
 report; and thus you will consume double the 
 time that is necessary. It appears to me, that in 
 discussing the main question, this will also be 
 brought in and discussed incidentally. The gen 
 tleman from Natick seems to suppose, that unless 
 this is specially assigned for some future time, it 
 
 necessarily comes up now ; but that is not so. If 
 it is not assigned for to-morrow morning, it may 
 go over, and if the gentleman from Taunton will 
 assign it for the same time that the other question 
 is to be discussed, I think we shall save time by 
 so doing ; as the two subjects are connected, let 
 them be discussed together. I do not see why 
 the gentleman cannot modify his motion, so as to 
 have this assigned for the same time that the 
 other subject is taken up. If he will make 
 that motion, I will vote for it. 
 
 Mr. EARLE. I think if this subject is first 
 discussed, it will do very much towards enabling 
 us to come to a proper result in relation to the 
 other question. I think that that question can 
 not be settled before, so well as it can be after this 
 is determined. When this comes to be discussed, 
 it will probably lead to other propositions, and I 
 think it should be disposed of before the other 
 subject is taken up. For these reasons, I am in 
 favor of the motion of the gentleman from Taun 
 ton, and hope this subject will be assigned for 
 to-morrow morning. 
 
 Mr. SCHOULER, of Boston. I have been 
 trying for the last fortnight to discover some 
 insuperable objection to having this alternative 
 proposition taken up. Gentlemen who have 
 spoken to me about it, have told me that it was 
 not possible to dispose of that subject now, and I 
 understand the gentleman from Northampton, to 
 consider it impossible. If w r e decide that the 
 Constitution shall go out as a whole, with the 
 exception of this representative question, I under 
 stand him to argue that it will be impossible to 
 send out an alternative proposition with regard 
 to the basis of representation. There must be 
 some objection that I have not thought of nor 
 heard of; for really, I cannot conceive of any. 
 Supposing we do decide that the Constitution 
 shall go out to the people as a whole, still I can 
 conceive of no objection to having this part con 
 sidered separately. We may, for instance, place 
 in the Constitution, the system of town represen 
 tation that has been adopted by the Committee 
 and the Convention ; and at the same time we can 
 send out to the people the other proposition for 
 them to vote on, and provide, that if the district 
 system receives the largest number of votes, that 
 shall be inserted into the Constitution in place of 
 the other. I can think of no difficulty about 
 arranging that matter. I think I can frame a pro 
 position in five minutes, that will put the matter 
 just right, unless there is some objection which has 
 not yet been advanced. I am in favor of the gen 
 tleman s proposition, that we shall take up the 
 subject to-morrow morning at ten o clock, and 
 decide whether we are to submit anything to the 
 
474 
 
 BILL OF RIGHTS, &c. 
 
 [68th day. 
 
 Wednesday,] 
 
 EAMES WHITE WILSON HALLETT DANA. 
 
 [July 27th. 
 
 people besides the system of town representation 
 which has been adopted. It has been intimated 
 that there is a compromise proposition to be offer 
 ed, that will, perhaps, reconcile all differences. I 
 think if this matter is taken up to-morrow morn 
 ing, there will be an advantage in having an early 
 decision of the question, in order that the Com 
 mittee who are to prepare and write out the 
 amendments to the Constitution, may be enabled 
 to govern themselves accordingly. For these 
 reasons, I am in favor of the special assignment 
 proposed by the gentleman from Tauiiton. 
 
 Mr. EAMES, of Washington. I am in favor 
 of the assignment for to-morrow morning, for I 
 am willing to give the gentleman from Taunton 
 time to have the matter discussed ; but, for the 
 purpose of putting an end to this preliminary de 
 bate, which accomplishes nothing, and in order to 
 enable us to get home to our constituents some 
 time or other, I now move the previous ques 
 tion. 
 
 The previous question was ordered. 
 
 The question being then taken on the motion 
 of Mr. Morton, it was agreed to. 
 
 Leave of Absence. 
 
 The PRESIDENT. The Chair has received a 
 communication from Mr. Huntington, member of 
 the Convention for Becket, stating that in conse 
 quence of a death in his family, he is obliged to 
 ask leave of absence until the close of the session 
 of the Convention. 
 
 On motion by Mr. EAMES, leave of absence 
 was granted. 
 
 Sectarian Schools. 
 
 Mr. WHITE, of Quincy, moved to reconsider 
 the vote by which the resolve on the subject of 
 appropriations for sectarian schools was passed ; 
 and upon that motion he asked the yeas and 
 nays. 
 
 The motion was placed in the Orders of the Day 
 for to-morrow. 
 
 Sill of Rights. 
 
 Mr. WILSON, of Natick, moved that the Con 
 vention proceed to the consideration of the re 
 solves from the Committee on the Bill of Rights. 
 
 The motion was agreed to ; and the resolves 
 having been read a second time, the question was 
 stated on their final passage. 
 
 Mr. HALLETT, for Wilbraham, moved to 
 strike out the following words, being the same 
 that had been inserted on the motion of Mr. 
 Dana : 
 
 " Said writ shall be granted, as of right, in all 
 cases where the legislature shall not specially con 
 
 fer discretion therein upon the court; but the 
 legislature may prescribe preliminary proceedings 
 to the obtaining of said writ." 
 
 Mr. HALLETT. Mr. President : This is a 
 wholly new question, and I wish gentlemen to 
 be apprised of its importance. The insertion of 
 this provision in our Constitution, may bring 
 the United States and the State into direct 
 conflict. This provision may authorize any per 
 son to take out of the custody of any United 
 States officer, any one whom he has in trust 
 upon a criminal or civil process. The result 
 of it is, you compel your State courts to issue 
 a writ of habeas corpus, and one of your con 
 stables or sheriffs goes to the marshal to ex 
 ecute it, who must either resist it, or be liable to 
 a penalty if he allows it to be carried into effect. 
 If the marshal resists, the United States forces 
 will be called out, and he will be sustained by the 
 United States law. He would call on his posse 
 comitatus, and if the governor happens to be on 
 his side, he would have the military ordered out 
 to assist him, and you would have war imme 
 diately. If this Convention desire to have a war, 
 they must find means to carry it on. Now, Sir, 
 I object to throwing any such firebrand as this 
 into the Constitution. I hope we shall leave this 
 matter where we found it ; for if we are going to 
 have w r ar, I want to know what your martial 
 law is going to be. 
 
 Mr. DANA, for Manchester. Will the gentle 
 man allow me to ask him wherein my provisions 
 differ from a law in the Revised Statutes, which 
 has been in force ever since 1822 ? 
 
 Mr. HALLETT. I will tell the gentleman 
 that there is a difference in one important point. 
 The gentleman wants to carry his particular cases. 
 He accused me of bringing some matters into the 
 Constitution, for which he said I desired to make 
 constitutional provisions because I had lost cases; 
 but the gentleman also lost a case, and he has got 
 his hobby here that he proposes to ride through 
 the Convention. I hope the Convention will not 
 allow him to ride it in peace. 
 
 Mr. DANA. That is not my question. 
 
 Mr. HALLETT. I was going to answer the 
 gentleman s question, if he will let me take my 
 time for it. The gentleman asks in what respect 
 this provision that he proposes to introduce into 
 the Constitution, is different from a law now in. 
 force. I will tell him. By the present existing 
 law, the judge determines, upon the presentation 
 of a petition and the evidence, whether he will 
 issue the writ of habeas corpus or not. In the 
 case where a person is held by a criminal pro 
 cess, if he determines that that legal process is a 
 valid process, he does not issue a writ of habeas 
 
68th day.] 
 
 BILL OF RIGHTS. 
 
 475 
 
 Wednesday,] 
 
 KEYES. 
 
 [July 27th. 
 
 corpus. Now the gentleman insists that if you go 
 before the judge and apply for the writ of habeas 
 corpus, on the very civil process under which the 
 marshal holds the individual, although the judge 
 thinks that is valid, nevertheless he must issue 
 the writ of habeas corpus. Then you have the 
 whole State 011 the one hand to put down, and 
 the whole United States on the other hand to be 
 put down ; and the question is, who can fend off 
 the hardest ? 
 
 Mr. KEYES, for Abington. I have been quite 
 concerned the last three or four weeks, in conse 
 quence of not having heard anything said about 
 saving the Union. I think it has not been saved 
 for at least three weeks. [Laughter.] Since we 
 have heard these patriotic speeches on the subject, 
 however, I feel somewhat inspired with a hope 
 that we shall not go to pieces before to-morrow 
 morning, now that the subject has been taken up. 
 Now, Sir, I take it that the meaning, if there is 
 any meaning at all in this matter, is to extend 
 and to render more secure the right of habeas 
 corpus in Massachusetts, to individuals. If this 
 is the tendency of it, I suppose it will be adopted. 
 There is a small class of people here in Massachu 
 setts, who have undertaken to save the Union by 
 making us all negro -catchers nothing else; and, 
 I trust, whatever this Convention may do, that it 
 will not degrade itself by following any such 
 lead as that. Yes, Sir ; there are a set of men 
 here in Massachusetts, who, for the last two or 
 three years have taken it upon themselves to save 
 the Union by making the people negro- catchers 
 the miserable serfs of negro -drivers ; and Henry 
 Clay says that even throughout the South, they 
 are a tabooed and contemptible set tabooed from 
 all civilized people, and from the society of gen 
 tlemen. If that class of men are satisfied to be 
 come negro- catchers ; if they choose to become 
 these abandoned wretches that are despised by 
 all gentlemen, then I am content that they should 
 do so, and will not undertake to interfere with 
 them at all ; but when they undertake to make 
 me a negro-catcher, I am not content, for I 
 regard it as a personal insult, which I shall take 
 every occasion, and every justifiable means to 
 resent. I say that this class of men are despised 
 by the human race, as they ought to be. But if 
 this matter is to be argued seriously and I do 
 not believe that there is any need for it take the 
 case that the gentleman for Wilbraham, (Mr. Hal- 
 lett,) has said may occur in Massachusetts. A 
 case of the kind has just occurred in Pennsylva 
 nia ; and, Sir, the State of Pennsylvania does not 
 rank itself anywhere beside Massachusetts ,on 
 these questions of liberty. But a case of that 
 sort has arisen in Pennsylvania, and the marshal 
 
 of the United States, armed with those infamous 
 powers which are conferred by the federal gov 
 ernment, but which conflict with the laws of 
 the State of Pennsylvania, has been arrested and 
 imprisoned in that State. Sir, look round on 
 these walls ; look up into the sky ; look at Wash 
 ington, and everywhere else; and all that you 
 ever knew about the Union is just as perfect as 
 before that event happened. Yes, Sir, this fu 
 gitive slave was taken out of the hands and the 
 custody of the marshal of the United States, by 
 the State of Pennsylvania, and when the marshal 
 refused to give him up, he himself was imprison 
 ed. How different, Sir, are our proceedings in 
 our courts in Massachusetts ! When an applica 
 tion was made on behalf of the State of Mas 
 sachusetts, to the United States marshal of this 
 district, in a similar case, he set your application 
 and your laws alike at defiance. The officers of 
 the United States spit in the face of Massachu 
 setts ; and instead of that opposition which should 
 have come from brave men, there was a whining 
 sycophancy, a cowardly cringing to the South, 
 which has had no example since the days of the 
 Revolution ; and the men who indorse this foul 
 cowardice, are the only men who are called na 
 tional Democrats or national Whigs. [Laughter.] 
 Sir, according to the definition the national Demo 
 crats have given themselves, they are unlineal and 
 bastard Democrats. [Renewed laughter.] What 
 idea have they of the doctrines of their great 
 founder, whose name they take upon their lips, 
 but whose doctrines they every hour trample in 
 the dust ? I take it, Sir, that Pennsylvania has 
 set an example which Massachusetts may follow ; 
 that of this idea of danger to the Union, and this 
 conflict with the government of the United States, 
 with which men, for their own base purposes, 
 have endeavored to frighten the people of Massa 
 chusetts, we have now had an example, and we 
 now see to what it amounts. When Pennsylva 
 nia, or any other State demands, and insists upon 
 its just rights, those rights will be granted ; and 
 that too, without danger to the Union ; but if we 
 lay down on our faces, dust-licking, they trample 
 upon us, as they ought to do, and as we deserve 
 to be trampled upon. We ask for nothing but 
 our just rights and liberties ; and if we ask for 
 them like bold, brave, and just men, we shall get 
 them without much trouble. It is because we 
 have a pack of men in this Commonwealth, and 
 scattered all over the country for political pur 
 poses, to show that they are national men, and who 
 are forever with their mouths in the dust, that 
 has brought all this evil upon us. Let us assert 
 the dignity of Massachusetts, and submit to this 
 thing no longer. Let us show, that while we re- 
 
476 
 
 BILL OF EIGHTS. 
 
 [68th day. 
 
 Wednesday,] 
 
 KEYES DANA. 
 
 [July 27th. 
 
 gard the government of the United States, we are 
 not to neglect the interests and rights of the State 
 and the people of Massachusetts. Let the people 
 of the New England and the Free States but say 
 the word once, and all difficulties and collisions 
 between the South and the North will end at once. 
 Southern men are gentlemen ; Southern men are 
 brave, and therefore I am willing to trust them. 
 It is not the slave-holder, born on the Savan 
 nah 
 
 The PRESIDENT. The Chair must remind 
 the gentleman for Abington, that he is passing 
 beyond the subject before the Convention. 
 
 Mr. KEYES. I was not aware of it. I thought 
 I was talking about the amendment. The amend 
 ment, if I understand it, is for securing the writ 
 of habeas corpus, or rather for extending the power 
 of that writ in the State ; and, Sir, I maintain that 
 it is good for nothing, unless it applies to this 
 matter of the fugitive slave law. It is scarcely 
 ever needed under any other circumstances, and 
 those difficulties between the North and the South 
 are what make this amendment necessary. 
 
 But, Sir, I do not seriously intend to argue this 
 amendment ; because, if the Convention regard the 
 amendment on grounds like that, if the people of 
 Massachusetts did not hiss at the whole of it at 
 once, we are not worthy of having a Constitution 
 at all. [Laughter.] They will do it ; and I hold 
 it to be a duty which I owe to my constituents, 
 and to myself, as well as to the people of Massa 
 chusetts, to do everything in my power to prevent 
 the execution of this abominable law ; and any 
 man who extends the powers of that law, I hold 
 does me a personal injury, and offers me a per 
 sonal affront, and I hold him responsible to me ; 
 and I shall never neglect an opportunity of resist 
 ing such an affront whenever it is offered. 
 
 Mr. DANA, for Manchester. The member for 
 Wilbraham, in his very natural excitement, fear 
 ing the Union to be in danger, is not in so per 
 fectly calm a state of mind as is desirable for the 
 investigation of a question of law. This is a pure 
 question of law ; and were it not that he is im 
 pressed by this feeling of great alarm, he would 
 see at once, that what I propose has no harm in 
 it. The Revised Statutes have provided, since 
 1836, and the old law provided since 1822, that 
 every person restrained of his liberty, by any 
 other person or persons, may prosecute a writ of 
 habeas corpus, according to the provisions of the 
 statute. Now, if that does take a slave out of 
 the custody of his master, we cannot help it ; it is 
 the law, and it must be enforced when necessity 
 arises. 
 
 "Every person imprisoned in any common jail, 
 or otherwise restrained of his liberty, by any offi 
 
 cer or other person, except in the cases mentioned 
 in the following section, may prosecute a writ of 
 habeas corpus, according to the provisions of this 
 chapter, to obtain relief from such imprisonment 
 or restraint, if it shall prove to be unlawful." 
 
 He shall "prosecute the writ" and "obtain 
 relief," if the restraint shall prove to be "unlaw 
 ful." Now, that is perfectly plain. He is enti 
 tled to his writ, and then, upon that writ, is to be 
 determined the question of the lawfulness or un 
 lawfulness of the detention or restraint. If the 
 detention proves to be lawful, he is not relieved ; 
 if unlawful, then he is relieved. I cannot see 
 how any person can be afraid of such a law as 
 that. 
 
 The second section describes persons who shall 
 not, as a matter of right, be entitled to this writ ; 
 meaning, thereby, that all others, with these ex 
 ceptions, shall be entitled to it as a matter of right. 
 " Every person," with certain exceptions, " may 
 prosecute a writ of habeas corpus. " And what 
 are the exceptions ? Persons convicted for trea 
 son or felony ; persons convicted or in execution 
 upon legal process; and persons committed on 
 mesne process. These shall not have the writ as 
 a matter of right, but the issuing of it shall be 
 left to the discretion of the court. In these three 
 classes of cases it is not proper that persons 
 should be taken out of the custody of an officer 
 upon the petition of every-body who asks for it, 
 because they are in a public jail, in the custody 
 of a public officer, and ordinarily in no peril. The 
 court will hear the question upon petition before 
 they will decide as to granting the writ. But all 
 other persons, except these, shall have the writ as 
 a matter of right. Why ? Because they may not 
 be in legal custody ; and in such case they ought 
 to be brought into court, and not held at the 
 mercy of persons who may choose to detain them. 
 That has always been the statute law of Massa 
 chusetts that these three classes who are here 
 enumerated, shall not have this writ as a matter 
 of right, but that all others shall. 
 
 Then, the statute says that application shall be 
 made to the court in writing, setting forth the 
 name of the party for whose relief the writ is in 
 tended, the place where the party is imprisoned, 
 the pretence for the imprisonment or restraint, 
 and if there is any warrant or other process, a 
 copy is to be annexed, or evidence given that it 
 has been demanded and refused ; and finally, the 
 facts set forth in the complaint shall be verified 
 by the oath of the person making the application. 
 
 Then, the fourth section provides that the court 
 or magistrate, "shall, without delay, award this 
 writ of habeas corpus." It does not say that they 
 may or may not issue this writ, as they please, 
 
68th day.] 
 
 BILL OF EIGHTS. 
 
 477 
 
 Wednesday,] 
 
 DANA HALLETT. 
 
 [July 27th. 
 
 but that they "shall, without delay, award and 
 issue a writ of habeas corpus" My amendment, 
 therefore, does not differ from the Revised Statutes 
 and the law, as it has been in operation since 
 1822. It simply proposes to put this matter into 
 the Constitution, where it cannot be changed by 
 the legislature, or evaded by the court. The writ 
 is to be granted in all cases where there is not a 
 discretion specifically vested. At present, the dis 
 cretion is limited to three classes of cases. The 
 legislature may, if it chooses, add to these classes 
 all persons held under charge of being fugitive 
 slaves, and relieve the mind of the gentleman for 
 Wilbraham. There is nothing to prevent the 
 legislature, if they please, from adding that class. 
 I saw a report of a case this morning, in a Penn 
 sylvania paper, in which application was made for 
 this writ, in behalf of a fugitive slave. The United 
 States marshal, in whose custody the fugitive 
 slave was, refused to deliver him up to the sheriff, 
 and the consequence was, that the marshal was 
 arrested. A return was then duly made to the 
 writ ; and, upon a hearing of the case, the fugitive 
 was remanded into the custody of the marshal. 
 The only question was, whether the hearing 
 should be upon the writ, or without the writ. 
 The great security has always been, that it should 
 be upon the writ; and the object, is that the court 
 may see the parties before them, that they may 
 see the original process, and not be obliged to de 
 pend upon copies, or upon any man s word ; and 
 above all, that there may be no danger of the 
 party being spirited away before a decision. As 
 Judge Kane, in the Pennsylvania case said, he 
 eould not trust to the word of the marshal, that 
 he would not carry the fugitive off beyond the 
 jurisdiction of Pennsylvania. Now, if the court 
 is first to give a hearing on petition, before the 
 writ is granted, the respondent might, in the 
 mean time, carry the man away, which he could 
 not do, the writ being granted, and the parties all 
 in court. The great purpose of the writ of habeas 
 corpus is not to have a decision of a court as to 
 whether a man may be carried off, but to prevent 
 his being carried off until it is first determined 
 whether he is in lawful custody. For a mere 
 decision, any other action may do as well. The 
 party is to be brought into court, so that he can 
 not be carried away. You may issue an injunc 
 tion, to say that a man shall not carry another 
 away ; but what is the use of your injunction ? 
 He may get beyond your jurisdiction. The writ 
 of habeas corpus seizes all the parties, so that from 
 that moment no damage can be done until the 
 question on the writ is decided. 
 
 In these remarks, I have alluded to the case of a 
 fugitive slave ; for it is in respect to them only, I 
 
 believe, that any objection is offered to my amend 
 ment. If 011 the return of the writ, it is decided 
 that the master has a right to the slave, he will 
 get him ; or if it is decided that the marshal 
 should detain him, he will, of course, have the 
 right to do so. This was the course pursued 
 by Judge Woodbury, in the case of Sims. He 
 issued the writ, and heard the case on the return, 
 with all parties before him. I cannot conceive 
 any objection that there can be to the issuing of 
 the writ, unless it be that it prevents the chance 
 the claimant has of getting his man out of the 
 State before a legal decision can be had. 
 
 I believe, Sir, that I am one of the last persons 
 who will be accused of bringing forward radical 
 measures in matters of law. On the contrary, I 
 have maintained conservative measures in this 
 Convention to the extent my influence would 
 reach, and perhaps beyond it. On this point, I 
 merely wish to place in the Constitution what is 
 now, and always has been, the statute law. I de 
 sire to do this, because there is now a disposition 
 on the part of the courts to assume the right of dis 
 cretion in all cases. In the case of Thomas Sims, 
 the supreme court said that they had discretion in 
 all cases on the petition. The hearing might 
 occupy a day or two, or three, or even a week, 
 without ever getting the parties before them ; and 
 hence, by the time that a decision was obtained, a 
 man might be a week s journey out of the State. 
 I do not believe that the courts have a right to 
 exercise such a discretion, and I want the Consti 
 tution to say that they shall not exercise it, ex 
 cept in such cases as the legislature may specially 
 authorize. The gentleman for Wilbraham, (Mr. 
 Hallett,) in his zeal to prevent collision with the 
 United States, ought to recollect that the same 
 privilege he is so zealous to give to the master in 
 favor of his slave, may do great wrong to many 
 innocent persons, who ought to have the benefit 
 of that writ. There are other persons besides 
 slaves who want the benefit of the writ of habeas 
 corpus. And I beg gentlemen in their zeal for the 
 recovery of slaves, not to put into the hands of the 
 master a power which others may exercise to the 
 oppression of the weak. 
 
 Mr. HALLETT, for Wibraham. The gentle 
 man for Manchester sometimes reminds me of 
 the one idea concentrated so touchingly in the 
 sentimental writings of Sterne, which describes 
 an enthusiast looking through the door of a prison 
 grate, and seeing nothing but a slave with the 
 iron entering his soul. That gentleman, upon 
 some subjects which he discusses, does the same, 
 and can see nothing but the slave and the slave 
 holder. I trust my mind is a little broader than 
 that. I have not thought of that in connec- 
 
478 
 
 BILL OF RIGHTS. 
 
 [68th day 
 
 Wednesday,] 
 
 DANA HALLETT. 
 
 [July 27th. 
 
 tion with so great a personal right as the habeas 
 corpus. 
 
 Mr. DANA. I ask the gentleman whether I 
 ever brought up the subject of the fugitive slave 
 law in debate, except in answer to him ? 
 
 Mr. HALLETT. The gentleman has brought 
 it up here in this proposition ; he brought it be 
 fore the Committee on the Bill of Rights, where 
 it was voted down ; then he comes here and 
 renews the issue. Now, Sir, it is not solely on the 
 ground that this amendment may be designed to 
 obstruct the execution of the fugitive law that I 
 oppose it, but because the gentleman in his zeal 
 to cover that case, is endangering the benefit of the 
 writ of habeas corpus. It relates to all our laws, 
 and to the personal rights of all citizens. Just 
 examine it. The present provision in the Con 
 stitution in regard to the writ of habeas corpus, 
 is this : 
 
 " The privilege and benefit of the writ of habeas 
 corpus shall be enjoyed in this Commonwealth 
 in the most free, easy, cheap, expeditious and ample 
 manner." 
 
 Can you add anything more to that ? It " shall 
 be enjoyed in the most free, most easy, most ex 
 peditious, and most ample manner ! " The gen 
 tleman says that is not enough. He wants some 
 thing more. But to get that more he puts this 
 great right at the mercy of a legislature. If he 
 wants anything more than the Constitution now 
 gives, of the freest and cheapest claim to this 
 writ in all cases, it seems to me that he can only 
 want some provision by which, under color of its 
 being an amendment to the common law right of 
 habeas corpus, some law may be violated, or the 
 State and the United States be brought in conflict. 
 
 Sir, instead of securing liberty, it may authorize 
 any man, under color of this new habeas corpus, 
 to take any man or woman out of their house or 
 bed, and drag them before a magistrate ; or kid 
 nap them while on the way ; or, by bribing the 
 officer who executes this writ, to be granted to 
 anybody who asks for it. That is the practical 
 effect of requiring such a writ in all cases. What 
 does the gentleman intend by it ? He is perfectly 
 frank upon that point. He intends by it to com 
 pel any judge to deliver a writ of habeas corpus 
 to any person who asks for it. Suppose a case in 
 which a person is held by the United States mar 
 shal under civil process. What would the gen 
 tleman do ? He goes to a judge of the State 
 court and applies for a writ of habeas corpus. 
 Why, says the judge, the marshal has got the man 
 for debt, under legal process, and what is the use 
 of issuing a habeas corpus ? Nevertheless, he 
 replies, I want the man here, I want to do some 
 thing for him, and must have a writ. The law, if 
 
 this provision prevails, can give the judge no 
 discretion, and he must issue the writ. Then 
 comes the conflict of State and United States offi 
 cers. The party must be brought before the j udge, 
 if the marshal will allow it ; arid if the prisoner 
 can be rescued on the way, very well. That may 
 be one object. Just so if the marshal has a pirate 
 in custody, and his comrades, or any class of 
 philanthropists, opposed to hanging, desire to 
 have him rescued ; they go to a judge, and the 
 judge must issue a writ of habeas corpus ; and, in 
 the meantime, the crew, or the sympathizers, are 
 ready to rush to his rescue as soon as the marshal 
 undertakes to bring him before the judge. The 
 legal process goes for nothing, which holds any 
 person in custody, for this provision in the Con 
 stitution will supersede all existing statute law. 
 I ask the gentleman one thing ; the moment this 
 is adopted into the Constitution, what becomes of 
 your statute law ? It is repealed. Which is the 
 higher law ? The Constitution. If anything in 
 the Constitution is in conflict with the State law, 
 the Constitution repeals that. This amendment, 
 therefore, will repeal that provision in the existing 
 law. To whom does that provision in the ex 
 isting law deny the right of the writ of habeas 
 corpus? To persons in prison for felony, and 
 persons in execution on civil process. The present 
 proposition is, that the writ shall no longer be 
 denied to them. And worse than that, the leg 
 islature are to have control over this great writ of 
 personal right to make it anything they choose to 
 have it. Why does the gentleman want to go 
 farther than the Constitution and laws now go ? 
 The Constitution says this writ shall be enjoyed 
 in the freest manner possible ; and the legislature 
 says, it shall be granted as a matter of right in all 
 cases, except in case of persons in prison for 
 felony, or held in execution upon civil process. 
 The gentleman wants something else ; but what 
 else ought he to have ? I have not opened this 
 question here. I wanted to avoid raising it. I 
 did not want a question upon a sectional matter 
 like this, to mingle in the discussions upon the 
 adoption of the new Constitution. I know those 
 who want to defeat this Constitution, are very 
 anxious to have some sectional or disunion matter 
 incorporated into the Constitution, for they know 
 that they can then rally every friend of the Union 
 against it. For that reason, I want to throw every 
 thing aside of that character. I say, therefore, 
 if you adopt this provision, you furnish the oppo 
 nents of the Constitution with an argument which 
 I do not wish to put into their hands. I trust 
 that we shall not, by our action, bring about this 
 conflict; or, at least, keep this matter by itself 
 for a distinct, separate vote. 
 
68th day.] 
 
 BILL OF RIGHTS. 
 
 479 
 
 Wednesday,] 
 
 HALLETT WILSOX. 
 
 [July 27th. 
 
 Although gentlemen who have stood with me 
 upon a good many platforms, upon this subject, 
 are silent now, and probably will be by their 
 votes, yet I hold it to be quite as important now, 
 as it was just before the presidential election, to 
 preserve this Union. [Laughter.] Most of all is 
 it important to prevent a conflict between the 
 civil and criminal jurisdiction of the United 
 States and of the State. That is a grave subject, 
 upon which no citizen, who has taken an oath to 
 support the Constitution of the United States, 
 should suffer a smile to come over his coun 
 tenance ; and if gentlemen will laugh at that, they 
 will laugh at their own condemnation in the day 
 of judgment. 
 
 I say upon this point, that the bare possibility 
 of any provision creating a conflict between the 
 United States and a State, is a matter of the 
 highest delicacy. I trust, Mr. President, without 
 reflecting upon the actions or motives of any one, 
 that we shall leave this subject where we find it ; 
 and not, under the mistaken idea of enlarging the 
 right of the writ of habeas corpus, in fact, restrict 
 it, by putting it in the hands of a party legisla 
 ture, or allow it to be made an instrument of 
 tyranny and gross abuse, in the hands of any 
 man who may wish to seize the person of another 
 against his will, for a malicious, corrupt, or 
 wicked design. 
 
 Mr. WILSON, of Natick. Mr. President: 
 I am amazed at the extraordinary assertion of 
 the member for Wilbraham, (Mr. Hallett). That 
 assertion is this : that if the declaration is made 
 in the Constitution of Massachusetts that the writ 
 of habeas corpus is a writ of right, it is a declara 
 tion of war upon the United States. Sir, this is 
 certainly an extraordinary doctrine to avow in 
 a Constitutional Convention in America. Magna 
 Charta recognizes the habeas corpus as a writ of 
 right. This is the American doctrine, incor 
 porated into the Constitutions of the American 
 States. The Constitution of this State declares 
 that " the writ of habeas corpus shall be enjoyed 
 in this Commonwealth in the most free, easy, 
 cheap, expeditious, and ample manner." Now, 
 the member for Wilbraham sees, in the annun 
 ciation of the doctrine that the writ of habeas 
 corpus is a writ of right, to "be enjoyed in the 
 most free, easy, cheap, expeditious, and ample 
 manner," not at the discretion of a judge of the 
 supreme court, but as a right a declaration of 
 war upon the national government. He sees 
 war, strife, bloodshed, and disunion, loom.ng up 
 on the horizon of the future. Sir, t e judges 
 of the supreme court may now exe dse all the 
 powers this proposed constitution . A amendment 
 imposes; they may, they can, do all that the 
 
 amendment of my friend for Manchester (Mr. 
 Dana) imposes upon them, and yet the member 
 for Wilbraham is alarmed because the Constitu 
 tion, if amended, will require the judges to do 
 just what they all can lawfully do now. 
 
 I yield to no man, Mr. President, in love and 
 devotion to that Union which binds together the 
 sovereign States of this ever- extending, ever- ad 
 vancing republic. I love that Union for the 
 glories of the past, the renown and power of the 
 present, and the brilliant hopes of the future. I 
 hope that every foot of the North American con 
 tinent will be incorporated into this Union into 
 this cluster of bright constellations. I wish to 
 see freedom and free institutions for all, and 
 chains and fetters for none, follow the advancing 
 flag of the Union. But this morbid anxiety about 
 the Union, which is sustained by the stout hearts 
 and strong arms of more than twenty millions 
 of American freemen, is supremely ridiculous 
 and absurd. Sir, this Union does not depend 
 for its perpetuity upon the self-appointed Union- 
 savers, who, during the past three years have 
 blurted into the ears of the country, their devotion 
 to it. It lives in the hearts of twenty millions of 
 men, ever ready to defend it and preserve it. 
 
 All of us here, Mr. President, appreciate the 
 devotion to the Union, of the member for Wil 
 braham, (Mr. Hallett,) but none of us, I am sure, 
 believe that even that gentleman has any fear for 
 the safety of that Union. Should the amendment 
 of my friend for Manchester, (Mr. Dana,) be 
 adopted, I think the perilled Union will survive 
 the shock, and that even the member for Wilbra 
 ham will sleep well of nights. His slumbers will 
 be undisturbed by war, bloodshed, and strife, 
 growing out of the exercise of the right of the 
 writ of habeas corpus. If I saw in the amend 
 ment moved by the member for Manchester, 
 any danger if I could see in it any tendency 
 to bring on a conflict with the general govern 
 ment, I would vote against it. I am not one who 
 would advocate anything that should lead to 
 bloodshed and conflict. But it seems to me that 
 the right of the writ of habeas corpus, is one 
 which should not be held at the discretion of the 
 judges of the supreme court of Massachusetts, or 
 any other class of men. It should be the consti 
 tutional right which we can appeal to at all times 
 which we may enjoy in the " most free, cheap, 
 expeditious, and ample manner." 
 
 Reference has been made to the recent case in 
 Pennsylvania. Last Saturday, Marshal Wyn- 
 koop was called upon on a writ of habeas corpus, 
 issued by a judicial tribunal of that State, to 
 produce the body of a person in his custody as a 
 fugitive slave placed in his custody by the de- 
 
480 
 
 BILL OF RIGHTS. 
 
 [68th day. 
 
 Wednesday,] 
 
 WILSON BARTLETT DANA. 
 
 [July 27th. 
 
 cisioii of Commissioner Ingraham, whose " alac 
 rity " in the business of consigning persons 
 claimed as fugitive slaves to their claimants, has 
 won for him an immortality of infamy. Marshal 
 Wynkoop, whose conduct in this case meets the 
 unqualified condemnation even of the conserva 
 tive presses of Philadelphia, refused to obey the 
 summons. He was arrested, and held in im 
 prisonment until Monday, when he came into 
 court and produced his prisoner ; the individual 
 produced was delivered up to the marshal, who 
 held him on the certificate of the commissioner, 
 under the fugitive slave act. There was no 
 danger, difficulty, or conflict. No one felt any 
 shock. The sensitive nerves of the members of 
 the Union- Safety Committees were not affected. 
 The Union moved on in harmony in its course. 
 
 This extra anxiety about the Union, is the 
 merest political cant. The country is sick of it. 
 The sad fate of the chiefs in this Union cry, of the 
 past three years, must convince even the member 
 for Wilbraham, that this sitting up with the 
 Union does not pay expenses. It is to be hoped 
 that this Union delusion will soon pass away ; 
 and that the especial guardians of the Union will 
 soon discover that the American people can pre 
 serve and protect that Union which makes them 
 one people, without the special aid of their offi 
 cious interference. 
 
 Mr. B ARTLETT, of Boston. I have no desire 
 to treat this as a matter of political interest, 
 arising out of any past occurrence in this Com 
 monwealth, but purely as a question of law. As 
 I listened to my friend for Manchester, (Mr. 
 Dana,) I at first thought he was right, and he 
 would have commanded my vote but for a little 
 farther scrutiny. I think there is error in the 
 first place, in the suggestion that the courts of the 
 Commonwealth have assumed a discretion not 
 warranted by the statute. If I could find a trace 
 of that, either in the authorities or in the oral 
 history of proceedings under this great writ of 
 liberty, I would aid in amending the law. But 
 the gentleman is wrong. No court of this Com 
 monwealth, in regulating the granting of the writ 
 of habeas corpus, has ever, so far as I can learn, 
 departed from the statute. The solution of the 
 supposed disregard of the law is, I think, to be 
 found in this. The statute regulating the right 
 to the writ of habeas corpus provides for classes of 
 cases. It has enumerated three classes in which 
 it is discretionary with the court to grant the 
 writ or not. It has left, by just implication, all 
 else without discretion. But, Sir, the law has 
 wisely provided beyond that, that in cases where 
 there is no discretion, some preliminary case is to 
 be made, before the exercise of the judicial power 
 
 can be called into action. The provision is set 
 forth with clearness and distinctness in the third 
 section of the chapter. By that section, before 
 any writ can issue, the applicant must make out 
 a case under oath, complying with certain requi 
 sitions, and among them, not simply that the 
 party is restrained of his liberty, but he must set 
 forth, according to his best knowledge and belief, 
 the cause or pretence for that restraint, and if it be 
 under legal process, must annex a copy if he 
 can. 
 
 Now, as happened in the Sims case, and 
 as will happen again, the alleged cause of the 
 restraint was shown on the face of the application 
 to be perfectly legal and justifiable. The party, 
 in compliance with the prerequisites of the stat 
 ute, exhibited a case which, if it were correctly 
 stated, was beyond the power of the court to 
 relieve ; and those statute prerequisites were 
 framed with the intent that the true condition of 
 the facts, if known, should be early developed 
 to the end that the authority and process of the 
 Commonwealth should not be idly and frivo 
 lously invoked. It will be difficult otherwise to 
 account for their insertion. 
 
 Such, I think, is the legal attitude of the case, 
 and such the intent of the statute. As I said 
 before, I have no desire to discuss the principles 
 on which the Sims case was disposed of, but 
 simply to vindicate what I think was a just con 
 struction of the statute regulating the writ of 
 habeas corpus. If the Convention shall deem it 
 proper that the writ should issue without scru 
 tiny, at the will of the applicant, I should prefer 
 a plain, distinct resolution to that effect, rather 
 than the proposed amendments. 
 
 But so long as it is deemed wise that a party 
 applying for the writ shall make some case, so 
 that the court shall not be compelled to deal with 
 frivolous applications, I think it would be better 
 to let the law stand as it is. 
 
 Mr. FRENCH, of New Bedford, here obtained 
 the floor. 
 
 Mr. DANA, for Manchester. If the gentle 
 man from New Bedford will allow me a moment 
 of his time, I should like to say a word in answer 
 to the gentleman who has just taken his seat. 
 
 Mr. FRENCH. Certainly, I will yield a mo 
 ment. 
 
 Mr. DANA. The legislature has said, that 
 the application shall set forth four things. Now 
 in the Sims case, those four things were set forth ; 
 first, the person by whom the party was impris 
 oned ; second, the cause or pretence of the impris 
 onment ; third, it was said to be by process, and 
 we annexed what we supposed to be a copy of the 
 process, a copy which was handed to us whether 
 
68th day.] 
 
 BILL OF RIGHTS. 
 
 481 
 
 Wednesday,] 
 
 DANA BATES FRENCH. 
 
 [July 27th. 
 
 it was a precise copy we could not know and 
 then we verified it by oath. Now, here arises the 
 question. We said, and I say now, that having 
 complied with those four requisitions, we were 
 entitled to our writ. The gentleman says, that 
 though we complied with them, we were not 
 entitled to it, unless the court considered that 
 upon them we had made out a prima facie case 
 of illegal restraint. 
 
 That is not so. And there our courts differ 
 from the law and decision of other courts. The 
 process, a copy of which we annexed, showed 
 that our case did not come within the three classes 
 of cases set forth as exceptions in the second 
 section of the statute. The object of requiring 
 the copy of the process to be annexed to the 
 petition is, that the court may see whether the 
 case comes within either of these classes of excep 
 tions. If it does, they have a discretion. If not, 
 they have not a discretion, but must issue the 
 writ, and determine the lawfulness of the restraint 
 upon the return to the writ. In the case of Sims, 
 the process was clearly not within either of the 
 exceptions. 
 
 Mr. BATES, of Plymouth. I rise to a ques 
 tion of order. I believe the gentleman has 
 occupied his fifteen minutes. 
 
 The PRESIDENT. The gentleman is talk 
 ing upon the time of the gentleman from New 
 Bedford, (Mr. French). 
 
 Mr. DANA. As the gentleman rises to a 
 question of order, I will not pursue the subject 
 farther. 
 
 Mr. FRENCH, of New Bedford. Mr. Presi 
 dent : I am in favor of the amendment which has 
 been proposed by the gentleman for Manchester, 
 and for the reason that it asserts that this writ of 
 habeas corpus shall be issued as of right ; and had 
 it been thus issued on former and proper occa 
 sions, when there was a necessity for it when it 
 was applied for in a legal manner this amend 
 ment would probably not have been offered on 
 the present occasion. But, Sir, in one of the 
 most important cases that was ever tried in Mas 
 sachusetts, or that can ever arise here a case 
 where the personal liberty, during life, of a human 
 being was concerned that writ was denied. And 
 notwithstanding the high eulogies the gentleman 
 for Manchester, (Mr. Dana,) and others, have 
 passed upon the judges of the supreme court of 
 this Commonwealth, I should like to ask the gen 
 tleman for Manchester, for my own information 
 as well as for the information of the Convention, 
 how those judges treated him on an occasion 
 when he applied for a writ of habeas corpus in a 
 case of personal liberty, or slavery for life ? 
 
 Mr. DANA, for Manchester. I would rather 
 
 33 3 
 
 not answer that question but I will say one 
 thing. I have never said that the supreme court 
 of this State, in the trial of the Sims case, was 
 as impartial as the lot of humanity will allow. I 
 was understood very generally, I am informed, 
 as having used that expression ; but what I said 
 is this : that the law had done all it could do to 
 make them as impartial as the lot of humanity 
 will permit. As to the manner in which I was 
 treated on that memorable occasion, I will not at 
 present allude. 
 
 Mr. FRENCH. It is not at all strange to me 
 that the gentleman declines to answer my inquiry. 
 I will state another case, however. A very re 
 spectable attorney of this city (S. E. Sewall, Esq.) 
 applied to one of the judges of the supreme court 
 for a writ of habeas corpus, in the same case ; but, 
 Sir, without even deigning to reply to the appli 
 cant, that learned judge turned his back upon 
 him and marched off and that, too, in a case of 
 personal liberty, or slavery during the poor man s 
 natural life the latter of which was assigned 
 him in this land of the free. Under these circum 
 stances, I ask, ought we not to have in our Con 
 stitution a provision like that proposed in this 
 amendment that this writ shall be issued as a 
 right ? These are some of the reasons why I am 
 in favor of it. 
 
 Talk about danger of a dissolution of the 
 Union ! Why, we were told upon the floor of 
 the Senate of the United States, a long time ago, 
 that the women and children down South will 
 take care of that ; and I am surprised that large, 
 robust, healthy looking gentlemen should attempt 
 to make speeches here in favor of saving the 
 Union, when it can be so well taken care of by 
 others. There is no danger about this matter at 
 all ; and let me say that this amendment would 
 never have been offered or required, had it not 
 not been for these miserable tinker ers of the 
 Union. 
 
 Sir, if the delegations from Massachusetts, 
 which she sent to look after her interests at the 
 capitol of our country from time to time, had 
 stood up like men for the liberty our forefathers 
 fought and bled for, we should not have had any 
 talk about the danger of dissolution and secession. 
 We were told here the other day, by the gentle 
 man from Pittsfield, about the door of the capitol 
 being slammed in the face of little Michigan, 
 by the slave-holding power, when she applied for 
 admission into the Union as a free State ; and about 
 the eloquent gentleman from Quincy, who stood 
 up there and defended her rights ; but where were 
 the balance of the delegation from Massachusetts, 
 who should have supported that old man elo 
 quent ? As we were told this morning in regard 
 
482 
 
 BILL OF RIGHTS. 
 
 [68th day. 
 
 Wednesday,] 
 
 FRENCH LOUD. 
 
 [July 27th. 
 
 to another gentleman, upon another occasion, they 
 had gone over to the enemy, and were assisting 
 him in slamming the door, and holding it there, 
 too. 
 
 Sir, what has caused all the difficulty and 
 trouble which we have experienced, and which 
 makes it necessary that we should adopt some 
 provision of this character for our own protection ? 
 It has been caused by the do ugh- faces of the Free 
 States, who have gone to Washington and crawled 
 upon their bellies in the dust to conciliate the 
 slave-holders, and who assisted in the passage of 
 the fugitive slave law, that their darling (Webster) 
 might be made president of the United States. 
 And, Sir, if the representatives from the Free 
 States had stood up in congress for their rights 
 and the rights of humanity, like the old man elo 
 quent, we should have had no fugitive slave law, 
 and no talk about it. Massachusetts alone was 
 its godfather, and Massachusetts should be respon 
 sible for it. And since it exists, let us fix our 
 Bill of Hights and our Constitution in a way that 
 will hereafter guard our rights and secure liberty 
 for all our citizens. 
 
 There is another amendment which ought to be 
 submitted and adopted, touching trial by jury, and 
 which would probably assist us on future occa 
 sions, upon this subject ; but I am willing, if the 
 present proposition is adopted, to let that pass for 
 the present that seems to be so well provided for 
 now. Let us take care of the future as well as 
 the present ; and, while here, let us put into the 
 Bill of Rights and the Constitution that which 
 will hereafter secure liberty to every man not 
 guilty of crime who treads upon Massachusetts 
 soil and breathes the free air of the Old Bay State. 
 
 Before I take my seat, I desire to allude to one 
 other matter, intimately connected with this sub 
 ject. I wish to bring to the notice of the Con 
 vention a humiliating fact. It has been the 
 custom, from time immemorial, when a member 
 of the Boston bar has been called to his long 
 home, to notice the event, and appropriate resolu 
 tions have been passed no matter what had been 
 his standing by the bench as well as the bar ; 
 but when that lamented son of Massachusetts, 
 (Robert Rantoul, Jr.) the philanthropist, states 
 man and patriot, who did what he could, in the 
 trial of Sims, for his personal liberty and his 
 natural rights departed to his long home, the 
 Boston bench and bar of the latter of which he 
 was a member were as silent as the grave in 
 which he now rests. But, Sir, the time will come 
 when justice will be done to him in that matter, 
 as well as to those who procured the passage of 
 the fugitive slave law ; nor will those who applied 
 it in Massachusetts, and those who have been the 
 
 immediate cause of the trouble and excitement 
 which has been experienced in this regard from 
 one end of the Free States to the other, be forgot 
 ten Union-savers and Southern dirt- eaters, in 
 particular, not excepted. 
 
 Mr. LORD, of Salem. The only objection I 
 have to the amendment which has been submit 
 ted to this resolve, is this : that in my judgment, it 
 is a very serious restriction and limitation of the 
 habeas counts. The Constitution, as I understand 
 it, provides that " The privilege and benefit of the 
 writ of habeas corpus shall be enjoyed in this 
 Commonwealth in the most free, easy, cheap, 
 expeditious and ample manner, and shall not be 
 suspended by the legislature except upon the 
 most urgent and pressing occasions, and for a 
 limited time, not exceeding twelve months." 
 Now, Sir, neither the legislature nor the courts 
 have any authority to touch the habeas corpus in 
 such a way as shall not make it the most free, 
 easy, cheap, and to be enjoyed in the most ample 
 manner. And when you say that the legislature 
 shall have discretion in this matter, or when you 
 say that that body may prescribe the preliminaries 
 in regard to it, you throw away all that is pro 
 vided in the Constitution, and place the power in 
 the hands of the legislature, from whose decision 
 there is no appeal. Suppose that the gentleman 
 who represents Wilbraham, (Mr. Hallett,) and 
 those who agree with him in opinion, should pre 
 vail in the councils of the State, and the legisla 
 ture should pass an act that no writ of habeas 
 corpus should issue until the preliminaries were 
 settled, and that the party in whose favor it was 
 sued out should not be a fugitive slave. Does 
 the gentleman want the legislature to say that a 
 mere transient person shall not have the right to 
 a habeas corpus ? And yet, this amendment pro 
 poses to let the legislature fix all the prelimina 
 ries. No, Sir ; I prize that habeas corpus altogether 
 too highly. I am no liberty trading politician ; I 
 deal in no such capital, but I prize the habeas 
 corpus as a matter of personal right. I do not 
 want the legislature to have the power of fixing 
 any preliminaries in regard to the habeas corpus, 
 but I want it just as the Constitution gives it to 
 us, as free, easy, cheap and expeditious as it can 
 possibly be. The people, I am sure, have the 
 greatest confidence in it, as it at present stands, 
 and are ready to rely upon the judgment and 
 discretion of the courts for its proper use. The 
 supreme court has never refused to issue a writ 
 of habeas corpus, unless it was manifest from the 
 circumstances of the case that they would be 
 obliged, upon the appearance of the party before 
 them, to return him instantly to the same party 
 in whose custody he was. Under such circum- 
 
68th day.] 
 
 BILL OF RIGHTS. 
 
 483 
 
 Wednesday, 
 
 ADAMS SCHOULER DAVIS HALLETT STETSON. 
 
 [July 27th. 
 
 stances, of course, they would not issue the writ. 
 I desire, therefore, to retain the habeas corpus of 
 the Constitution just as it has ever existed, unin- 
 curabered and unrestricted by the preliminaries 
 which the legislature may see fit to make. I shall 
 vote against the amendment. 
 
 Mr. ADAMS, of Lowell, demanded the previ 
 ous question. 
 
 Mr. SCHOULER, of Boston. I hope that the 
 demand for the previous question will not be sus 
 tained, at least, if it is intended to apply to the 
 resolutions as a whole. I gave up my right to 
 the floor yesterday, and am willing to sit all day 
 now, if I can be allowed to reach the resolution 
 to which I desire to submit an amendment. I 
 have no objection to the previous question so far 
 as it applies to each particular resolution, but I 
 hope it will not operate against the whole. 
 
 Mr. ADAMS. If my motion can be so modi 
 fied that the question can be taken on the adop 
 tion of the resolutions separately, I am willing 
 that that course should be taken. 
 
 The PRESIDENT. The motion of the gen 
 tleman can be so modified. 
 
 Mr. WALES, of Randolph, moved that when 
 the question is taken, it be taken by yeas and 
 nays. 
 
 A division being called for ayes, 45 ; noes, 
 214 one-fifth not voting in the affirmative, the 
 motion was not agreed to. 
 
 So the yeas and nays were not ordered. 
 
 The question was then taken on the amend 
 ment submitted by the gentleman for Wilbra- 
 ham, (Mr. Hallett,) to the second resolve, and 
 upon a division ayes, 37 ; noes, 176 it was 
 decided in the negative. 
 
 The question recurred upon the final passage 
 of the first, second, and third resolves, and being 
 taken, they were, without a division, agreed to. 
 
 The question then being upon the final passage 
 of the fourth resolve, 
 
 Mr. DAVIS, of Worcester, moved to strike out 
 the words " and no powers shall ever be assumed 
 by the legislature that are not granted in this 
 Constitution." So that if amended, the resolve 
 will read, " This enumeration of rights shall not 
 impair others retained by the people." 
 
 Mr. DAVIS. I make this motion because I 
 see no reason why we should prohibit the legis 
 lature, and not the executive and judicial depart 
 ments of government. I hope that the amend 
 ment will be adopted. 
 
 Mr. HALLETT. If that clause is stricken out, 
 it is evident that the legislature may assume 
 powers not granted in the Constitution. 
 
 Mr. SCHOULER, of Boston. This is the long- 
 sought for resolution to which I have desired to 
 
 offer an amendment. And if it is in order, I now 
 move to strike out the whole resolve. It seems 
 to me that some gentlemen, and particularly the 
 member for Wilbraham, (Mr. Hallett,) during a 
 considerable part of this session, have been en 
 deavoring to legislate for the next twenty years 
 to come, and to restrict the people, in their legis 
 lative capacity, from making laws. This very 
 forenoon we had an attempt, which I believe was 
 unsuccessful, to pass a resolution that the legis 
 lature should never have the power to proclaim 
 martial law. We have provided that the legisla 
 ture, to a certain extent, can never loan the State 
 credit ; and numerous other attempts have been 
 made to limit the power of the legislature, in its 
 future action. Now, Sir, I am opposed to this 
 whole system ; I believe that the people of the 
 year 1853 are wise, and intelligent, and that a 
 great deal of wisdom is assembled within this 
 hall ; I am in favor of progression, but I do not 
 think we have reached the height of improve 
 ment. We shall go on improving, day by day, 
 and year by year ; and I do not wish to have any 
 clause put into the Bill of Rights that will be, in 
 all future time, held up to our vision, by men 
 opposed to progress and reform. 
 
 Now I cannot conceive what is the object or 
 intention of this resolution, except it be to en 
 deavor to obtain, in a roundabout manner, that 
 provision which we voted down the other day 
 that the State credit shall not be loaned except 
 for internal improvement. The gentleman for 
 Wilbraham attempted to make a provision that 
 the legislature should not have the power to act 
 in anything not expressly provided for in the 
 Constitution ; but I desire to have a discretionary 
 power left in the hands of that body, for I feel 
 confident they will never violate it. I hope we 
 shall not set ourselves up as the masters of all 
 future legislatures, to say what they shall, and 
 shall not do. " Sufficient unto the day is the 
 evil thereof." 
 
 The legislatures which are to come after us 
 will exercise the discretion granted to them in a 
 proper manner ; and I am therefore opposed, alto 
 gether, to having this resolution adopted. I think 
 that, if adopted, it will result in evil, and be the 
 cause of many unpleasant discussions and con 
 flicting opinions as to the right of the legislature, 
 which if possible, ought to be avoided. I will not 
 farther occupy the time of the Convention, but 
 simply make the motion to strike out the whole 
 of the fourth resolve. 
 
 The PRESIDENT. The Chair would inform 
 the gentleman that his amendment is not in order 
 at this time. 
 
 Mr. STETSON, of Braintree. I do not intend 
 
484 
 
 IMPRISONMENT FOR DEBT. 
 
 [68th day. 
 
 Wednesday,; 
 
 ALLEN HUNTINGTON DAVIS KEYES HALLETT. 
 
 [July 27th. 
 
 to occupy the time of the Convention. I rose 
 merely to say that if there is any one of these 
 resolves to which this body ought to give their 
 sanction, it is to the fourth resolve. I do not 
 think it is the object of this Convention to confer 
 power upon the legislature, but to reserve those 
 powers which have been delegated by the Consti 
 tution, to be acted upon by the people. And, 
 therefore, any restriction which will give them 
 the right to control matters which may arise in 
 the course of legislation, and which properly be 
 long to them as sovereigns, ought to be adopted, 
 and no more should be delegated to the legisla 
 ture than is absolutely necessary to carry on the 
 government. 
 
 Mr. MORTON, of Quincy, demanded the pre 
 vious question. 
 
 The demand for the previous question was sus 
 tained, and the main question ordered to be now 
 put. 
 
 The question being on the adoption of the 
 amendment of the gentleman from Worcester, 
 (Mr. Davis), 
 
 Mr. BRIGGS, of Pittsfield, asked for the yeas 
 and nays. 
 
 The yeas and nays were not ordered. 
 
 The question was then taken on the adoption of 
 the amendment, and it was, upon a division 
 ayes, 135 ; noes, 60 decided in the affirmative. 
 
 The question then recurred on the final pas 
 sage of the fourth resolve, as amended, and a 
 division being asked for, it was by a vote of 110 
 ayes, and 118 noes decided in the negative. 
 
 So the resolution was rejected. 
 
 Imprisonment for Debt. 
 The next resolve was read, as follows : 
 
 Resolved, That the Bill of Rights be so amend 
 ed that no person be imprisoned for debt, in this 
 Commonwealth, except in those cases where fraud 
 can be proved. 
 
 The question being upon its final passage, 
 
 Mr. MILLER, of Wareham, asked for the yeas 
 and nays. 
 
 The yeas and nays were not ordered. 
 
 Mr. HUNTINGTON, of Northampton. I 
 move farther to amend this resolution, by insert 
 ing after the word " debt," the words " hereafter 
 contracted." 
 
 Mr. ALLEN, of Worcester. I would suggest 
 to the gentleman from Northampton, that it would 
 be better to change the phraseology, so that it 
 will read that no debt contracted after the amend 
 ment shall go into operation, &c. 
 
 Mr. HUNTINGTON. That was my inten 
 tion, and I am willing, therefore, to accept the 
 modification. 
 
 Mr. DAVIS, of Plymouth, moved that the re 
 solve be laid upon the table. 
 
 Mr. SCHOULER, of Boston, asked for the 
 yeas and nays upon that motion. 
 
 The question being taken, upon a division 
 ayes, 54 ; noes, 196, one-fifth voting in the af 
 firmativethe yeas and nays were ordered. 
 
 Mr. HALLETT. I understand the motion of 
 the gentleman from Northampton to be pending. 
 
 The PRESIDENT. The yeas and nays are 
 upon the motion to lay the resolve upon the table. 
 
 Mr. KEYES, for Abington. I move a recon 
 sideration of the vote by which the yeas and nays 
 were ordered. 
 
 The motion was agreed to. 
 
 Tiie question then being taken on ordering the 
 yeas and nays, it was decided in the negative. 
 
 The question recurred on the motion to lay the 
 resolves upon the table, and being taken, the 
 motion did not prevail. 
 
 Mr. HALLETT. I wish merely to say in re 
 gard to that amendment, that it seems to me 
 to be only half doing what we propose to do. 
 We have a perfect right to make provision con 
 cerning the process for collecting debts already 
 contracted, as well as for those to be hereafter 
 contracted, and there is no vested right with which 
 an exemption from a process of arrest and im 
 prisonment can interfere. The courts have de 
 cided this matter. 
 
 Now, the question which we have before us, is 
 whether we shall, or shall not, put into the Con 
 stitution, a clause which abolishes all imprison 
 ment for debt, except in cases of fraud that is, 
 of an honest, unfortunate debtor ? If we are to 
 do anything in regard to it, let us do it fairly and 
 clearly ; let there be no half-way work about it, 
 and let the only distinction be between an honest 
 and a fraudulent debtor. 
 
 There is another reason why the exemption 
 from imprisonment should embrace debts already 
 contracted. There are many persons now absent 
 from the State because they have contracted debts 
 which they have been unable to meet ; and to 
 avoid the disgrace of the dungeon, they have been 
 compelled to go to other parts of the world, in 
 order to preserve their personal freedom. There 
 is no limitation which will allow a man to return, 
 for though he may have been absent twenty 
 years, yet, unless the debtor and creditor have 
 been six years after the debt, in the same State, 
 the moment the debtor sets his foot within the 
 boundaries of the Commonwealth, he becomes 
 liable at any moment to be seized and imprisoned 
 for his former debt. Why will you retain such a 
 provision as this, and thus hold the whip over the 
 heads of the absent, who can never return to their 
 
68th day.] 
 
 IMPRISONMENT FOR DEBT. 
 
 485 
 
 Wednesday,] 
 
 GRISWOLD JENKS HUNTINGTON LORD. 
 
 [July 27th. 
 
 old homes ? Another view presents itself. The 
 stranger cannot come to Boston to trade, without 
 being subject to imprisonment, if he owes a debt 
 here, or anywhere in the world, which he cannot 
 pay. What effect does this have upon the trade 
 of Boston, Lowell, Lynn, &c. ? Why not make 
 a clean thing of it, and say that hereafter there 
 shall be no more imprisonment for honest debt, 
 upon the soil of Massachusetts, and allow every 
 man who is now absent from his family and 
 friends, to return home, and live in peace, or to 
 come and visit the old homestead, or come and 
 trade among us, without feeling that he is in dan 
 ger of being snapped up at any moment, and held 
 upon an affidavit. I hope that the amendment 
 will not be adopted. 
 
 Mr. GRISWOLD, for Erving. I regret, Sir, 
 that the mover of the original resolution consent 
 ed to that amendment. It seems to me, that if 
 we intend to do anything in regard to this mat 
 ter, we had better make provision for all past 
 as well as all future contracts. I should much 
 prefer to adopt the resolution originally proposed, 
 for I believe this imprisonment for debt, where 
 there has been no intention of fraud, to be a relic 
 of a barbarous age, of which the sooner we rid 
 ourselves the better. I am willing to go as far as 
 any one in this matter, for I believe that it is not 
 only an act of duty, but an act of justice and 
 humanity which we owe to our fellow man. I 
 shall, therefore, vote against the amendment. 
 
 Mr. JENKS, of Boston. I would inquire of 
 the Chair if it is in order to offer an amendment ? 
 
 The PRESIDENT. It is not in order at this 
 time, but the gentleman may be allowed to state 
 it, if he desires. 
 
 Mr. JENKS. I propose to substitute the fol 
 lowing amendment, which, I think, will obviate 
 the entire difficulty under which we labor : 
 
 No person shall be imprisoned in any case, 
 who is not declared by law to be a criminal, or 
 dangerous to the public safety. 
 
 Mr. HUNTINGTON. I did not introduce 
 this amendment, by any means, from any hos 
 tility to the proposition of the gentleman from 
 Easthampton, (Mr. Strong,) for I have been in fa 
 vor of the principle which he desires to establish, 
 for twenty years ; and, I believe the first petition 
 ever presented to the legislature of Massachu 
 setts, praying for the abolishment of imprison 
 ment for debt, was drawn up by myself. Since 
 that time, my opinion has never changed ; but I 
 have on all occasions, whenever an opportunity 
 has presented itself, advocated the principle to the 
 extent of my humble ability, though never with 
 any material success. I desire to see that princi 
 
 ple adopted in the State of Massachusetts, and it 
 is because of that desire that I introduced the 
 amendment I did. It is my opinion, that if you 
 do not introduce some qualification like that 
 which I have proposed, you will array against the 
 proposition a great number of persons who 
 hold debts in their hands and expect at some 
 time to be able to collect them against men 
 who have absconded. There are persons to be 
 found in almost every village in the Common 
 wealth, who hold debts contracted under this 
 law, who were aware that this remedy existed, 
 and might be applied. I do not say that it is un 
 constitutional to pass the resolution without such 
 an amendment to it, but I think that it would do 
 great injustice to a certain class of citizens ; and I 
 foresee, that unless there is some qualification of 
 this character, there will be but little probability 
 that the proposition will be adopted by the people. 
 These are the motives which induced me to sub 
 mit the amendment. 
 
 Mr. LOUD, of Salem. I supposed from the 
 debate which took place yesterday afternoon, that 
 those who had influence in this Convention would 
 mature this proposition, and it was because of 
 some intimations to that effect, that I withdrew 
 the proposition I made at that time. Now, no 
 gentleman in this Convention is more opposed to 
 putting a man in jail for mere indebtedness, than 
 I am ; and yet, you do not begin to remedy the 
 evil which exists, by adopting this resolution. 
 The real evil is a great deal deeper. What we 
 want to say is, that no man shall imprison another 
 by reason, and on account of any liability due 
 from one to the other. To use the mere term 
 " debt contracted" is to take but a very small class 
 of cases, a class of cases in which there is no more 
 reason for exempting a man from imprisonment 
 for debt, than ordinary cases which come under a 
 different head. Suppose, Sir, a poor man com 
 mences an action against a rich man, and after 
 having been worried out, not being able to get a 
 trial, he abandons his case. There is a bill of 
 costs made out, and, because of his inability to 
 pay that, the rich man takes him, puts him in 
 jail, and keeps him there until the debt is can 
 celled. 
 
 Yet that man could not be imprisoned, if it had 
 been a debt contracted in a bargain. Take a hun 
 dred cases ; one was suggested to me yesterday : 
 an express man, through a mere accident, loses a 
 bundle of money ; an action of tort is brought, 
 judgment is recovered against the express man 
 for the amount, and unless he pays, he has got to 
 go to jail. And why ? Simply because you do 
 not provide for that class of cases. In his case, 
 the suit is not upon a contract. There are, like- 
 
486 
 
 IMPRISONMENT FOR DEBT. 
 
 [68th day. 
 
 Wednesday,] 
 
 LORD SCHOULEB HOOD BKIGGS. 
 
 [July 27th. 
 
 wise, numerous other cases to be cited, but these 
 two are sufficient to show, that if it is wrong to 
 put a man in jail in one instance, for failing to 
 discharge an obligation, it is wrong in another 
 instance. It is a question entirely, however, of 
 judicial remedy ; it is not the contract, strictly 
 speaking, that a man is enforcing when he sues 
 upon a debt ; but it is in reality for damages for 
 the non-performance of the contract ; for the non 
 payment of money. I am, therefore, entirely op 
 posed to placing in the Constitution a provision 
 which only half covers the case. 
 
 If, after a matter has arrived at a judgment, and 
 that judgment can be discharged by the payment 
 of five hundred dollars, what difference is it, 
 whether that five hundred dollars is judgment 
 obtained by reason of a contract made by me, or 
 for anything else which is to be paid for in money r 
 After a party has obtained a judgment, and has 
 thus ascertained the amount of damages, it then 
 becomes a debt, and is precisely of the nature of 
 a debt between two individuals, which it becomes 
 a civil obligation to discharge. It is just as if the 
 party had promised so much money ; there can 
 be no distinction, and the party is morally bound 
 by law to pay that debt, just as much in one case 
 as in another. And if it is a principle tbat you 
 can put a man in jail in one case, and cannot in 
 another, that distinction is founded in wrong and 
 injustice. I therefore move to amend the amend 
 ment, by inserting after the words " hereafter 
 contracted," the phrase " upon judgment here 
 after recovered in any civil suit." 
 
 Mr. SCHOULER, of Boston. I have no doubt 
 that the amendment proposed by the gentleman 
 from Salem, abstractly considered, is right, and if 
 I were sure that the people of the Commonwealth 
 would understand it, I would go for it with all 
 my heart ; but I think that we have secured one 
 great object, when we can recognize in the Con 
 stitution of Massachusetts, that no man shall be 
 imprisoned for a debt, and that we may leave the 
 rest of the matter to be acted upon by subsequent 
 legislatures. If we can get this principle recog 
 nized in that instrument, we shall gain a great 
 end ; but I believe we should run a great risk, if 
 we should adopt the amendment of the gentleman 
 from Salem, and it is for this reason that I shall 
 vote against it. 
 
 Mr. HOOD, of Lynn. I do not find anything 
 in the programme marked out for this Conven 
 tion in relation to imprisonment for debt ; nor do 
 I believe that this is an amendment which the 
 people expected would be made to the Constitu 
 tion. And, I submit to the friends of reform, if 
 we have not done quite as much as is expedient, 
 in considering and adopting the amendments 
 
 which have been before this body since the ses 
 sion commenced r This is one of the questions 
 which will excite a great deal of opposition to the 
 Constitution which we intend to submit to the 
 people, and it may be the means of causing it to 
 be rejected altogether. The subject has been dis 
 cussed for many years in the legislature, and never 
 yet have they been able to pass a law so strong 
 and sweeping as the one proposed here. There is 
 a strong feeling in the community against the 
 passage of any such provision, and I believe that it 
 would be unwise to adopt the proposed amend 
 ment. Under these circumstances, therefore, while 
 I am in favor of the principle, and am opposed to 
 imprisonment for debt, I believe it is better to 
 leave the whole matter to the legislature, to be 
 acted upon by that body ; and I move that the 
 whole subject be indefinitely postponed. 
 
 The PRESIDENT. The Chair would state 
 that such a motion is not in order at this time. 
 
 Mr. BRIGGS, of Pittsfield. I am opposed, 
 entirely, to the imprisonment of an honest man 
 because he cannot pay his debts, and it is for this 
 reason that I shall vote for the amendment which 
 has been proposed by my friend from East- 
 hampton, (Mr. Strong). I shall not do as the 
 gentleman from Lynn has just told us he would 
 do : he says that he is in favor of the principle, 
 he believes it to be right ; but, nevertheless, will 
 vote against it. The gentleman says that it is not 
 in the programme of this Convention. Sir, it is 
 in the programme of the minds and hearts of the 
 people of Massachusetts ; and, in my opinion, the 
 time has arrived when the honest poor man should 
 not be incarcerated four-and-twenty hours in a 
 prison, surrounded by crime and criminals, sim 
 ply because he cannot pay a debt he may have 
 contracted. 
 
 It has been suggested by my friend from Bos 
 ton, on my right, that we are going too far, and 
 that the last clause, that he should not be impris 
 oned for debt except in cases of fraud, might not 
 secure the rights of creditors against fraudulent 
 debtors. Now it is my opinion that the legisla 
 ture will take this matter in hand ; and if we 
 adopt this amendment it will give them ample 
 power to deal with fraudulent debtors, who, 
 having the means of paying, will not comply with 
 their contract. If I did not believe this to be the 
 case, I should be the last man to vote for the 
 proposition. If I am not mistaken, it declares 
 that, hereafter, no honest debtor, who on account 
 of misfortune cannot pay his debts, shall be im 
 prisoned. 
 
 Let me put it to the good sense of this Conven 
 tion : Would it be a light matter for one of us to 
 have a deputy- sheriff come into our house, where, 
 
68th day.] 
 
 IMPRISONMENT FOR DEBT. 
 
 487 
 
 Wednesday,] 
 
 BATES DAVIS BRIGGS. 
 
 [July 27th. 
 
 surrounded by a beloved family, we were enjoy 
 ing the comfort of a peaceful home, take us by 
 the collar, and thrust us into a cell, and say : 
 Oh ! its only four- and- twenty hours you have 
 got to stay there ; it is n t much r " 
 
 Mr. President : I do not regard it so ; I believe 
 that it is a matter of a great deal of consequence, 
 and I shall do all that lays in my power to pre 
 vent any honest man from staying even four-and- 
 twenty hours within the walls of a prison-house. 
 I thank the gentleman from Easthampton, (Mr. 
 Strong,) for introducing this proposition ; I shall 
 go with him cordially in sustaining it, and I trust 
 that the Convention will do the same. 
 
 Mr. BATES, of Plymouth. I have only a 
 word to say in regard to a matter to which the 
 gentleman from Pittstield has failed to allude, and 
 that is, that a debtor is not only incarcerated in 
 prison, but then, unless he pays the expense 
 which amounts to about seven dollars of swear 
 ing out before a justice, he mu->t remain in con 
 finement. I submit to gentlemen whether that 
 is a proper mode of treating the poor debtor. 
 
 Now, Sir, I am opposed to the amendment in 
 troduced by the gentleman from Salem, (Mr. 
 Lord,) because I prefer to leave that matter to be 
 settled by the legislature, believing them to be 
 fully able to provide for any difficulty that may 
 arise. I am, however, in favor of the amendment 
 of the gentleman from Northampton, (Mr. Hunt- 
 ington,) and I hope that it will be adopted by this 
 Convention. 
 
 Mr. DAVIS, of Plymouth. I was unfortu 
 nately absent yesterday, in consequence of illness, 
 when this subject came up for consideration. It 
 was brought before us without notice, and upon 
 the amendment offered, in the form of an addi 
 tional resolution. And from what I have learned 
 from others, who are not ignorant of the true 
 bearings of this subject, there seems to have been 
 manifested in its discussion either a timidity allied 
 to a spirit of deraagogism, or what I would much 
 rather think was the case, ignorance on the part 
 of many gentlemen as to the true position of the 
 law upon this question. 
 
 Now, Sir, I deny, in the first place, that there 
 is any imprisonment for debt in the Common 
 wealth of Massachusetts. She is not fairly to be 
 charged with that disgrace. I am aware that 
 gentlemen in this Convention, as well as out of it, 
 have indulged themselves and others with the 
 impression that a man may be imprisoned for any 
 length of time, because he happens to owe a debt 
 which he cannot pay. Gentlemen argue as if 
 such were still the law. I deny that there is any 
 imprisonment for debt, as such, in this Common 
 wealth. It was abolished years ago, through the 
 
 honored and humane labors of the gentleman from 
 Northampton, (Mr. Huntington,) and such as he. 
 
 Mr. BRIGGS. If the gentleman had been 
 here yesterday, he would have learned from a 
 public document which was read here, that during 
 the last year there were thirteen hundred persons 
 imprisoned for debt in this Commonwealth. 
 
 Mr. DAVIS. The gentleman will be kind 
 enough to answer my argument when I have 
 stated my position. I contend that there is essen 
 tially no imprisonment for debt, no imprisonment 
 for poverty or inability, but imprisonment for not 
 paying a debt when a man has the means to dis 
 charge it. The law is, that a man who owes his 
 neighbor, and is not willing to pay, though he 
 has the means, is iinprisoned, not so much be 
 cause he owes the debt which he cannot pay, as 
 for endeavoring to avoid discharging the obliga 
 tion of his contract, without showing his inability 
 to perform it. I believe, Sir, that those who 
 know me, will admit that I am in favor of the 
 largest liberty ; but I think it is necessary that 
 some means should be allowed by the Constitu 
 tion, and provided by law, which will give the 
 power to the creditor to arrest a debtor, who may 
 have contracted a debt with an honest intention, 
 but who may have twenty thousand dollars in his 
 pocket, which he has concluded not to pay. If 
 this resolution is adopted and made part of your 
 Constitution, a man may be going through your 
 State from New York to Maine, his person loaded 
 with money, and the Boston creditor, or the Berk 
 shire trader, can neither detain him, or in any 
 mode attach the money in his pocket. It is for 
 these reasons that I can see nothing but a pure 
 spirit of demagogism which would justify me 
 in advocating a resolution of this character, with 
 out some such limitation as I have alluded to. 
 
 I maintain, Sir, that no honest poor man was 
 ever imprisoned during the last ten years, even 
 for twenty-four hours, except by his own volun 
 tary act. I can merely say that, in my experience, 
 I have never known a case where he could not 
 get bail, or swear out within that time, if he had 
 no property. But I have known very many 
 cases where, by arresting the debtor, the debt was 
 recovered, which, it was certain, could never have 
 been obtained in any other way. I see no reason 
 why we should not look upon this subject prac 
 tically, as upon other subjects, which I am sure 
 the gentleman from Pittsfield is disposed to do. 
 
 Do you mean to let a man shake a bag of gold 
 in your face, and say he does not intend to pay 
 you, because you have no remedy against him ? 
 Men are arrested every day who are strangers 
 here, who contract debts here, and are about to 
 escape to other States, and including them, and 
 
488 
 
 IMPRISONMENT FOR DEBT. 
 
 [68th day. 
 
 Wednesday,] 
 
 DAVIS. 
 
 [July 27th. 
 
 all our population, thirteen hundred are said to 
 have been imprisoned for debt. Not more than 
 one to ten thousand of our own population ! And 
 then I am told that statistics show that only four 
 per cent, of the amount for which they are com 
 mitted is paid by imprisoned debtors. Sir, there 
 are, and can be no statistics, which show the 
 amount paid by persons arrested on mesne pro- 
 eess, or the sums paid in private settlement by 
 debtors 011 execution. Who can say what sums 
 are paid for fear of an arrest. 
 
 Gentlemen are liable to be led into great mis 
 apprehension in this matter. What is the law 
 upon this subject ? No man can be arrested upon 
 mesne process for debt, except upon affidavit that 
 the creditor has absolute reasons for believing the 
 debtor is about to depart ex se ; and this power 
 should be in some form retained. But if arrested, 
 bail can be given to the officer without going to 
 jail, and I thank God there are few honest poor 
 men in this Commonwealth who cannot obtain it ! 
 The officers of the Commonwealth, when they 
 arrest a man, give him the amplest opportunity to 
 confer with his friends, and secure whatever bail 
 may be demanded. And having been arrested, 
 whether he gives bail or not, he can take the oath 
 before the court when the writ is returned, or 
 before the magistrates at any time, upon twenty- 
 four hours notice. 
 
 But if not arrested on the original writ, the 
 law is such that any man who has had process 
 served upon him, can submit himself for exami 
 nation before the court, and satisfy the court that 
 he has no property. By so doing he exempts 
 himself from arrest upon any execution which 
 may thereafter issue. That is all that is neces 
 sary. 
 
 I therefore submit to the Convention that there 
 is no good reason, and surely no popular demand, 
 for the adoption of so sweeping an amendment ; 
 and I hope it will be fairly and fully considered 
 before we take so important, and I think, un 
 necessary a step. We were not sent here for this 
 purpose. If the people demand it, let the legisla 
 ture take the matter in hand, and make such a 
 provision as they may desire, and circumstances 
 may warrant. The legislature abolished the old 
 imprisonment for debt, and can be trusted to make 
 such modifications as are required from time to 
 time. Adopt this resolution, and the courts will 
 hold that you must prove your fraud before you 
 can make a constitutional arrest; or else, if a 
 creditor be permitted to arrest a repudiating 
 debtor on a charge of fraud, no man would dare 
 to do it. Why? Because he would subject him 
 self to an action for false, illegal, unconstitu 
 tional imprisonment, if he should happen to fail 
 
 in proving his case. " Except in cases of fraud," 
 are the words. 
 
 For these reasons, it seems to me it would be 
 the height of infirmity for this Convention to 
 make any provision of the kind. Not that the 
 present law may not require amendment. I 
 could suggest several, and one has been alluded 
 to by my colleague. Let the creditor bear the 
 expense, if the debtor obtains his discharge. Let 
 the legislature modify the law, or sweep it away 
 altogether, as they would have done, had the 
 people demanded it, or had the gentleman from 
 Pittsfield, from Salem, or from Boston, recom 
 mended it to the willing ears of the people of the 
 Commonwealth. 
 
 In regard to the amendment submitted by the 
 gentleman from Salem, (Mr. Lord,) I have to say, 
 that it does not touch the real defects in the reso 
 lution ; nor does the amendment nor the resolu 
 tion remedy the true evils of false imprisonment 
 in this Commonwealth. The gentleman from 
 Salem knows very well, any lawyer who has had 
 any practice knows, that the cases of imprison 
 ment wicked, malicious, and cruel imprison 
 ment do not arise from debts contracted, but are 
 upon writs which are issued for petty slanders, 
 assaults, and the like, on which poor men are 
 arrested, ordered to be held to bail for exorbi 
 tant sums, in default of which they are committed 
 to jail, and often lie there for months. Here, 
 Sir, is an evil to be remedied. Why should a 
 man be imprisoned, in a civil action, on a simple 
 charge of slander or assault, on the mere state 
 ment of an enemy, before it is proved, and before 
 a judgment has created an actual obligation ? 
 
 But, again : I assert, if a man is honest, he is 
 not and cannot be imprisoned for debt, if he de 
 sires to avoid it. If he is about to be taken on 
 execution, in nine cases out of ten, he receives a 
 card from the officer, and is notified to appear, 
 with his bail, for the jail limits, at an appointed 
 time ; but he need not be imprisoned for an in 
 stant. He can then "swear out," in twenty-four 
 hours, if he has no property ; or by taking the 
 benefit of the insolvent act, divest himself of his 
 property, and discharge himself within the same 
 period. So that, in fact, there is no actual im 
 prisonment of an honest man, unless it be by his 
 own voluntary act, or from an obstinate desire to 
 obstruct and hinder the creditor from the recovery 
 of a legal claim, at the expense of his own liberty. 
 The law provides that the bond given upon exe 
 cution must be taken at the jail ; and this pro 
 vision is a source of great annoyance and vexa 
 tion, but may be easily remedied by the legisla 
 ture, by providing that the officer, as well as the 
 jailer, may take a bond for the prison limits. 
 
68th day.] 
 
 CONSTITUTIONAL CONVENTIONS, &c. 
 
 489 
 
 Wednesday,] 
 
 BIRD SCHOULER WILSON KEYES. 
 
 [July 27th. 
 
 Adopt this resolution, with or without the amend 
 ment, and it will have a tendency to keep down 
 credits on the larger scale, and among the great 
 dealers. But you cannot destroy the credit sys 
 tem altogether. It must exist among the grocers, 
 and country traders, and mechanics; and this 
 resolution will affect the poor man, as far as it 
 has the tendency to destroy small credits, and 
 will injure the small trader, who is obliged to 
 trust, just so far as it destroys his remedy against 
 the debtor. 
 
 I hope, therefore, that neither the amendment 
 nor the resolution will be entertained by the 
 Convention. 
 
 Mr. BIRD, of Walpole, moved the previous 
 question. 
 
 Mr. SCHOULER, of Boston. I have no ob 
 jection to the previous question being ordered. I 
 understood the gentleman from Plymouth (Mr. 
 Davis) as alluding to the new born zeal of this 
 Convention in proposing this matter at this late 
 period of the session, and I merely rose to observe 
 that the gentleman would not, perhaps, deem it 
 unfair, if I were to say that his new born zeal 
 may possibly arise from the fact, that if this pro 
 vision is passed, it will probably take away a part 
 of his business. [Laughter.] 
 
 Mr. BIRD. I rise to a question of order. I 
 moved the previous question, and I believe that 
 no debate is allowed after such a motion. 
 
 Mr. DAVIS, of Plymouth. I understand the 
 gentleman from Boston to state, that I made a 
 charge that gentlemen acted upon this question 
 from a spirit of demagogism. 
 
 Mr. SCHOULER. Perhaps the gentleman did 
 not correctly understand me. 
 
 The PRESIDENT. Debate is not in or 
 der. 
 
 Mr. WILSON, of Natick. I understand that 
 the question is on ordering the main question, 
 moved by the gentleman from Walpole, (Mr. 
 Bird). I make it a habit to vote for the previ 
 ous question, and shall do so on this occasion, 
 although I should like an opportunity to say a 
 few words in reply to the gentleman from Ply 
 mouth, who designated us who are in favor of the 
 resolve as demagogues or fools. 
 
 Mr. KEYES, for Abington. It was my inten 
 tion, also, to have replied to the remarks of the 
 gentleman from Plymouth. I informed the gen 
 tleman from Walpole of that fact, but he said 
 that if he could obtain the floor, he would move 
 the previous question. He did obtain the floor, 
 and, without affording an opportunity to reply to 
 what has been said, made that motion. What I 
 desire now is, to have the previous question op 
 posed, so that it may not appear that we have 
 
 indorsed any such sentiments as those we have 
 just heard. 
 
 The question then being on the demand for 
 the previous question, the demand was sustain 
 ed, and the main question ordered to be now 
 put. 
 
 The question being taken upon the motion of 
 the gentleman from Salem, (Mr. Lord,) to amend 
 the amendment of the gentleman from Northamp 
 ton, it was decided in the negative. 
 
 The question was then taken upon the amend 
 ment of the gentleman from Northampton, (Mr. 
 Huntington,) to insert the words " hereafter con 
 tracted," after the word " debt," in the resolution, 
 and the amendment was adopted. 
 
 The question recurred on the final passage of 
 the resolution, as amended, and being taken, it 
 was decided in the affirmative. 
 
 So the resolution was adopted. 
 
 Amendments to the Constitution. 
 
 The next matter in the Orders of the Day was 
 the resolutions reported by the Committee, con 
 cerning future amendments to the Constitution. 
 
 The resolves were read, as follows : 
 
 1. Resolved, That it is expedient to provide in 
 the Constitution, that 
 
 A Convention to revise or amend this Consti 
 tution, may be called and held in the following 
 manner : At the general election in the year 1873, 
 and in each twentieth year thereafter, the quali 
 fied voters in State elections shall give in their 
 votes upon the question, " Shall there be a Con 
 vention to revise the Constitution r " which votes 
 shall be received, counted, recorded and declared, 
 in the same manner as in the election of Gover 
 nor ; and a copy of the record thereof, shall, 
 within one month, be returned to the office of 
 the Secretary of State, who shall, thereupon, ex 
 amine the same, and shall publish, in the news 
 papers in which the laws are then published, the 
 number of yeas and nays given upon said ques 
 tion, in each town and city ; and, if a majority of 
 said votes shall be in the affirmative, it shall be 
 deemed and taken to be the will of the people 
 that a Convention should meet accordingly ; and, 
 thereafter, on the first Monday of March ensuing, 
 meetings shall be held, and delegates shall be 
 chosen, in all the towns, cities, and districts in 
 the Commonwealth, in the manner and number 
 then provided by law for the election of the 
 largest number of representatives, which the 
 towns and cities shall then be entitled to elect. 
 And such delegates shall meet in Convention at 
 the State House on the first Monday of May next 
 ensuing, and, when organized, shall have all the 
 powers necessary to execute the purpose for which 
 such Convention was called ; and may establish 
 the compensation of its officers and members, and 
 the expense of its session, for which the Gover 
 nor, with the advice and consent of the Council, 
 shall draw his warrant on the treasury. And, if 
 
490 
 
 CONSTITUTIONAL CONVENTIONS. 
 
 [68th day. 
 
 Wednesday,] 
 
 SARGENT SUMNER. 
 
 [July 27th. 
 
 such alterations and amendments as shall be pro 
 posed by the Convention, shall be adopted by the 
 people voting thereon in such manner as the Con 
 vention shall direct, the Constitution shall be 
 deemed and taken to be altered or amended ac 
 cordingly. And it shall be the duty of the proper 
 officers and persons in authority, to perform all 
 acts necessary to carry into effect the foregoing 
 provisions. 
 
 2. Resolved, That whenever towns or cities 
 containing not less than one-third of the qualified 
 voters of the Commonwealth, shall, at any meet 
 ing for the election of State officers, request that 
 a Convention be called to revise the Constitution, 
 it shall be the duty of the Legislature, at its next 
 session, to pass an Act for the calling of the same, 
 and submit the question to the qualified voters 
 of the Commonwealth, whether a Convention 
 shall be called accordingly : provided, that nothing 
 herein contained shall impair the power of the 
 Legislature to take action for calling a Conven 
 tion, without such request, as heretofore practised 
 in this Commonwealth. 
 
 3. Resolved, The foregoing provisions shall in 
 nowise restrain or impair the reserved right of 
 the people, in their sovereign capacity, and by 
 such mode of proceeding as shall fully and fairly 
 collect and ascertain the will of the majority, at 
 all times, to reform, alter, or totally change their 
 Constitution and Frame of Government. 
 
 The question being on ordering the resolutions 
 to a second reading, 
 
 Mr. SARGENT, of Cambridge. I hope, Sir, 
 that these resolves will not be adopted. If I 
 understand them correctly, they provide that the 
 basis of representation which you have estab 
 lished, shall be taken as the basis for your future 
 Conventions. Now, Sir, in order to ascertain 
 precisely what we are asked to do, it will be 
 necessary for me to call your attention again to 
 that basis of representation. In doing this, I do 
 not propose to go over the ground that I have 
 already gone over, or to institute the compari 
 sons, or to repeat the arguments I have already 
 advanced, when addressing the Convention in 
 reference to the proposed basis of representa 
 tion. 
 
 Mr. SUMNER, for Marshneld. Will the gen 
 tleman allow me to set him right ? I understand 
 the gentleman to say, that in case of future Con 
 ventions for the amendment of the Constitution, 
 the basis of representation is to be in accordance 
 with the existing representative basis. That is 
 not my understanding of this proposition. The 
 existing basis of representation is contemplated in 
 the first amendment, but the second provides for 
 Conventions to be held hereafter in any way that 
 the legislature may determine. 
 
 Mr. SARGENT. I am aware, Sir, that the 
 second resolution places the power in the legisla 
 ture to call Conventions in any manner they may 
 
 determine. But, Sir, you provide that for the 
 Convention to be called in 1873 you shall take 
 the basis of representation that has been estab 
 lished for the House of Representatives ; and, 
 Sir, I do not understand the second resolution as 
 changing the principles, or as abridging the power 
 of the minority in the least, to adopt that as the 
 basis of any other Convention. 
 
 But, Sir, to proceed. I was saying that I did 
 not propose to repeat the arguments which I had 
 the honor of presenting to the Convention on a 
 former occasion, when this subject was under 
 consideration. Two amendments have been made 
 in the system since that time ; one reducing the 
 mean increasing ratio from 5,000 to 4,000 for 
 each additional representative above the second, 
 which will give eight additional representatives ; 
 and the other striking out the limitation ; so that 
 the number of representatives will be increased 
 at every decennial period. 
 
 These amendments affect the general provis 
 ions, or the practical operations of the system so 
 little, that the considerations which I have here 
 tofore presented, apply with equal force to the 
 system in its present amended form. But, Sir, 
 let us examine more critically this basis of repre 
 sentation which we have adopted, in order that 
 we may ascertain whether it be such a basis as 
 ought to be adopted as the basis of future Con 
 ventions to amend the Constitution. 
 
 In the remarks which I took occasion to make 
 when this subject was under discussion before, I 
 stated that, under the present existing Constitu 
 tion, a change of sixteen representatives out of 
 three hundred and seventy-two from four coun 
 ties to four other counties, would equalize the 
 present representation between the several coun 
 ties. It has been contended, however, by the 
 friends of this amendment, that voters would be 
 a more just basis than population. I have pre 
 pared the following table, in order to ascertain 
 the inequalities of the present system under the 
 application of that rule : 
 
 Suffolk, . 
 
 Essex, 
 
 Middlesex, 
 
 Worcester, 
 
 Hampshire, 
 
 Hampden, 
 
 Franklin, . 
 
 Berkshire, 
 
 Norfolk, . 
 
 Bristol, 
 
 Plymouth, 
 
 Barnstable, 
 
 Apportionment. 
 
 . 46 4-10 
 
 . 44 7-10 
 
 . 58 4-10 
 
 . 55 6-10 
 
 . 15 6-10 
 
 . 19 3-10 
 
 . 16 2-10 
 
 . 21 9-10 
 
 . 28 
 
 . 26 5-10 
 
 . 21 4-10 
 
 13 3-10 
 
 Equal Pronortion 
 on voters. 
 
 46 1-10 
 49 6-10 
 56 1-10 
 52 
 
 15 1-10 
 19 4-10 
 14 2-10 
 19 8-10 
 28 3-10 
 26 9-10 
 25 3-10 
 14 9-10 
 
68th day.] CONSTITUTIONAL CONVENTIONS. 491 
 
 Wednesday,] SUMNEK. [July 27th. 
 
 Equal Proportion 
 Apportionment. on voters. 
 
 Dukes, . . 2 4-10 1 9-10 
 Nantucket, .3 2 7-10 
 
 each county would have, if placed upon an equal 
 footing with the county of Franklin : 
 
 Equal Proportion 
 Apportionment. with Franklin. 
 
 Franklin, . . 21 2-10 21 2-10 
 Hampshire, . 20 8-10 23 5-10 
 Hampden, . 23 34 4-10 
 Berkshire, . 28 2-10 33 5-10 
 Worcester, . 61 2-10 86 9-10 
 Middlesex, . 62 8-10 106 9-10 
 Essex, . . 46 8-10 87 2-10 
 Norfolk, . . 30 2-10 53 1-10 
 Bristol, . . 29 6-10 51 4-10 
 Plymouth, . 23 8-10 37 4-10 
 Barnstable, . 14 6-10 23 3-10 
 Dukes, . . 2 6-10 3 
 Nantucket, . 3 6 
 Suffolk, . . 37 6-10 100 
 
 372 7-10 372 3-10 
 Loss by fractions, . . .4-10 
 
 By this table it will be seen that the four coun 
 ties which have sixteen more than their propor 
 tion, on population, have only eight and a frac 
 tion more than their proportion on voters ; and it 
 shows also that the difference between population 
 and voters, as a basis, is not so great as some gen 
 tlemen have imagined. But, Sir, let us proceed 
 to an examination of the system which has been 
 adopted by the Convention. The following table 
 will show the number of representatives to 
 which each county is entitled under the first ap 
 portionment, as also the number to which each 
 county would be entitled if apportioned equally 
 upon population : 
 
 Equality on 
 By Butler s Plan. Population. 
 
 Suffolk, . . 37 6-10 60 7-10 
 Essex, . . 46 8-10 52 9-10 
 Middlesex, . 62 8-10 64 8-10 
 Worcester, . 61 2-10 52 7-10 
 Hampshire, . 20 8-10 14 2-10 
 Hampden, . 23 20 9-10 
 Franklin, . . 21 2-10 12 8-10 
 Berkshire, . 28 2-10 20 3-10 
 Norfolk, . . 30 2-10 32 2-10 
 Bristol, . . 29 6-10 31 2-10 
 Plymouth, . 23 8-10 22 7-10 
 Barnstable, . 14 6-10 14 1-10 
 Dukes, . . 2 6-10 1 8-10 
 Nantucket, .3 3 6-10 
 
 405 4-10 667 8-10 
 
 Thus it will be seen, that the county of Frank 
 lin gets in a House of 405 4-10 members, the 
 full proportion she would be entitled to in a 
 House of 667. 
 But it may be objected, that it is unfair to pre 
 sent one extreme of the case, without exibiting 
 the other also. To meet this objection, I have 
 prepared the following table, taking the county 
 of Suffolk as a basis. That county elects one 
 representative for every 3,876 inhabitants, and the 
 following table shows what each county would be 
 entitled to, if placed upon an equal footing with 
 that county : 
 
 Equal proportion 
 Apportionment. with Suftblk. 
 
 Suffolk, . . 37 6-10 37 6-10 
 Essex, . . 46 8-10 32 8-10 
 Middlesex, . 62 8-10 40 1-10 
 Worcester, . 61 2-10 32 6-10 
 Hampshire, . 20 8-10 8 8-10 
 Hampden, . .23 12 9-10 
 Franklin, . . 21 2-10 7 9-10 
 Berkshire, . . 28 2-10 12 6-10 
 Norfolk, . . 30 2-10 19 9-10 
 Bristol, . . 29 6-10 19 3-10 
 Plymouth,. . 23 8-10 14 
 Barnstable, . 14 6-10 8 7-10 
 Dukes, . . 2 6-10 1 1-10 
 Nantucket, .3 2 2-10 
 
 405 4-10 404 9-10 
 Loss by fractions, . . .5-10 
 
 By the foregoing table it will be seen that the 
 same four counties of Worcester, Hampshire, 
 Franklin and Berkshire, are permitted to elect 
 131 4-10 members, while they would be entitled 
 to 100 4-10 as their equal proportion of popula 
 tion ; and I also find that they would be entitled 
 to only 107 4-10 on voters, thus giving them on 
 population 31, and on voters 23 5-10 more than 
 their equal proportion. But, Sir, this does not 
 exhibit clearly the inequalities of the proposed 
 amendment. I have prepared another table, tak 
 ing the county of Franklin as the basis, which 
 will show more distinctly the inequalities of this 
 system. That county is entitled to elect 21 2-10 
 representatives, or one for every 1,457 inhabitants. 
 The following table exhibits the number which 
 
 405 4-10 250 5-10 
 
 Thus, the county of Suffolk is allowed in a 
 House of 405 4-10, no more members than would 
 be her equal proportion of a House of only 250 
 5-10 members. But, Sir, let us leave this cor 
 rupt and corrupting county of Suffolk, this 
 
492 
 
 CONSTITUTIONAL CONVENTIONS. 
 
 [68th day. 
 
 Wednesday,] 
 
 SUMNER. 
 
 [July 27th. 
 
 immense and dangerous power of centralization, 
 which has been wielded with such crushing force 
 over this Convention, this congregated mass of 
 foreign population, which gentlemen seem so to 
 dread that they are unwilling they shall exercise 
 any right, or any privilege, but the right to 
 breathe, and the privilege to toil. Let us leave 
 all these out of the question, and proceed to insti 
 tute a comparison between different agricultural 
 portions of the State. If you combine the popu 
 lation of the five western counties, ( to wit, Wor 
 cester, Hampden, Hampshire, Franklin and 
 Berkshire,) they are entitled to elect 154 4-10 
 representatives, or one for every 1,883 inhabitants. 
 Now, if you were to give to the counties of Mid 
 dlesex and Essex, a representative for the same 
 number of inhabitants, they would be entitled to 
 elect 150 2-10, while they now get but 109 6-10. 
 They would be entitled to 40 6-10 more than 
 they get under the proposed amendment. 
 
 The same proportion would give the six south 
 ern counties, instead of 103 8-10, which they 
 now get, 134 8-10, or an increase of thirty-one 
 members. But where have we actually placed 
 the power ? 
 
 I find there are eighty-four cities and towns, 
 with a population of 651,245, which will, under 
 this system, elect one hundred and ninety-four 
 members, or one for every 3,356 inhabitants, 
 while the remaining two hundred and thirty- 
 seven towns, with a population of 322,470, being 
 2,101 less than one- third the population of the 
 State, will elect 205 members annually, or one for 
 every 1,577 inhabitants, being a clear majority of 
 eleven, and in the valuation year, they will have 
 thirty-two additional, making their majority on 
 that year forty- three, equal to an average annual 
 representation of 211 4-10, or 174-10 majority. 
 
 The estimate does not include the seven towns 
 which have been incorporated since 1850, and 
 which will increase that majority. 
 
 Now, Sir, there is where you have placed the 
 power in the House of Representatives, and we 
 are asked to adopt a measure to perpetuate that 
 power in the hands of this minority, for all com 
 ing time. Sir, if this was a mere temporary 
 measure, as some gentlemen have professed to 
 believe it to be one which the people could alter 
 or annul, at pleasure it would be a matter of 
 much less consequence. But when you propose 
 to place in this minority a self-perpetuating pow 
 er, when you propose to place in their hands an 
 uncontrolled and uncontrollable power to dictate 
 all future amendments to the Constitution, a 
 power far above and beyond the reach of the 
 people, save by revolution, it becomes a ques 
 tion of the greatest magnitude. Sir, do men 
 
 willingly yield up power, when once placed 
 within their grasp ? The history of the world 
 proves they do not. But I need not go beyond 
 the history of this Convention, to prove that doc 
 trine. 
 
 Sir, this Convention is controlled by a majority 
 of delegates that represent only a minority of the 
 people ; and what is the consequence ? Why, 
 when the question was taken on the introduction 
 of an equal system of representation, as presented 
 by the gentleman from Taunton, (Mr. Morton,) 
 that measure was defeated by a majority of 81 
 votes, the vote being ayes, 117 ; noes, 198. And 
 yet the 117 ayes represented a constituency more 
 than thirty-five thousand greater than was repre 
 sented by the 198 noes. Now, Sir, if we find on 
 the part of the majority of this Convention, rep 
 resenting, as they do, only a minority of the peo 
 ple, no disposition to yield up any portion of the 
 power they now possess, for the purpose of estab 
 lishing an equal system of representation, a sys 
 tem which many of them acknowledge to be not 
 only just, but strictly in accordance with the 
 fundamental principles of a republican govern 
 ment, can we expect that those who come after 
 them will more willingly yield up the still great 
 er power with which you are about to invest 
 them ? 
 
 Sir, to whom are you to look to restore this 
 power into the hands of the majority of the 
 people ? You are to look to this very minority 
 in whose hands you now place it. For you can 
 have no special Convention that the minority do 
 not see fit to grant you ; and you can have no 
 amendments to your Constitution, that that mi 
 nority do not approve. True, the people will 
 have left in their hands the power to reject any 
 amendments that such Convention may see 
 fit to propose. But I submit, that they will have 
 reserved in their hands no constitutional power 
 to make any amendments to their Constitution, 
 which they may wish to make, except such as 
 that minority shall graciously condescend to per 
 mit them to make. And the gentleman for 
 Marshficld will perceive that it makes no kind of 
 difference, that the power will be given to the 
 legislature to call a Convention at any time, and 
 to establish the basis of representation for that 
 Convention ; for it will be just such a basis as 
 the minority pleases to adopt, and no other. 
 
 It is no answer to say " there is no danger that 
 the power will ever be abused." It is our duty, 
 in framing a Constitution, so to apportion the 
 power, if possible, that it cannot be abused. 
 There is danger, there is always great danger, 
 when the many place power unconditionally in 
 the hands of the few. I trust this Convention 
 
68th day.] 
 
 CONSTITUTIONAL CONVENTIONS. 
 
 493 
 
 Wednesday,] 
 
 GRISWOLD HALLETT LORD. 
 
 [July 27th. 
 
 will pause and consider this matter well, before 
 they adopt a measure by which all power over 
 their Constitution will be yielded into the hands 
 of a mere fraction of a minority. If this act 
 shall be consummated, the majority of the people 
 of this Commonwealth will have no more power 
 "to alter and amend their Constitution of gov 
 ernment," than had our fathers, as subjects of 
 the British crown. The only power the only 
 right they will have reserved to themselves, will 
 be the power of supplication, or the right of rev 
 olution. 
 
 Mr. GRISWOLD, for Erving. I move to 
 amend the first resolution, by striking out from 
 the twentieth line the word "and" and insert 
 ing after the word " cities " the words " and 
 districts," so that it will read " towns, cities and 
 districts;" also in the next line, to insert after 
 the word " elect," the words " in any year of that 
 decennial period," so that it will read " and there 
 after, on the first Monday of March ensuing, 
 meetings shall be held and delegates shall be 
 chosen, in all the towns, cities and districts in the 
 Commonwealth, in the manner and number then 
 provided by law for the election of the largest 
 number of representatives, which the towns, cities 
 and districts shall then be entitled to elect in any 
 year of that decennial period." 
 
 The question being taken, the amendments 
 were adopted. 
 
 Mr. GRISWOLD. I move, also, to strike out 
 from the twenty-second line of the first resolve, 
 the word " Monday " and insert the word " Wed 
 nesday," so that if amended, it will read " and 
 such delegates shall meet in Convention at the 
 State House, on the first Wednesday of May next 
 ensuing," &c. 
 
 The amendment was agreed to. 
 
 Mr. HALLETT, for Wilbraham. There is a 
 verbal amendment which I desire to make. I 
 move to strike out from the tenth line, the words 
 " in the newspapers in which the laws are offi 
 cially published," and insert after the word 
 " shall " the word " officially," so that if amended, 
 it will read " who shall thereupon examine the 
 same, and shall officially publish the number of 
 yeas and nays," &c. 
 
 The question being taken, the amendment 
 was agreed to. 
 
 Mr. LORD, of Salem. I move to amend the 
 first resolution, by inserting after the word " affir 
 mative " in the thirteenth line, the words " and 
 such majority shall be at least equal to one-half of 
 the whole number of votes cast for the governor 
 at such election." If gentlemen have observed 
 the phraseology of this resolution, they will have 
 noticed, that without any action upon the part of 
 
 the government of the Commonwealth, the voters 
 of the several towns will be called upon by the 
 selectmen to vote upon the question whether 
 there shall be a Convention to revise the Consti 
 tution. Now, Sir, without making any preten 
 sions to the gift of prophesy, I venture to say, that 
 when the time arrives for this proposition to be 
 voted upon, but very few of the people will be 
 aware of it, and consequently will not vote for 
 it. Indeed, Sir, I believe the first period pro 
 vided in the Constitution for the calling of a 
 Convention, was allowed to pass by without any 
 attention being paid to it whatever, and I submit 
 whether in the present instance the same difficulty 
 will not occur. It may be, however, that in some 
 few of the towns, the people will be aware of the 
 existence of such a proposition, and vll vote for 
 it. But, I appeal to the good sense of this body, 
 if a Convention ought to be called upon such a 
 basis as that the votes which may be deposited 
 in half a dozen towns. I know that it is said, 
 that those who do not vote against the proposition, 
 assent to it, but in the matter of calling a Con 
 vention to revise the fundamental law of the 
 Commonwealth, I do not think that a sound 
 principle. I think that of those who go to the 
 polls when the time shall arrive and vote, at least 
 a majority should vote in favor of calling a Con 
 vention. Under this provision, as expressed in 
 the resolution now under consideration, it may 
 be the case that a hundred men may call a Con 
 vention, if no more vote for it. Such a state of 
 affairs would of course result only from inatten 
 tion, but that very inattention and negligence, is 
 brought about by the fact that a Convention is 
 not needed. When the public mind is quiet, 
 when public affairs are undisturbed, when the 
 people of the Commonwealth are enjoying pros 
 perity in all branches of industry, when nobody 
 feels the hand of government pressing heavily 
 upon him, then there comes along unannounced 
 and unheralded this day on which the votes of 
 the people are to determine whether or not there 
 shall be a Convention. And yet, notwithstanding 
 the people have no desire for it, five hundred 
 persons who may happen to be aware of such a 
 proposition, may, by depositing their votes, cause 
 a Convention to be called, and with it all the 
 necessary or unnecessary attendant expense. I 
 hope, Sir, that we shall never consent to adopt 
 any such self-acting, self- regulating provision, 
 founded upon a distrust of every officer in the 
 Commonwealth, except the Secretary of State, 
 but that we shall amend it in such a manner 
 that it shall receive a respectable number of votes, 
 if any at all. I am aware that this amendment 
 is to be voted down immediately ; it has more 
 
494 
 
 CONSTITUTIONAL CONVENTIONS. 
 
 [68th day. 
 
 Wednesday,] 
 
 LORD HOPKINSON BATES GARDNER NAYSON. 
 
 [July 27th. 
 
 than once been my fortune to suggest views here, 
 which men quietly tell me ought not to be adopted, 
 but yet they do not see exactly on what grounds 
 to base their advice ; and such is the case on the 
 present occasion ; gentlemen cannot see how 
 they can answer the suggestions I have made, 
 with any show of reason or argument, but they 
 have a way to get rid of them more quietly, and it 
 is the way in which all questions are to be settled. 
 I deemed it my duty, however, to present these 
 views, and to make the proposition I did, that 
 when the day arrives for the question of the 
 calling of a Convention to be decided, unat 
 tended, as it will be, by any official announce 
 ment, unaccompanied by any call upon the peo 
 ple to assemble and vote upon that question, we 
 should provide that at least the votes of a majority 
 of those who go to the polls, shall be in favor of 
 calling such a Convention, so that it may not be 
 sprung upon the people of the Commonwealth 
 by a few, more diligent, more active individuals 
 than others, who may be aware of the existence 
 of such a provision in the Constitution. 
 
 Mr. HOPKINSON, of Boston. I would in 
 quire of the gentleman from Salem, whether some 
 doubt may not exist whether the language would 
 not imply that such a majority shall be more than 
 half. 
 
 Mr. LORD. I suppose it does net make much 
 difference what the words are ; the result will be 
 the same. The same abiguity occurred to me, 
 but I supposed that the Convention understood it. 
 
 Mr. BATES, of Plymouth, demanded the 
 previous question. 
 
 Mr. LORD. Inasmuch as that applies to all 
 the resolutions embraced in this Report, and as I 
 know of no gentlemen who desire to make any 
 remarks, or introduce any amendment, I call 
 for the yeas and nays upon the previous ques 
 tion. 
 
 The question then being taken on ordering the 
 yeas and nays, upon a division ayes, 41 ; noes, 
 136 one-fifth voting in the affirmative, the yeas 
 and nays were ordered. 
 
 Mr. GARDNER, of Boston, moved that the 
 Convention do now adjourn. 
 
 The motion was not agreed to, there being upon 
 a division ayes, 66 ; noes, 90. 
 
 So the Convention refused to adjourn. 
 
 The PRESIDENT. The question is, Shall 
 the main question be now put ? " Upon this 
 question the yeas and nays have been ordered. 
 The Secretary will call the roll. 
 
 The Secretary commenced the call. 
 
 Mr. BATES, of Plymouth. I will withdraw 
 the motion for the previous question. 
 
 Mr. BIRD, of Walpole. Can the demand for 
 
 the previous question be withdrawn after the yeas 
 and nays have been ordered ? 
 
 The PRESIDENT. It may, by general con 
 sent, be withdrawn. 
 
 Mr. BIRD. I object. 
 
 Mr. LORD. I believe it has been the uniform 
 practice of this Convention, although it is differ 
 ent in congress, to allow the mover to withdraw 
 a motion, unless objection be made. I am per 
 fectly willing, however, to spend an hour in tak 
 ing the yeas and nays, if the Convention desire 
 it. 
 
 The PRESIDENT. The Chair would state, 
 in regard to the withdrawal of the motion of the 
 gentleman from Plymouth, (Mr. Bates,) that, by 
 an express rule of the Convention, the gentleman 
 has a right to withdraw it. The rule is as fol 
 lows : 
 
 " After a motion is stated or read by the Presi 
 dent, it shall be deemed to be in the possession 
 of the Convention, and shall be disposed of by 
 vote of the Convention, but the mover may with 
 draw it at any time before a decision or amend 
 ment, except a motion to reconsider, which shall 
 not be withdrawn after the time has elapsed with 
 in which it could originally be made." 
 
 Mr. BATES. I have no particular wish to 
 withdraw it. 
 
 Mr. DANA, for Manchester. Is it in order to 
 move an adjournment ? 
 
 The PRESIDENT. The Chair rules that it 
 is out of order to entertain any motion whatever. 
 
 Mr. GARDNER, of Boston. I supposed that 
 a motion to adjourn was always in order. 
 
 The PRESIDENT. The Secretary has com 
 menced calling the roll, and he will proceed with 
 the call. 
 
 Mr. NAYSON, of Amesbury. I rise to ask 
 information of the Chair. I understand, that 
 after the President has given the order to the 
 Secretary to call the roll, 110 debate or motion can 
 intervene ; and that, therefore, the motion of the 
 gentleman for Manchester cannot be entertained 
 at this time. Is that the decision of the Chair ? 
 
 The PRESIDENT. The Chair will state the 
 circumstances. The question was stated as 
 usual ; the Secretary was directed to call the 
 roll, and commenced to call the roll before the 
 gentleman for Manchester arose and addressed 
 the Chair. 
 
 Mr. SCHOULER, of Boston. In my judg 
 ment, the decision of the Chair is correct. 
 
 The PRESIDENT. The Chair will state the 
 question once more. The motion was made by the 
 gentleman from Plymouth, (Mr. Bates,) for the 
 previous question ; pending that question, the gen 
 tleman from Salem (Mr. Lord) moved, that on that 
 
68th day.] CONSTITUTIONAL CONVENTIONS. 495 
 
 Wednesday,] LORD YEAS NAYS ABSENT. [July 27th. 
 
 motion the yeas and nays be taken ; that motion 
 
 Rantoul, Robert Sumner, Increase 
 
 was agreed to, and a motion was made by the gen 
 tleman from Boston, (Mr. Gardner,) that the Con 
 vention adjourn, which did not prevail. The 
 
 Rawson, Silas Swain, Alanson 
 Richardson, Samuel H. Thompson, Charles 
 Ring, Elkanah, Jr. Tilton, Horatio W. 
 Ross, David S. Wallis, Freeland 
 
 Secretary was requested to call the roll, and com 
 
 Royce, James C. Walker, Amasa 
 
 menced to do so, when the delegate for Manches 
 
 Sprague, Melzar Ward, Andrew H. 
 
 ter, (Mr. Dana,) rose and addressed the Chair ; 
 
 Spooner, Samuel W. Weston, Gershom B. 
 
 the Chair recognized him, and ruled that it was 
 not in order to make any motion whatever, and 
 
 Stevens, Charles G. Whitney, Daniel S. 
 Stevens, Granville Whitney, James S. 
 Stiles, Gideon Wood, Charles C. 
 
 he still believes that decision to be correct. The 
 
 Sumner, Charles Wood, Otis 
 
 Secretary will proceed to call the roll. 
 
 
 Mr. LORD. As we have no printed orders, I 
 
 NAYS. 
 
 would inquire of the Chair whether the main 
 question is upon ordering the resolutions to a 
 
 Adams, Benjamin P. Houghton, Samuel 
 Andrews, Robert Jenkins, John 
 
 final passage, or to a second reading merely ? 
 
 Bartlett, Sidney Kellogg, Giles C. 
 
 The PRESIDENT. The main question is 
 
 Bradbury, Ebenezer Kendall, Isaac 
 
 upon ordering them to a second reading. 
 The question then being taken by yeas and 
 nays, on ordering the previous question, they re 
 
 Bradford, William J. A. Knight, Joseph 
 Brinley, Francis Lincoln, Fred. W., Jr. 
 Briggs, George N. Lord, Otis P. 
 Buck, Asahel Miller, Seth, Jr. 
 
 sultedyeas, 106 ; nays, 33 as follows : 
 
 Bullock, Rufus Mixter, Samuel 
 
 
 Carter, Timothy W. Morey, George 
 
 YEAS. 
 
 Cogswell, Nathaniel Plunkett, William C. 
 
 
 Cook, Charles E. Pomroy, Jeremian 
 
 Allen, Parsons Gates, Elbridge 
 
 Doming, Elijah S. Preston, Jonathan 
 
 Allis, Josiah Gilbert, Wanton C. 
 
 Ely, Homer Sikes, Chester 
 
 Alvord, D. W. Giles, Charles G. 
 
 Giles, Joel Simmons, Perez 
 
 Austin, George Goulding, Jason 
 Baker, Hillel Green, Jabez 
 
 Hale, Nathan White, Benjamin 
 Heard, Charles 
 
 Bancroft, Alpheus Griswold, Josiah W. 
 
 
 Bates, Moses, Jr., Griswold, Whiting 
 
 ABSEXT 
 
 Beal, John Hallett, B. F. 
 
 
 Bennett, William, Jr. Hapgood, Lyman W. 
 
 Abbott, Alfred A. Bronson, Asa 
 
 Bird, Francis W. Hapgood, Seth 
 
 Abbott, Josiah G. Brown, Adolphus F. 
 
 Boutwell, George S. Harmon, Phineas 
 
 Adams, Shubael P. Brown, Alpheus R. 
 
 Breed, Hiram N. Hawkes, Stephen E. 
 
 Aldrich, P. Emory Brown, Artemas 
 
 Brown, Hammond Hayden, Isaac 
 
 Allen, Charles Brownell, Frederick 
 
 Brown, Hiram C. Heath, Ezra, 2d 
 
 Allen, James B. Bullen, Amos H. 
 
 Brownell, Joseph Hood, George 
 
 Allen, Joel C. Burlingame, Anson 
 
 Bryant, Patrick Howard, Martin 
 
 Alley, John B. Butler, Benjamin F. 
 
 Bumpus, Cephas C. Howland, Abraham II. 
 
 Appleton, William Cady, Henry 
 
 Case, Isaac Hoyt, Henry K. 
 
 Aspinwall, William Caruthers, William 
 
 Churchill, J. McKean Huntiiigton, George H. 
 
 Atwood, David C. Chandler, Amariah 
 
 Clark, Ransom Hurlbut, Moses C. 
 
 Ayres, Samuel Chapin, Chester W. 
 
 Clark, Salah Hyde, Benjamin D. 
 
 Ballard, Alvah Chapin, Daniel E. 
 
 Cole, Sumner Jacobs, John 
 
 Ball, George S. Chapin, Henry 
 
 Davis, Charles G. Knight, Jefferson 
 
 Banks, Nathaniel P., Jr. Childs, Josiah 
 
 Davis, Isaac Knox, Albert 
 
 Barrows, Joseph Choate, Rufus 
 
 Day, Gilman Ladd, Gardner P. 
 
 Bartlett, Russel Clark, Henry 
 
 Dean, Silas Langdon, Wilber C. 
 
 Barrett, Marcus Clarke, Alpheus B. 
 
 Denton, Augustus Leland, Alden 
 
 Bates, Eliakim A. Clarke, Stillman 
 
 Duncan, Samuel Loomis, E. Justin 
 
 Beach, Erasmus D. Cleverly, William 
 
 Eames, Philip Merritt, Simeon 
 
 Beebe, James M. Coggin, Jacob 
 
 Easland, Peter Monroe, James L. 
 
 Bell, Luther V. Cole, Lansing J. 
 
 Easton, James, 2d Morton, Elbridge G. 
 
 Bennett, Zephaniah Conkey, Ithamar 
 
 Eaton, Calvin D. Morton, William S. 
 
 Bigelow, Edward B. Cooledge, Henry F. 
 
 Edwards, Samuel Nash, Hiram 
 
 Bigelow, Jacob Copeland, Benjamin F. 
 
 Ely, Joseph M. Newman, Charles 
 
 Bishop, Henry W. Crane, George B. 
 
 Fay, Sullivan Osgood, Charles 
 
 Blagden, George W. Cressy, Oliver S. 
 
 Fitch, Ezekiel W. Packer, E. Wing 
 
 Bliss, Gad O. Crittenden, Simeon 
 
 French, Charles A. Paine, Benjamin 
 
 Bliss, William C. Crockett, George W. 
 
 Frothirgham, R d, Jr. Partridge, John 
 
 Booth, William S. Crosby, Leander 
 
 Gale, Luther Penniman, John 
 
 Boutwell, Sewell Cross, Joseph W. 
 
 Gardner, Henry J. Phelps, Charles 
 
 Braman, Milton P. Crowell, Seth 
 
 Gardner, Johnson Pierce, Henry 
 
 Brewster, Osmyn Crowninshield, F. B. 
 
496 
 
 CONSTITUTIONAL CONVENTIONS. [69th day. 
 
 Thursday,] 
 
 ABSENT. [July 28th. 
 
 Cummin gs, Joseph 
 
 Huntington, Asahel Putnam, George Tilton, Abraham 
 
 Curtis, Wilbur 
 
 Huntington, Charles P. 
 
 Putnam, John A. Tower, Ephraim 
 
 Cushman, Henry W. 
 
 Hurlburt, Samuel A. 
 
 Read, James Train, Charles R. 
 
 Cushman, Thomas 
 
 Ide, Abijah M., Jr. 
 
 Reed, Sampson Turner, David 
 
 Cutler, Simeon N. 
 
 Jackson, Samuel 
 
 Rice, David Turner, David P. 
 
 Dana, lliehard II., Jr. 
 
 James, William 
 
 Richards, Luther Tyler, John S. 
 
 Davis, Ebenezer 
 
 Jenks, Samuel II. 
 
 Richardson, Daniel Tyler, William 
 
 Davis, John 
 
 Johnson, John 
 
 Richardson, Nathan Underwood, Orison 
 
 Davis, Robert T. 
 
 Kellogg, Martin R. 
 
 Rockwell, Julius Upham, Charles W. 
 
 Davis, Solomon 
 
 Keyes, Edward L. 
 
 llockwood, Joseph M. Upton, George B. 
 
 Dawes, Henry L. 
 
 Kimball, Joseph 
 
 Rogers, John Viles, Joel 
 
 Dehon, William 
 
 Kingman, Joseph 
 
 Sampson, George R. Vinton, George A. 
 
 Dennison, Hiram S. 
 
 Kinsman, Henry W. 
 
 Sanderson, Amasa Walcott, Samuel B. 
 
 DeWitt, Alexander 
 
 Knight, Hiram 
 
 Sanderson, Chester Wales, Bradford L. 
 
 Doane, James C. 
 
 Knowlton, Charles L. 
 
 Sargent, John Wallace, Frederick T. 
 
 Dorman, Moses 
 
 Knowlton, J. S. C. 
 
 Schouler, William Walker, Samuel 
 
 Dunham, Bradish 
 
 Knowlton, William II. 
 
 Sheldon, Luther Warner, Marshal 
 
 Durgin, John M. 
 
 Kuhn, George II. 
 
 Sherman, Charles Warner, Samuel, Jr. 
 
 Earle, John M. 
 
 Ladd, John S. 
 
 Sherril, John Waters, Asa H. 
 
 Eaton, Lilley 
 
 Lawrence, Luther 
 
 Simonds, John W. Weeks, Cyrus 
 
 Edwards, Elisha 
 
 Lawton, Job G., Jr. 
 
 Sleeper, John S. Wetmore, Thomas 
 
 Eustis, William T. 
 
 Lincoln, Abishai 
 
 Smith, Matthew Wheeler, William F. 
 
 Farwell, A. G. 
 
 Little, Otis 
 
 Souther, John White, George 
 
 Fellows, James K. 
 
 Littlefield, Tristram 
 
 Stacy, Eben II. Wilbur, Daniel 
 
 Fisk, Lyman 
 
 Livermore, Isaac 
 
 Stetson, Caleb Wilbur, Joseph 
 
 Fiske, Emery 
 
 Lothrop, Samuel K. 
 
 Stevens, Joseph L., Jr. Wilder, Joel 
 
 Foster, Aaron 
 
 Loud, Samuel P. 
 
 Stevens, William Wilkins, John H. 
 
 Foster, Abram 
 
 Lowell, John A. 
 
 Stevenson, J. Thomas Wilkinson, Ezra 
 
 Fowle, Samuel 
 
 Marble, William P. 
 
 Storrow, Charles S. Williams, Henry 
 
 Fowler, Samuel P. 
 
 Marcy, Laban 
 
 Strong, Alfred L. Williams, J. B. 
 
 Freeman, James M. 
 
 Marvin, Abijah P. 
 
 Stutson, William Wilson, Henry 
 
 French, Charles II. 
 
 Marvin, Thcophilus R. 
 
 Taber, Isaac C. Wilson, Milo 
 
 French, Rodney 
 
 Mason, Charles 
 
 Taft, Arnold Wilson, Willard 
 
 French, Samuel 
 
 Meader, Reuben 
 
 Talbot, Thomas Winn, Jonathan B. 
 
 Gilbert, Washington 
 
 Moore, James M. 
 
 Taylor, Ralph Winslow, Levi M. 
 
 Gooch, Daniel W. 
 
 Morss, Joseph B. 
 
 Thayer, Joseph Wood, Nathaniel 
 
 Gooding, Leonard 
 
 Morton, Marcus 
 
 Thayer, Willard, 2d Wood, William H. 
 
 Gould, Robert 
 
 Morton, Marcus, Jr. 
 
 Thomas, John W. Woods, Josiah B. 
 
 Goulding, Dalton 
 
 Nayson, Jonathan 
 
 Tileston, Edmund P. Wright, Ezekiel 
 
 Graves, John W. 
 Gray, John C. 
 
 Nichols, William 
 Norton, Alfred 
 
 Absent and not voting, 280. 
 
 Greene, William B. 
 Greenleaf, Simon 
 
 Noyes, Daniel 
 Nute, Andrew T. 
 
 So the demand for the previous question was 
 
 Hadley, Samuel P. 
 
 Ober, Joseph E. 
 
 sustained, and the main question ordered to be put. 
 
 Hale, Artemas 
 
 Oliver, Henry K. 
 
 The question then being on the adoption of the 
 
 Hall, Charles B. 
 
 Orcutt, Nathan 
 
 amendment of the gentleman from Salem, (Mr. 
 
 Hammond, A. B. 
 
 Orne, Benjamin S. 
 
 Lord,) to the first resolve, it was taken, and de 
 
 Haskell, George 
 Haskins, William 
 Hathaway, Elnathan P. 
 
 Paige, James W. 
 Paine, Henry 
 Park, John G. 
 
 cided in the negative. 
 So the amendment was rejected. 
 
 Hay ward, George 
 
 Parker, Adolphus G. 
 
 The question recurred on ordering the resolves, 
 
 Hazewell, Charles C. 
 
 Parker, Joel 
 
 as amended, to a second reading, and being taken, 
 
 Henry, Samuel 
 
 Parker, Samuel D. 
 
 it was decided in the affirmative. 
 
 Hersey, Henry 
 Hewes, James 
 Hewes, William H. 
 
 Parris, Jonathan 
 Parsons, Samuel C. 
 Parsons, Thomas A. 
 
 On motion by Mr. EAMES, of Washington, 
 the Convention then, at seven o clock, adjourned. 
 
 Heywood, Levi 
 
 Payson, Thomas E. 
 
 
 Hillard, George S. 
 
 Peabody, George 
 
 
 Hinsdale, William 
 
 Peabody, Nathaniel 
 
 
 Hobart, Aaron 
 
 Pease, Jeremiah, Jr. 
 
 
 Hobart, Henry 
 
 Perkins, Daniel A. 
 
 
 Hobbs, Edwin 
 
 Perkins, Jesse 
 
 THURSDAY, July 28, 1853. 
 
 Holder, Nathaniel 
 Hooper, Foster 
 Hopkinson, Thomas 
 Hubbard, William J. 
 
 Perkins, Jonathan C. 
 Perkins, Noah C. 
 Phinney, Sylvanus B. 
 Pool, James M. 
 
 The Convention assembled pursuant to ad 
 journment, and was called to order by the Presi 
 dent, at nine o clock. 
 
 Hunt, Charles E. 
 
 Powers, Peter 
 
 Prayer by the Chaplain. 
 
 Hunt, William 
 
 Prince, F. O. 
 
 The journal of yesterday was read. 
 
69th day.] 
 
 BILL OF RIGHTS, &c. 
 
 497 
 
 Thursday,] 
 
 WHEELER WILSON BRIGGS GREENLEAF MILLER. 
 
 [July 28th. 
 
 Reconsideration. 
 
 Mr. WHEELER, of Lincoln, moved a recon 
 sideration of the vote by which the resolve on the 
 subject of Imprisonment for Debt, was passed. 
 
 The PRESIDENT. The motion will be placed 
 upon the Orders of the Day for to- morrow. 
 
 Mr. WHEELER. I should be glad to have 
 the rule suspended, so that the motion may be 
 placed upon the Orders of the Day for to-day. 
 
 The PRESIDENT. The rule may be sus 
 pended so that the motion may be now considered, 
 but the Orders of the Day are already made up. 
 
 Mr. WHEELER. I would prefer that the 
 matter should be considered in a full house. 
 
 Mr. WILSON, of Natick. I move that the 
 rule be suspended so that the motion may be con 
 sidered at this time. 
 
 The motion was, upon a division ayes, 80 ; 
 noes, 22 decided affirmatively. 
 
 The question recurred upon the motion of the 
 gentleman from Lincoln, to reconsider the vote by 
 which the resolve on the subject of imprisonment 
 for debt was finally passed. 
 
 Mr. BRIGGS, of Pittsfield. I suppose the 
 object of the gentleman who moved the reconsid 
 eration, is, that it shall go upon the Orders of the 
 Day, for to-day, somewhere, so that it may be 
 considered when the house is full. I hope it will 
 not be considered now, and I suggest that it be 
 placed last on the Orders of the Day for to-day. 
 
 The PRESIDENT. If no objection be made, 
 it will be so disposed of. 
 
 No objection was made. 
 
 On motion of Mr. WILSON, of Natick, the 
 Convention proceeded to the consideration of the 
 Orders of the Day, the first item being the resolve 
 on the subject of the 
 
 Rights of the Jury. 
 The question being on its final passage, 
 
 Mr. GREENLEAF, of Cambridge. I would 
 not trouble the Convention, if I did not think 
 that the operation of this resolve is probably mis 
 understood. If I am wrong, I can be easily set 
 right. I understand it in terms to go to this ex 
 tent : The jury in all criminal cases are to be 
 judges of the law as well as the fact. In all 
 criminal cases, the jury will only have the power 
 of rendering a general verdict. The verdict is 
 either guilty or not guilty, and in saying guilty 
 or not guilty, they pass virtually upon the law as 
 well as the fact. But, now it is proposed to give 
 to the jury power, by the organic law, to be the 
 final judges of all questions of law in criminal 
 cases. When they go in favor of the accused, 
 whatever right they have to ask for a new trial, 
 they never exercise it, at least it never has been 
 
 34 3 
 
 exercised. It may be considered now as gone 
 entirely ; it gives no new trial to the Common 
 wealth when the prisoner is acquitted. If he is 
 convicted contrary to law, if convicted against the 
 weight of evidence, so glaringly so that it would 
 lead the mind irresistibly to the conclusion that 
 the verdict was wrong, a new trial may some 
 times be obtained. But, suppose the prisoner 
 happens to be convicted contrary to law, and sup 
 pose he is an unpopular man ; suppose he is on 
 the unpopular side in politics ; if you make the 
 jury by constitutional provision judges of the law 
 and the fact, the verdict can never be set aside. 
 Never. 
 
 Xow, the question is, whether the Conven 
 tion is ready to do this. Every man has some 
 legal right or other, if only a right to be hanged 
 according to law ; but if you transfer the right to 
 judge of the law from the court to the jury, and 
 the jury happens to be hurried away by the cur 
 rent of feeling against the prisoner, he is sure to be 
 convicted, and that conviction is final. The idea 
 of giving the jury, in express terms, the power of 
 judging of the law as well as the fact, probably 
 originated in a misunderstanding, and conse 
 quently an abuse of the law of libel ; and the im 
 pression that some precaution was necessary, has 
 finally acted upon the the mind of the legisla 
 tures of all the States of the Union. In some of 
 the States, it is provided by statute, as is the 
 case with our own statute in regard to libel, that 
 evidence may be given of the truth of the words 
 declared to be libellous ; but the question is, 
 whether you will retain that power over the sub 
 ject by making it subject to legislative act, or 
 whether you will put it farther out of your hands 
 until another Convention shall make it part of 
 the organic law r Having stated what I think 
 will be the operation of this provision, I have no 
 farther argument to urge. It does not affect me, 
 personally, any more than it does every other man 
 in the community. 
 
 Mr. MILLER, of Wareham. I do not rise to 
 discuss this question, but I desire to express one 
 or two results which this proposition, if adopted, 
 will have upon the trial of criminals in your 
 courts. If the judge charges in favor of the 
 prisoner, it is all very well for the jury. But, if 
 he charges the jxiry, or in the course of the tria! 
 he advises the district-attorney, that the charges 
 are not sufficient to convict the prisoner, the dis 
 trict-attorney can turn round and tell the judge 
 that he is not the judge of the law ; that the jury 
 must decide that question. Xow suppose a case 
 should occur upon which the community were 
 much excited, and the jury, under the influence of 
 that excitement, should convict the prisoner 
 
498 
 
 BILL OF RIGHTS. 
 
 [69th day. 
 
 Thursday,] 
 
 MILLER BIIIGGS. 
 
 [July 28th. 
 
 against what would be considered law by the 
 best judges in the land ; the judge has no right to 
 83t aside that judgment. 
 
 Again, suppose the judge should charge against 
 the prisoner ; and, suppose, in the opinion of all 
 the other judges in the country, he charged the 
 jury wrong ; but, suppose that upon that charge 
 the jury should convict the prisoner, there is no 
 way in which that error can be corrected, and the 
 prisoner must therefore suffer the penalty of the law 
 wrongly administered. I hold that the adop 
 tion of this principle will have the effect to take 
 away one of the private rights of the individual 
 citizen. It will have directly the opposite effect 
 from that intended by the mover. If it is inserted 
 into the Constitution, its practical operation will 
 be to render the security of every person less 
 safe than it is^under the Constitution as it now 
 stands. 
 
 I have a word to say in relation to what the law 
 is now. The courts say in their decisions and it 
 is now the law of the community that the jury 
 must take the law from the court, but they are 
 not bound by it. They are to consider it as de 
 livered by the court ; but still, they have the right 
 to decide the law, as well as the fact. But if the 
 jury convict upon a wrong construction of law, 
 the court has the power to set the verdict aside. 
 It seems to me, therefore, that the community 
 have greater security under the Constitution 
 as it now stands, than they will have under the 
 provision which it is now proposed to adopt. I 
 shall, therefore, for this reason, vote against the 
 passage of the resolve. 
 
 Mr. BBIGGS, of Pittsfield. I understand the 
 ground upon which this provision is put, is to 
 increase the security and safety of the citizen. It 
 is said that the courts, even in our country, and 
 in this Commonwealth, are constantly encroach 
 ing upon the rights of the jury. I believe one 
 gentleman said, that in this respect, the courts 
 had usurped powers which did not belong to 
 them. Now, I confess, it would be strange to 
 me if this was so. In the name of common sense, 
 what motive is there for the court to intrench 
 upon the jurisdiction or vested rights of the jury ? 
 What possible interest or gratification would it be 
 fcr the court to take from the jury a responsibility 
 and right, which belongs to them ? 
 
 Sir, the law favors the prisoner, and the courts 
 favor the prisoner. By the present law, every 
 decision of the judge, from the beginning to the 
 end of the trial, in favor of the prisoner, is final. 
 The prosecuting officer may be ever so much dis 
 satisfied with the decision ; he may feel ever so 
 strongly that the judge is mistaken, the decision 
 is final, and cannot be appealed from. Yet, 
 
 if the judge, during the progress of the trial, 
 makes any decision against the prisoner, the 
 prisoner s counsel has the right to object to it, and 
 he has the right to appeal to the highest judicial 
 tribunal in the Commonwealth, to test its correct 
 ness. If in charging the jury, the judge charges 
 in favor of the prisoner, and the jury acquit him, 
 that is the end of the matter ; but, if the judge 
 charges them against the prisoner, and expounds 
 the law wrongly, and upon it they convict the 
 defendant, exceptions may be taken, the matter 
 tested before the highest judicial tribunal, the 
 error corrected, and the prisoner allowed the 
 benefit of another trial. So that gentlemen must 
 see that under the present law, everything goes 
 to assert and carry out that great principle of 
 humanity, as well as law, that every person is 
 deemed to be innocent until proved to be guilty. 
 That is the law of the land. 
 
 There is one instance upon our records, within 
 my recollection, where this scrupulosity of the 
 court, in allowing the verdict of the jury to be 
 set aside upon a mere technicality, which could 
 not, of itself, be of the slightest importance ; but, 
 by means of which, the prisoner saved his life. 
 
 Forty years ago, in the county of Hampshire, a 
 man was arraigned and tried for his life. He was 
 convicted, but the verdict was set aside, upon the 
 ground that he was not properly arraigned. The 
 law required that a criminal indicted for a capital 
 offence, should be arraigned and put to plead be 
 fore a full court. A full court were in session in 
 Northampton ; but, on the morning before they 
 had assembled, one of the judges went into court, 
 the prisoner was brought to the bar, and plead not 
 guilty. At a subsequent term he was tried and 
 convicted ; but, after the conviction, a motion was 
 made to set aside the verdict, because he was 
 not arraigned before a full court. That great 
 man, and distinguished jurist, Chief Justice Par 
 sons, in giving the opinion of the court, said every 
 body could see that it was perfectly immaterial 
 to the prisoner, in a matter like this, whether he 
 was placed at the bar and said, not guilty, before 
 one judge, or before a full court. The objection 
 made was a mere technical one a mere legal 
 quibble ; " but," said he, " a man has a right to 
 quibble for his life." They set aside the verdict. 
 A new jury was impanelled, a new trial was had, 
 and he was acquitted. 
 
 I name this circumstance to show how careful 
 the courts are of human life, and human liberty. 
 So it was then, and so it is now. 
 
 Now, will this alteration will the incorpora 
 tion into the Constitution, of the principle that 
 the jury are to be the ultimate judges of the law 
 as well as the fact, increase the security of liberty 
 
69th day.] 
 
 BILL OF RIGHTS. 
 
 499 
 
 Thursday,] 
 
 BRIGGS HUNTINGTON. 
 
 [July 28th. 
 
 and of life ? As it is now, if the judge gives the 
 wrong law, and the jury convict a man upon it, a 
 new trial is granted. If in a criminal trial the 
 jury are wrongly instructed in the law by the 
 court, and the prisoner is convicted, he has a 
 remedy. I will not go into a discussion of the 
 question, of which all things considered is the 
 most likely to judge rightly, the judge upon the 
 bench, or the jury summoned to the jury-box to 
 sit for eight or ten days, to decide upon the facts 
 of the case. 
 
 It must be admitted by every one, that there 
 are in every community, subjects more or less ex 
 citing, which will extend even to the jury-box. 
 Now, whatever the subject may be, if the excite 
 ment in relation to it is geneial, if it pervades the 
 community, it will mingle itself with the discus 
 sion of the jury-room, and will have more or less 
 influence upon the minds of the jurors. It is no 
 implication upon the fairness or honesty of jurors, 
 to say that they are subject to be influenced 
 in their opinions like other men. I ask the ques 
 tion, which is the safest for the community or for 
 the individual, to have the judge upon the bench, 
 under his responsibility, the supervising power, to 
 lay down the law to the jury, and for them to take it 
 from him, and then to decide the law and the facts, 
 or for the jury to take the matter into their own 
 hands, and decide for themselves, what is the law 
 of the Commonwealth ? Take, for instance, the 
 all- exciting subject of the license law. There 
 has been great difficulty in various parts of the 
 State, under the existing law, in getting verdicts, 
 because the juries are divided in opinion as to the 
 character of this law. Now, suppose you make 
 them the ultimate tribunal to settle the law, and 
 indict men for its violation ; let the counsel for 
 defence defend the prisoners, as they will defend 
 them, and as their zeal and ardor are awakened, 
 and all their energies put in requisition, they turn 
 from the bench to the jury to those twelve men 
 as the judges of the law do you suppose they 
 would be very likely to give a unanimous opinion 
 upon that subject ? I apprehend, if this amend 
 ment prevails, you will have very great difficulty 
 in obtaining a concurrence of twelve minds in 
 favor of the validity of your Maine law. 
 
 But, after all, my great objection to this amend 
 ment is this : you may calculate to an absolute 
 certainty, that in a large number of cases, whether 
 one in fifty or one in a hundred, I will not under 
 take to say, the jury will mistake the law, the 
 prisoner will be improperly convicted, and he will 
 have no remedy ; you will have no means of 
 carrying out that wise and humane maxim, that it 
 is better to allow a hundred guilty men to escape, 
 than for one innocent man to be punished. Hav 
 
 ing reference to this great principle, I ask if there 
 is not danger of losing much, and doing great 
 wrong, by making this change. 
 
 Then, again, what do you do to the judge ? 
 You take from him all responsibility. He can 
 only say : " Gentlemen of the jury, my opinion 
 I of the law is this ; but whether it is law or not, 
 you are to settle." He cannot instruct them, they 
 are to settle the matter, and whether they settle it 
 right or wrong, there is no remedy. It seems to 
 me that it is not the part of wisdom to adopt such 
 a provision. 
 
 Mr. HUNTINGTON, of Northampton. I now 
 offer the amendment which I should have offered 
 yesterday, if I had not been cut off by the pre 
 vious question. I propose to add at the close of 
 the resolve, these words : 
 
 But it shall be the duty of the court to super 
 intend the course of the trial, and decide upon 
 the admission or rejection of evidence ; but upon 
 all questions of law arising during the trial, upon 
 collateral or incidental proceedings, to allow bills 
 of exceptions. 
 
 I conceive that leaves the law where it stood 
 previous to the decision in the case of the 
 Commonwealth vs. Porter. I concieve that the 
 provision reported by the Committee is liable to 
 miscontruction. I have, therefore, proposed this 
 amendment for the purpose of reducing the law to 
 where it stood before the decision was made 
 which may be found in the tenth of Metcalf, as 
 decided by Chief Justice Parsons, and other 
 judges of the supreme court. I think, in a case 
 reported in the tenth of Metcalf, a judge changed 
 the law, and that decision has never been set 
 aside. 
 
 I believe all legal gentlemen will agree with 
 me, that taking this resolution as it now stands, 
 and construing it in the bold manner in which it 
 recites its provisions, the court may say to the 
 counsel for the defendant, in relation to any mo 
 tion that may be made to set aside the verdict, or 
 the ruling of the court : " The jury have passed 
 upon that, and their decision must be final." For 
 instance, a man is indicted before one of your 
 courts, the court gives its ruling on the case, and 
 the jury decide upon his guilt or innocence, and, 
 by their verdict the defendant is found guilty. 
 The defendant then proposes to the court to allow 
 exceptions to his ruling, but the court a com 
 mon pleas judge will reply : " No ; look at the 
 Constitution. The Constitution declares that the 
 jury shall determine the law and the facts of the 
 case, you are not entitled to your bill of excep 
 tions. I do not know whether the jury took the 
 rulings of the court or not ; they are the power to 
 
500 
 
 BILL OF RIGHTS. 
 
 [69th day, 
 
 Thursday,] 
 
 HUNTIXGTON TRAIN. 
 
 [July 28th. 
 
 decide. It is of no consequence what were my 
 rulings. The jury are to decide upon all matters 
 of law and evidence. I do not know whether 
 they followed my instructions or not. You are 
 not entitled to a bill of exceptions." That will be 
 the result, and the defendant cannot help himself. 
 The jury may have erred in their construction of 
 the law ; and yet, as was stated yesterday, upon 
 that construction, they may have sent a man to 
 State Prison for life ; for, as has been said, 
 the question of what the law is, must depend 
 upon the construction of twelve men. 
 
 Now, Sir, all I propose to accomplish by this 
 amendment, is to bring the law back to where it 
 stood previous to the decision in the case of the 
 Commonwealth vs. Porter. I do not propose to 
 change the principle. This is all I propose to ac 
 complish, and, in the opinion of several gentle 
 men who are friendly to the resolution, and who 
 have seen my amendment, it is what it is desira 
 ble to accomplish. It is to assert the rights of 
 the judge as well as those of the jury. I do 
 not understand the member for Wilbraham, (Mr. 
 Ilallctt,) to advocate the right of the jury to 
 decide upon the law and evidence in every case. 
 It very often happens, in the course of a criminal 
 trial, that evidence is introduced for a certain 
 purpose ; the court tell the jury they may re 
 ceive and consider this evidence for one purpose, 
 and reject it for another purpose. Now, as this 
 resolution stands, if the court were to instruct 
 the jury in this manner, as soon as they retire to 
 their room they may say : " We are the judges of 
 the law and evidence, and although the court 
 chooses to rule out this evidence, yet we have the 
 right, under the Constitution, to consider whether 
 we will admit it." They may admit it, and thus 
 a man may be convicted upon hearsay evidence. 
 
 Again, there is a disposition upon the part 
 of the court, sometimes, to avoid responsibility. 
 Practitioners before your courts well know that 
 it is very often not with willingness, that the 
 judges make judicial decisions. And if you in 
 corporate into the Constitution this resolve, as it 
 now stands, you will provide a means by which 
 a judge may at any time shirk the responsibility 
 of any decision, by saying that the Constitution 
 has given the law to the jury. 
 
 It will make the judges careless in relation to 
 their instructions to the jury, and negligent of 
 the whole of that responsibility which rests upon 
 them, by virtue of their office. They should dis 
 charge all the duties prescribed in the resolution. 
 Now, they rule upon evidence, and determine as 
 to the sufficiency of an indictment. Why, Sir, 
 suppose a man is arraigned for a crime which 
 may send him to the State Prison, and the de 
 
 fendant says the indictment is not sufficient ; the 
 court passes upon the indictment, and rules it to 
 be sufficient, and the trial goes on, and the jury 
 find their verdict of guilty. Or they go to their 
 room and examine the case, and they say : well, 
 the court, to be sure, has ruled this indictment to 
 be sufficient, but we have a right to determine 
 the law of the case, and that involves the suffi 
 ciency of the indictment, and questions of evi 
 dence ; and as the Constitution provides that we 
 shall determine all the law in this case, though, 
 the court has ruled that the indictment is sufficient, 
 we, or one man of us, may determine that it is 
 not sufficient. Thus the prisoner may be dis 
 charged. As it now stands, the question is in 
 the power of one single man upon the jury of 
 twelve men. I think that is going too far. I 
 know that the gentleman who drew this resolu 
 tion did not intend any such result as that, and I 
 submit whether the amendment does not place 
 the law as it always has been, from the founda 
 tion of our government down to the time of the 
 decision of the case of the Commonwealth vs. 
 Porter. 
 
 Mr. TRAIN, of Framingham. I desire to say 
 a few words upon this proposition not to discuss 
 it, for it cannot be discussed within the time 
 allowed to a single speaker, or to the Convention, 
 with anything like the degree of care which its 
 importance demands. In my judgment, it is a 
 proposition which is more vital to the interests of 
 the people of Massachusetts, than any which has 
 been discussed in this Convention, and I desire 
 to speak of it for a moment, with reference to no 
 other object than simply to ascertain what is 
 right. Suppose that we were now for the first 
 time establishing a tribunal for the trial of per 
 sons charged with the violation of law, for the 
 first time to define the powers and duties of the 
 court, and the rights and powers of the jury ; if 
 we wished to contrive the best mode by which 
 truth should be ascertained, and the right and 
 wrong determined, how would we go to work to 
 do it? Trial by jury is a human invention, 
 which has been perfecting itself for more than six 
 hundred years ; but assume now, that down to 
 this morning, juries have had the right to find 
 the law as well as the fact, in criminal cases, I beg 
 the Convention to consider a moment if that is 
 the best way. 
 
 Now, Sir, I do not purpose to go into the in 
 quiry, so largely discussed here, whether juries 
 have heretofore had the right, or not; because 
 upon the best consideration I have been able to 
 give the subject, I believe that the rights of pris 
 oners and the security of human life and liberty, 
 under our organization of society and government, 
 
69th day.] 
 
 BILL OF RIGHTS. 
 
 501 
 
 Thursday,] 
 
 TRAIN. 
 
 [July 28th. 
 
 require that the powers to ascertain and declare 
 the law should be vested in a different portion of 
 the tribunal than that which is to ascertain the 
 facts ; the one should be the peculiar province of 
 the court the other, the peculiar province of the 
 jury. I do not agree with the gentleman from 
 Northampton, as to the effect of his amendment 
 upon the decisions of the courts of this Common 
 wealth. 
 
 " Can it for a moment be contended that twelve 
 men in a jury-box, are to determine that not to be 
 an offence, which the law under a penalty for 
 bids ? May they pronounce that to be man 
 slaughter, or justifiable homicide, which the law 
 declares to be murder ? If so, then they may by 
 their verdict abrogate, by rendering ineffective, 
 every enactment of the legislature, and they be 
 come a court of appeal." The legislature enacts 
 the law of the Commonwealth, and you place the 
 power in the hands of every man in the jury-box 
 to abrogate every enactment of the legislature, and 
 the power which you have vested in the legisla 
 ture. All that power may be thrown away, and 
 the most sacred rights sacrificed, at the will of any 
 one man, whose name you have authorized to be 
 placed in the jury-box. That is the proposition. 
 
 Now, when gentlemen say that the decision in 
 the case of the Commonwealth vs. Porter was 
 wrong, I do not agree with them, because I un 
 derstand that the jury have the power now and 
 they may have had the right but I understand 
 the court to have said, that juries have the power 
 but not the right. So has the judge the power to 
 give judgments contrary to law, if he chooses to 
 disregard his oath. And so have the jury the 
 power to return a verdict contrary to the law, if 
 they choose to disregard their oaths. So that 
 while I hold they have the power, they have not 
 the right, and if they have the right, that right 
 should be taken from them ; because I say that 
 the security of the prisoner, and security to liberty 
 and life, require that the power to pass upon the 
 law should be vested in a tribunal where a re 
 vision may be had, so that the law which is a 
 science, shall be administered uniformly through 
 out the Commonwealth. So that what is my 
 right in Middlesex, shall be the right of my neigh 
 bor in Suffolk. 
 
 No useful analogy can be drawn from the ad 
 ministration of law on the other side of the At 
 lantic. The distinction is broad and deep. There, 
 the sheriff impanells a jury of his choice, and he 
 is, or may be, the corrupt servant of the crown. 
 Here, the jury is selected by lot, in a manner 
 enabling us to secure a tribunal " as impartial as 
 the lot of humanity will admit." There, by the 
 constitution of the tribunal, the whole power of 
 
 the crown may be brought to bear directly upon 
 the prisoner, as the crown creates the tribunal that 
 is to try. Here, the government has the same 
 control over the tribunal that the prisoner has, 
 and no other. If our judges were the corrupt 
 tools of a tyrant, then the juries should be judges 
 of the law as well as the fact. When judges take 
 a stand for the rights of the crown, against the 
 best interests and liberties of the people, then 
 juries should stand between the crown and the 
 people, for the protection of the latter. Here, the 
 people are the crown, and the judge stands be 
 tween the people and the prisoner, the maxim 
 being " that the judge is counsel for the prisoner "; 
 and the safety of the prisoner, and the rights of 
 the people, are alike preserved. No power is, or 
 can be, brought to bear upon the prisoner, save 
 the power of the law, symbolized, and acting by 
 the court. Our tribunals represent simply the 
 people as a Commonwealth, seeking to preserve 
 itself by preventing the commission of crime on 
 the one side, and the prisoner defending himself, 
 under the Constitution and laws, as one of the 
 same Commonwealth, on the other; while the 
 judge is alike independent of either, and sits be 
 tween the people on the one side, and the prisoner 
 on the other, that the rights of both may be pre 
 served. 
 
 Now, upon the proposition which is offered 
 here, you take the whole power of the Common 
 wealth and place it in the hands of twelve men in 
 the jury-box, who are to pass upon the rights of 
 the prisoner and the prisoner has no protection 
 against the popular will you take from him all 
 the protection which we can afford him, namely, 
 the right that the jury shall take the law from the 
 court. So far from enlarging the rights of the 
 prisoner, you are seeking to limit and control 
 them. 
 
 Now it seems to me, and I speak as a lawyer, 
 that if we were now about to establish a legal 
 tribunal, we should so create it that the court and 
 jury should be independent of each other, each in 
 its own department, the court declaring the law, 
 and the jury declaring the facts. Then if the 
 court is mistaken in the law, the supreme court 
 will revise and correct the error if the law itself 
 is wrong, the legislature will set it right by a new 
 enactment. If you place this power in the hands 
 of the jury, they make the law in every given 
 case ; and there can be no mode devised, notwith 
 standing I defer to the opinion of the gentleman 
 from Northampton, by which a prisoner can be 
 redressed for any injury he may suffer from a 
 wrong verdict. I can conceive of no mode. The 
 gentleman in the case which he has stated, 
 assumes that the judge has instructed the jury 
 
502 
 
 BILL OF RIGHTS. 
 
 [69th day. 
 
 Thursday,] 
 
 N RANTOUL. 
 
 [July 28th. 
 
 improperly then the prisoner may except ; but 
 suppose that the judge has given the law to the 
 jury correctly, and the jury, taking the bits in 
 their teeth, have run away with the case and 
 convicted the prisoner, notwithstanding the in 
 structions of the court, what has become of the 
 prisoner then ? God help him. 
 
 As a prosecuting officer merely, I have no ob 
 jection to the adoption of this proposition. If 
 prosecuting officers, in the language of the dele 
 gate for Abington, are mere legal butchers, who 
 wish only to get verdicts, to bag game, they will 
 not object to it. And I tell gentlemen tr.at the 
 prosecuting officers can get more verdicts, if you 
 will remove the judge from between the prose 
 cuting officer and the prisoner, then they can get 
 now. Many a prisoner has escaped upon tech 
 nical grounds, when, if the jury could have had 
 their way he would have been convicted and pun 
 ished for the commission of a crime ; and yet no 
 one would desire to have the law different in that 
 respect. 
 
 One word more. I do not think appeals should 
 be made to the Convention upon this proposition, 
 as though it were a political matter, or that an 
 effort should be made to array one portion of the 
 people against another portion. This proposition 
 does not affect " the craft" to which I belong. 
 
 The delegate from Lowell (Mr. Butler) very 
 craftily called the attention of the Convention to 
 the fact that "the craft was in danger," as he 
 said. Sir, it is not so ; adopt this proposition in 
 your Constitution, allow the lawyers to argue the 
 law, as well as the facts of every case to the jury, 
 and you will increase their income thereby five 
 fold. Every case will then be argued, however 
 clear it may be, upon the hope that out of twelve 
 men one fool can be found upon the panel. So 
 far from the profits of the craft being diminished 
 by the adoption of this proposition, they will be 
 increased most substantially ; and so far, with 
 the fellow- feeling which I have for my brethren, 
 I have no objection to it. 
 
 But when the gentleman from Lowell was 
 quoting Scripture, I could have pointed him to a 
 record where the jury were judges of the law and 
 of the fact; where, when the judge washed his 
 hands before the multitude, saying, " I am inno 
 cent of the blood of this just person," the jury 
 said, "Away with him! away with him! Cru 
 cify him! crucify him!" and that jury passed 
 upon the law and the fact. 
 
 Sir, I do not wish to see in Massachusetts a 
 tribunal created where the rights of my fellow- 
 citizens will be affected by every popular breeze. 
 
 The courts of Massachusetts are the only tri 
 bunals which stand unaffected by the popular 
 
 will. Let your juries become judges of the law 
 and the fact, and every man is tried by the popu 
 lar impulse, and no man is secure in his rights. 
 If offences in Massachusetts were merely political, 
 there might be some show of reason in this propo 
 sition ; but then, in times of great excitement, 
 juries would exercise the power, whether they 
 had the right or not. 
 
 These are, very briefly, my views in regard to 
 this matter. I only regret that the subject cannot 
 receive the consideration which its importance 
 demands. 
 
 Mr. RANTOUL, of Beverly. I have listened 
 to the arguments of the learned gentlemen who 
 have spoken this morning, and I am more and 
 more convinced of the necessity of having this 
 amendment made in the Constitution. I think 
 that gentlemen uniformly agree that the ancient 
 right of jurors was to judge of the law as well as 
 of the fact. No one of them has argued that this 
 was not the ancient law of the country, from time 
 immemorial, up to about fifteen or twenty years 
 ago. Within that time, it is understood that 
 there has been an attempt, on the part of the 
 court, to usurp what was the ancient right of the 
 jury that is, they have undertaken to say that 
 jurors had not the right to judge of the law, but 
 merely had the power to judge of the law. Up 
 to that time, I believe, the question was not 
 raised but what the jury had not only the power 
 but the right. This amendment of the Constitu 
 tion which we propose, merely recognizes the 
 rights of jurors as they existed previous to this 
 innovation. I therefore hope that we shall ad 
 here to the vote we have already passed upon this 
 subject. 
 
 In respect to corruption and mistakes on the 
 part of juries, those who are conversant with the 
 matter could state some things with regard to the 
 judges. Judges sometimes make mistakes, and 
 are sometimes corrupt. Lord Jeffreys was cor 
 rupt, and if the jury had the independence which 
 belongs to them, and could have exercised it, 
 there would not have been the blood shed which 
 there was shed under his administration. But 
 the juries had not the independence to carry out 
 their legal rights, and interpret the law according 
 to their own view of it, rather than according to 
 his ruling. 
 
 Lord Mansfield was not a corrupt judge. He 
 undertook to usurp the rights of the jury with re 
 gard to a prosecution for a libel. He undertook 
 to direct the jury that they had no right to inquire 
 whether the person charged with the libel pub 
 lished the libel. That was considered so flagrant 
 an infringement of the rights of the jury, that 
 parliament made a law to remedy that particular 
 
69th day.] 
 
 BILL OF RIGHTS. 
 
 503 
 
 Thursday,] 
 
 RANTOUL CHANDLER. 
 
 [July 28th. 
 
 branch of jurisprudence. B ut no man has claimed 
 that the judges in this Commonwealth ever exer 
 cised such a power until within the past fifteen or 
 twenty years. 
 
 I recollect a trial in Essex County, in 1805, 
 when the court was held by a majority of the 
 judges. I remember very well that the facts of 
 that case were proved to the satisfaction of every 
 body ; there was no question about the facts, but 
 the issue was about the law. The judge in 
 structed the jury with regard to the law ; the 
 jury retired upon that, and a certain portion of 
 the jury held that the court had laid down the 
 law different from their judgment of the law. 
 They accordingly opposed a verdict the jury did 
 not agree and they returned to court and re 
 ported that disagreement. The jury were then 
 discharged, and the court never intimated but 
 that the jury had the right, as well as the power, 
 to consider the law. That case, I believe, was 
 tried three times in the county of Essex, and no 
 jury could be found to agree with the court on 
 points of law. There was always the power to 
 decide for themselves, and these juries exercised 
 it, and resisted the decisions of the court, until 
 finally the prosecutor concluded to give up the 
 case. I mention this to show, that in 1805, with 
 in my own knowledge and observation, the court 
 did not pretend to say to the jury that they had 
 no right to judge with regard to the law. The 
 court instructed the jury that they had a right to 
 consider the law, as well as the facts, and bring in 
 a verdict according to their views of the law and 
 the facts. I mentioned before, the case of Judge 
 Chace, who was tried upon impeachment. He 
 was charged with interfering with the rights of 
 the jury with regard to the law, and he denied the 
 fact, and was acquitted of the charge. He not only 
 denied the fact, but, in his reply to the impeach 
 ment, he also argued that it was the ancient right 
 of the jury to judge of the law as well as of the 
 fact, and he considered it a sacred right which 
 ought not to be interfered with by the court. So 
 late as the year 1805, we have the opinion of a 
 majority of the supreme court of this State ; and 
 in 1802 or 1803, we have the opinion of a learned 
 judge of the supreme court of the United States, 
 to the effect that the jury had this right ; and 
 there was no question upon the part of learned 
 men, that they had not only the power, but the 
 right, to give a verdict upon their own views of 
 law and the facts of the case. In addition to this, 
 I may say that a very considerable number of the 
 States of this Union, who have lately revised or 
 adopted Constitutions, have introduced into- them 
 this very provision. They probably had the same 
 apprehensions that we have reason to entertain ; 
 
 and, for one, I certainly have greater reason to 
 entertain those apprehensions now, than I had 
 when I came here. There is reason to fear lest 
 the ancient rights of juries might be usurped by 
 the courts ; and therefore we ought to guard 
 against it. In a great many of the States they 
 have already introduced such a provision into 
 their Constitutions, and I hope we shall introduce 
 it into ours. I do not understand any of the 
 gentlemen who have spoken, to deny but what 
 this was always the law until very lately. 
 
 Mr. CHANDLER, of Greenfield. Every vote 
 which I give in this Convention I want to give in 
 telligently, but I am not prepared to vote intelli 
 gently in the affirmative on this proposition. I 
 rise for information. I am not discussing the 
 subject as a lawyer ; I am not discussing it as a 
 politician ; I look at it simply with the idea of a 
 country farmer ; as a plain man who makes 
 pretensions to a little common sense, but who 
 claims, by no means, to be overburdened even with 
 that. If I understand anything of the duty of a 
 juryman, it is to take the law as his rule, apply 
 it to the conduct of the prisoner at the bar ; and 
 then, by a careful comparison, to judge whether 
 the man is guilty or not guilty. This, I sup 
 pose, is universally admitted ; and this being ad 
 mitted, I ask now, where am I to obtain 
 my rule ? Where am I to obtain that knowledge 
 of law upon which I can rely, so as to use it 
 without hesitation as the rule by which to judge 
 of that man s conduct ? This is the information 
 which I want, and I have waited here and lis 
 tened with great anxiety, to have the learned 
 gentlemen who have spoken upon this ques 
 tion, tell me where I shall obtain that knowl 
 edge of law that will answer to rely upon in 
 this case. I go into the jury-box ignorant, 
 both of the law and the facts I have them both 
 to learn in the court-house. The facts I am to 
 learn from the witnesses, and the law I am to 
 learn from some other source. Whence am I to 
 obtain it ? Am I to look to the judge for it? If 
 I take his positions, and apply that law to the 
 conduct of the man, I am not in that case a judge 
 of the law, but a doer of the law only, as I have 
 always endeavored to be. But, if I am not to 
 take my rules of law from the judge, am I to 
 take them from the counsel ? They are of oppo 
 site sides and different intellects. It certainly 
 would be no more safe, as a general rule, to look 
 to the counsel, than it w r ould to look to the judge. 
 But, suppose I do take my view of law from the 
 counsel and apply it ; that is not judging the law, 
 but only doing what I suppose the law requires. 
 I want to inquire again, what kind of a judgment 
 it is that I am to have upon the law ? Am I to 
 
504 
 
 BILL OF RIGHTS. 
 
 [69th day. 
 
 Thursday,] 
 
 CHANDLER HALLETT HILLARD. 
 
 [July 28th. 
 
 judge whether the law, as laid down by the judge 
 or the counsel, or by whoever I look to for in 
 formation, is the law applicable to the case? 
 How am I to obtain this information ? The judge 
 has told me that the law is so and so ; and he, 
 perhaps, to obtain his information, has gone 
 through a hundred volumes of statutes, and I 
 know not how many volumes of precedents and 
 reports. Can I be expected to know more than 
 the judge ? Can my general information upon 
 the subject of law, be supposed to render me capa 
 ble of sitting in judgment on his opinions, and 
 forming an idea superior to his r That would be 
 becoming a judge of the supreme bench. Or am 
 I to judge of the question whether the law by 
 which this man is tried, is a wise and good law or 
 not ? Am I, in a word, to take it upon myself 
 virtually to repeal all the laws that have been 
 passed by the legislature, after the most full dis 
 cussion and mature deliberation, which I do not 
 like ? Mr. President, I want information upon 
 these subjects, and I would beg learned gentlemen 
 to enlighten me as to these points ; and then I shall 
 be able, and not until then, to give a vote satis 
 factorily to my own mind ; for though I claim 
 all the privileges of a full blooded Yankee, yet I 
 am so nearly allied to the aborigines of the coun 
 try, that in a matter of such importance as this, 
 I do not love to guess. 
 
 Mr. HALLETT. I wish, with the consent of 
 the mover of this amendment, to add two or 
 three words to it, which I deem important. I 
 have, myself, the fullest conviction that the 
 original proposition, as it stands reported, is ex 
 plicit and sufficient ; but still, as there has been 
 so much learned ingenuity displayed here, in 
 technical constructions adverse to the rights of 
 juries and parties, I am afraid that there might be 
 the same learned ingenuity displayed elsewhere ; 
 and that attempts may be made to evade the bene 
 ficial intent of this provision, as there always have 
 been attempts by those in authority to evade or 
 construe away laws which were made for the lib 
 erties of the people. Hence, to remove all doubt, 
 I propose to add a clause conferring express power 
 on the courts to grant new trials ; because, I do 
 not want a judge to have any ground to say that 
 the jury have settled the law in the trial of a 
 cause, and therefore he will not undertake to 
 grant a new trial upon any law or evidence 
 which they have passed upon and determined in 
 the case. In order to exclude such a possible 
 conclusion, I move to add at the end of the 
 amendment the following words : And the 
 court may grant a new trial in cases of convic 
 tion. This affirms precisely the right which now 
 exists at common law, and by statute, for the 
 
 court to grant new trials in criminal causes in 
 favor of the defendant, and by so affirming it, all 
 the technical cavils of bar or bench, at the effect 
 of a jury passing upon the law as well as the 
 facts of a case, will be done away. 
 
 Mr. HILLARD. We have in our youth read 
 of a shield that was half gold and half sil 
 ver, and of the two knights who approached 
 this shield from different sides, and fought upon 
 the question whether it was all gold or all silver. 
 Now, this question of the rights of juries in 
 criminal cases, has two aspects, like the shield that 
 was half gold and half silver ; and I think that 
 those who call themselves the friends of the rights 
 of juries, have looked at it only from one side. 
 As I have before observed, in the common course 
 of jury trials, in nine cases out of ten, it is not 
 of the least practical consequence which rule or 
 principle you adopt, because there will not be any 
 bias in the minds of the jury which would lead 
 them to call in question the law as laid down by 
 the court. But now and then there is a case in 
 regard to which there is a powerful current of 
 popular sympathy. That current of popular 
 sympathy may flow either in favor of the prisoner 
 or against him. The gentlemen on the other side 
 argue the case on the supposition that this sym 
 pathy will be always in favor of a prisoner. 
 They fear that the rule as now laid down in our 
 Commonwealth, will operate to convict a pris 
 oner at the will of the court, against the inclina 
 tion of the jury. Now, whenever a criminal is 
 brought to the bar, and this public sentiment is 
 strongly in his favor, there is an infirmity in the 
 constitution of jury trials, because, through this 
 popular favor, the law is virtually annulled and 
 set aside. We must take this institution, like all 
 others, with its incumbrances. 
 
 You remember that a year or two ago, in Lon 
 don, an assault was made upon Marshal Haynau, 
 by the operatives in Barclay s brewery ; and the 
 cabinet of Austria demanded of the British gov 
 ernment that these men should be brought to 
 punishment. The answer of the English minis 
 ter was, if we attempt to bring these men to trial, 
 we must submit their case to a jury of twelve 
 men, in the city of London ; and with such a 
 state of public sentiment as now exists, it would 
 be impossible to find a jury in the city of Lon 
 don who would convict them ; therefore we must 
 take the institutions of our country as they exist, 
 and act upon them. That was a sensible way of 
 looking at the question ; and wherever there is 
 this powerful and overwhelming current of pop 
 ular sentiment in favor of a man, he never will 
 be convicted, let your laws and regulations be 
 what they may. Take the other case, and see 
 
69th day.] 
 
 BILL OF RIGHTS. 
 
 505 
 
 Thursday,] 
 
 HILLARD MORTON. 
 
 [July 28th. 
 
 how it would be with an unpopular criminal ; 
 take a man who has been tried and convicted at 
 the bar of public sentiment, before he is put 
 upon the stand ; take a man against whom the 
 press has been directing all its powerful batteries ; 
 and I submit to men who have had experience 
 at the bar that cases do occur, that when such a 
 man stands arraigned the jury are hungering and 
 thirsting for his conviction, and they stand like 
 greyhounds on the slip, ready to fall upon the 
 prisoner and tear him to pieces. Now what are 
 the functions of a judge what is it that gives that 
 office its noble and exalted character ? It is that 
 the judge, not sharing in the passions of the people, 
 may stand as a breakwater between that man at 
 the bar, and the popular violence which is with 
 out ; but if you take the responsibility from the 
 judge, and throw it upon the jury if you make 
 your enactments so that the judge, if he be a 
 timid man, will bow before the current of popu 
 lar violence, and throw this man wholly into the 
 hands of the jury I submit, that there is dan 
 ger that the interests of humanity and justice 
 will suffer from the operation of this principle. 
 This is a danger which gentlemen seem not to 
 have apprehended. It seems to me that they 
 have looked at it only from the other side ; and I 
 ask you as lovers of humanity, and wishing that 
 men should not be tried by public sentiment, but 
 that they should be tried by justice and reason, 
 and should have an impartial tribunal whether 
 it is not better to give the judge power, in such 
 cases, to stretch forth the helping hand ? There 
 is one other consideration that I would urge in 
 relation to this matter. If you make the jury 
 judges of the law as well as of the fact, you in 
 crease the evil which now exists ; that is, you give 
 a man of talents at the bar an advantage greater 
 than that which he now possesses. I hope my 
 distinguished friend, the attorney- general, now 
 absent, will pardon me if I draw an argument 
 from his case. Suppose the prosecuting attorney 
 to be a man of his knowledge and abilities, of his 
 splendid oratorical powers, but without that moral 
 sense, and tenderness of heart which I know will 
 ever govern him ; suppose you have an inferior 
 man, without power or influence, for the defence ; 
 they are struggling before the jury, in a case 
 where the life of the prisoner is at stake. The 
 court is perfectly powerless to say how the jury 
 shall understand the law, and it is laid down to 
 them by these two men ; on the one side, a man 
 of eminent learning and abilities, not controlled 
 by a moral sense of justice and humanity, and 
 on the other side, a feeble, young, timid/ in 
 experienced advocate I submit to gentlemen if 
 there is not here an element of mischief which 
 
 may arise from the introduction of this princi 
 ple, which, as humane men, we ought to look at ? 
 I am entirely in favor of the amendment pro 
 posed by my friend from Northampton, and I 
 think it should be adopted ; although it will leave 
 a defective principle in force, practically, it will 
 leave the operations of juries very much as they 
 are now. 
 
 Mr. MORTON, of Taunton. I have desired 
 to gain the attention of the Convention on this 
 subject, even at this late day of the session, for a 
 few moments only. I have been unsuccessful in 
 obtaining the floor. This, however, is my own 
 fault. I complain of nobody ; but the Conven 
 tion will excuse me, if I relate a short anecdote 
 which this circumstance brings to my mind. 
 
 I heard once, of a young, ardent, and eloquent 
 man in the legislature, who was very anxious to 
 speak, and so also were many others, at the same 
 time. At every interval, dozens would rise on 
 their feet, and exclaim, as loudly as their lungs 
 would permit, " Mr. Speaker ! " and getting out 
 of all patience at his ill success in one of these 
 struggles, this young man shouted out, "Mr. 
 Speaker ! I must have the floor ; I have a little 
 speech which I want to get off; I must have the 
 floor, for my speech will not keep." [Laugh 
 ter.] 
 
 Now, I have no such reason as this young 
 man had for desiring the floor. "What I have to 
 say is old. The principles I wish to advance, I 
 have entertained for more than a quarter of a 
 century ; and on looking at them, I think they 
 are just as bright as when they were new. At 
 any rate, it will do no hurt to give them an 
 airing. 
 
 Mr. President : I rather propose to testify on 
 this matter, than to argue, because I take it that 
 the argument has been exhausted, and because, 
 also, there is no time to go into an investigation 
 of the subject. I felt somewhat anxious to ex 
 press my views upon this question, because I 
 suppose they will disappoint a good many indi 
 viduals. All my sympathies are with the mover 
 of this proposition ; and if I were now placed in 
 the same relation to that gentleman which I have 
 borne to him in times past, I think I should con 
 duct the business very much to his satisfaction, 
 and according to the views which he has expressed. 
 But I cannot but think that some of my friends 
 who are so anxious to protect the rights of indi 
 viduals and juries from encroachment, in their 
 zeal for liberty, instead of strengthening the 
 guards of liberty have weakened them ; and I 
 was sorry, on this subject, to differ from my 
 friend for Manchester, (Mr. Dana,) yesterday; 
 but I could not suppress my apprehension that 
 
506 
 
 BILL OF RIGHTS. 
 
 [69th day. 
 
 Thursday,] 
 
 MORTON. 
 
 [July 28th. 
 
 his attempt to guard and strengthen the writ of 
 habeas corpus, weakened the force with which it 
 has been regarded in the Commonwealth, hereto 
 fore. But I must not refer to that subject. Time 
 will not allow me to do so. I fear, however, that 
 this proposition in relation to the rights of juries, 
 instead of protecting and securing the rights of 
 the people, will tend to weaken them, and ex 
 pose those rights which gentlemen wish to protect, 
 to greater danger than they were exposed to under 
 the law as it existed before. 
 
 Mr. President : In relation to what was ad 
 vanced by some gentleman, yesterday I do not 
 now exactly remember who upon the organiza 
 tion of juries, I must say that the provision does 
 not reach it at all. If there is any imperfection 
 in the law, in relation to the selecting or impan 
 elling of juries, or the conduct of the officers in 
 determining who shall sit on a jury, the pres 
 ent amendment does not remedy that imperfec 
 tion ; it does not profess to reach it. Now this 
 amendment relates wholly to criminal trials. 
 And what is the course and progress of such 
 trials, as was very properly asked by my friend 
 
 opposite, (Mr. ,) a few moments ago ? 
 
 First, an indictment must be returned by the 
 grand jury. The party is then brought up for 
 trial, and the business of trying him seems to be 
 divided between two classes of functionaries. In 
 the first place individuals are selected to sit upon 
 the bench as judges of your court, for the purpose 
 of determining what the law is, whose duty it is 
 to settle rules for the government of cases that 
 come before them, and to decide upon their ap 
 plication to all the citizens of the Commonwealth. 
 They are supposed to be selected for their integ 
 rity and character, and above all, for their knowl 
 edge of the law, and their experience in its 
 application. It is supposed that they are to be 
 able to explain the law. Then you have selected 
 another class of functionaries, designated first, 
 by the election of the different towns, and then 
 selected by lot who are supposed to be some 
 what distinguished above their fellows, for their 
 integrity and practical knowledge of the affairs of 
 the world. It is their peculiar province to dis 
 cern the facts of the case ; and it is supposed, from 
 their experience and knowledge of mankind, that 
 they are better qualified to determine what credit 
 is due to witnesses, and what inferences may be 
 drawn from circumstances, than other classes of 
 the community even than the judges themselves, 
 who, from the nature of their occupation, are 
 somewhat withdrawn from society. The matter 
 thus goes on between these two classes, both hear 
 ing the evidence, and the judge explaining the 
 law. Now, how are the jury to determine the 
 
 guilt or innocence of the defendant ? In the first 
 place they have the facts alleged in the indict 
 ment before them, and they must determine 
 whether the evidence proves the facts alleged ; 
 and, if so, whether the facts, as proved, constitute 
 a legal offence. On that subject they have the 
 opinion and advice of the court as well as the tes 
 timony of the witnesses on the stand. They are 
 to view all the circumstances, and to decide upon 
 their own responsibility. If the jury, viewing 
 the disclosures which are made before them, de 
 liberately and conscientiously come to the con 
 clusion that the evidence does not establish the 
 fact, or that the law, though differently laid down 
 by the court, does not warrant a conviction, they 
 must say that the defendant is not guilty, and he 
 then goes forever discharged. They must, of 
 necessity, in returning a general verdict, decide 
 both law and fact. If they disregard the testimony 
 of respectable witnesses, they assume a fearful 
 responsibility. If they disregard the instructions 
 of the court, they also assume a responsibility not 
 less fearful. Now I do not mean to say that the 
 jury have not the power, and the right, or that it 
 is not their duty, if it so happens that in their 
 consciences they believe that they understand the 
 law better than the court, to follow the convictions 
 of their own minds, notwithstanding the instruc 
 tions of the court, just as it is their right, upon 
 receiving the testimony of the witnesses, to say 
 according to their honest convictions that they 
 believe, or do not believe it. 
 
 Now, in this state of the case, can we do any 
 thing to protect the rights of juries, or, more 
 properly, the rights of individuals who may be 
 brought before juries ? I have no disposition 
 whatever to impair or weaken, in the slightest 
 degree, the rights of either of these classes of peo 
 ple. I would rather say, let them be preserved, 
 to the fullest extent. But I would ask, whether 
 this attempt to go into this matter and specifically 
 enumerate and define the relative rights of these 
 officers, does not endanger if not impair the rights 
 of juries, or of those persons brought before 
 them? This subject has been so fully argued, 
 that I do not propose to go into much discussion 
 of it. It is always dangerous, where you have 
 general principles laid down and well established 
 in the minds of the community, to ree nact them, 
 or to draw them out into detail ; for whenever 
 you undertake to do anything in detail, there is 
 great danger that your details may leave some 
 particulars unenumerated, and the omissions may 
 necessarily lead to constructions less favorable 
 than the principles would warrant. Expressio 
 unius exclusio alter ius. 
 
 Now, I maintain, that the principles I have 
 
69th day.] 
 
 BILL OF RIGHTS. 
 
 507 
 
 Thursday,] 
 
 MORTON DANA. 
 
 [July 28th. 
 
 announced are not only well established, but 
 that they are guarded, and protected, and fortified, 
 by the well-established law, and in the minds of 
 the community, more strongly than they can be 
 by any constitutional provision. If any one en 
 tertains the apprehension or the supposition that 
 your courts are desirous of exercising arbitrary 
 power, this is one of those cases in which they 
 never can do it successfully. You have now in 
 telligent and independent juries, who will always 
 take care to protect their own rights ; and a court 
 can never control them. If a jury chooses to say 
 that a man is not guilty, whether upon their con 
 struction of the law or the evidence, no court has 
 power to reverse their decision. You have, there 
 fore, in the very nature of the principle, a guar 
 antee stronger than you can obtain, either in a 
 Constitution or anywhere else ; because, from the 
 very nature of things, this power never can be 
 usurped by a court, and taken from a jury. It is 
 impracticable to do so ; and, in this connection, 
 let me say, that we came here, in the first place, 
 to remedy existing evils, not to speculate in the 
 ories, or to mould a new Constitution upon favor 
 ite schemes, which we may adopt, and which may 
 appear well upon paper, with a design to super 
 sede principles which have always operated well. 
 Such would, indeed, be a dangerous experiment. 
 Let me now inquire, if anybody ever knew an 
 instance in which any court, having common law 
 jurisdiction, ever attempted to prevent a jury from 
 deciding a criminal case by a general verdict of 
 guilty or not guilty ? It is said, that on exam 
 ining the principles which our courts have laid 
 down, some propositions may be found which are 
 not sound; but, without inquiry into this matter, 
 I wish to ask, whether, practically, there ever 
 was an attempt, by any court, to interfere with a 
 jury, or to deny to them the right of rendering a 
 verdict of "guilty," or "not guilty," according to 
 their discretion ? No doubt the court have laid 
 down the law, and given instructions to them ; 
 and, according to the provisions of this amend 
 ment, they are required to do so. No doubt the 
 court have laid down the law, and the jxiry have 
 passed upon that law as they have thought proper. 
 No doubt, in all cases, they have respect for it, 
 just as they have respect for the testimony of un 
 impeachable witnesses. They have the power and 
 the right to act according to their own conscien 
 tious convictions, and the court cannot control 
 them, and never has attempted to control them. 
 I think that some complaint was made in regard 
 to a judge in one court, by a gentleman who has 
 advocated this proposition very ably ; and ~it is 
 possible that he might have been treated improp 
 erly ; but that should not aifect a general prin 
 
 ciple. I believe that he desired to address the 
 jury in regard to the constitutionality of some 
 law, and the judge demanded that he should 
 address the court, and not the jury. 
 
 [The fifteen minutes having expired, the ham 
 mer fell.] 
 
 Mr. DANA, for Manchester. I wish the 
 attention of the House for a moment or two, in 
 relation to this subject. I will first ask that the 
 resolution and amendment may be read, so that 
 we may see exactly where we stand. 
 
 The resolution and amendment were accord 
 ingly read by the Secretary. 
 
 Mr. DANA. Perhaps before we get much 
 farther there may be some more amendments 
 accepted. I wish to put this to the Convention, 
 as an argument for dropping the whole matter. 
 Several days ago, the gentleman for Wilbraham. 
 came forward with a resolve materially affecting 
 the life, liberty, and property of every citizen in 
 the Commonwealth. It is presented, and laid 
 upon the table for some time. Then the gentle 
 man makes an argument in its favor, and is per 
 fectly satisfied that it is all right. This morning 
 the gentleman from Northampton comes in and 
 says that he is in favor of the principle, but that 
 you cannot pass the resolves, because juries will 
 be made judges of the sufficiency of the indict 
 ment, of the admissibility of testimony, and of col 
 lateral issues, and of all that occurs in the course of 
 a trial. He moves an amendment in four or five 
 particulars, and the gentleman for Wilbraham at 
 once accepts them all ; and then the resolve is 
 discussed ; and then the gentleman for Wilbra 
 ham comes forward with another amendment, 
 and says we ought to provide for a new trial ; and 
 then the gentleman from Northampton accepts 
 that amendment ; and so we go on. 
 
 Now, let me suggest that this resolution is on 
 its final passage, and when it is passed, somebody 
 may rise and say that there is occasion for another 
 amendment. But it is then too late. Sir, the 
 very first decision of any court will show that 
 something has been overlooked, and you cannot 
 then help yourselves. And what excuse can you 
 give to the people ? We may say that it came up 
 at the end of the session, and that we had not 
 much time to consider it ; that we had the fifteen 
 minutes rule ; that amendments were proposed 
 on one side and on another side, and that we had 
 not time to consider them properly. Then the 
 people will say : " If you had not time to consider 
 the matter properly, why did you not leave it 
 to stand as it was ? " And to that there can be 
 no answer. Now, I submit to the Convention, 
 whether it is worth while to place a great funda 
 mental principle in the Constitution, affecting life 
 
508 
 
 BILL OF RIGHTS. 
 
 [69th day. 
 
 Thursday,] 
 
 DANA. 
 
 [July 28th. 
 
 and liberty, where it is unalterable, with amend 
 ment upon amendment, relating to the sufficiency 
 of testimony, to collateral issues, and many other 
 matters, the meaning of which a large portion of 
 the assembly does not understand, and the effect 
 of which I do not pretend to understand at this 
 moment ? I cannot bring my mind to see what 
 effect the amendment of the gentleman from 
 Northampton will have on the amendment of the 
 gentleman for Wilbraham, or the amendment of 
 the gentleman for Wilbraham. upon his own 
 resolve or upon the amendments of the gentle 
 man from Northampton. 
 
 We have the evidence of the learned gentleman 
 from Taunton (Mr. Morton) against this resolve ; 
 and if the gentleman from Lenox (Mr. Bishop) 
 was in the House, I would appeal to him to give 
 his testimony, as I have no doubt he would, 
 against it. I submit to the House that we 
 had better drop the matter altogether. It was 
 said, and properly, by the gentleman from Bos 
 ton, (Mr. Hillard,) that if the government, as it 
 always is, be represented by a man of superior 
 talent and of great power over the jury, and the 
 criminal, as is too often the case, is represented 
 by any young man who is willing, or is appointed 
 by the court, to take it in hand, what chance has 
 the criminal ? This very morning, Mr. President, 
 I met a young lawyer, who told me that he had 
 been assigned to defend a man on trial for murder, 
 against Mr. Choate as prosecutor, the man not 
 having a dollar to pay for counsel, and asked 
 me if I would consent to act as senior counsel. 
 Now, I should like to know what kind of a chance 
 the criminal .stands of his life hunting up charity 
 counsel, against the head of the American bar, be 
 fore a chance tribunal. The jury being the judges 
 of the law, if the man is found guilty he never 
 can know to use a popular phrase " what hurt 
 him," whether it was the law or the facts. The 
 jury cannot give their reasons, and cannot make 
 known whether they found him guilty because of 
 the law, or the manner in which they interpreted 
 the law. You will have no settled law. There 
 will be one law for one man, and another for 
 another. A law will be constitutional for one 
 man and not for another ; and, what is worse, no 
 man will ever know on what ground he was con 
 victed or acquitted. 
 
 I say, as I had the honor to say yesterday to 
 this Convention, that the division of power is the 
 great security for liberty. I would not give the 
 best court in Christendom power over the law 
 and the fact, in jury cases. I do not wish to give 
 to any twelve men who may be drawn, absolute 
 power over the law and the facts. My security 
 is in the distribution of power. Give me a court 
 
 which shall be responsible for the law, and give 
 me a jury responsible for the facts, and for the ap 
 plication of the law to the facts. 
 
 There is another consideration. If the judge 
 errs in the law, you have a perfect remedy. You 
 may go to the highest tribunal of the State, and 
 set it aside. If the jury err in the law, you can 
 never disturb the verdict because you cannot 
 know whether they err in the law or not. I 
 put this question to the gentleman from North 
 ampton, who says there should be the power to 
 grant new trials : suppose the judge rules all the 
 law in favor of the criminal, how shall he get a 
 new trial ? The supposition seems to be, that the 
 judge rules against the prisoner ; but suppose he 
 rules in his favor, and the jury differ from the 
 judge, the prisoner cannot get a new trial, because 
 all the law was ruled in his favor. But, says the 
 criminal, the jury found the law against me. The 
 judge says, how do you know that? He cannot 
 know it ; no man outside of the jury-room can 
 know it, for the jury do not tell how they found 
 the law. So that if the jury differ from the court, 
 against the prisoner, he cannot get a new trial. 
 
 Then, by this principle, you put the whole 
 criminal law of the Commonwealth into the hands 
 of one juror. One man out of twelve in the jury- 
 box, has a right to defy the whole Commonwealth. 
 You may pass law after law, but if an ingenious 
 advocate can persuade one man on the jury into a 
 misconstruction of the law, he can set the Com 
 monwealth at defiance. But, if the judge make a 
 mistake, you can correct it. Let me call attention 
 to one protection which you will remove, if you 
 adopt this resolve. The gentleman from Taunton, 
 (Mr. Morton,) was perfectly right in saying that 
 you are breaking down the safeguards of the ac 
 cused person. If the judge err in the law, it is a 
 matter of record, and you go to the higher court 
 and get it reversed. Suppose they refuse to re 
 verse it ? Then you come before the legislature, 
 and, if the judgment has not been executed, the 
 legislature may repeal the law. Or, if you have 
 been sentenced, the legislature may reimburse or 
 reinstate you. Then, again, if convicted on an 
 improper construction of the law, the government 
 can protect you by a pardon. I was counsel in a 
 case where the government pardoned a man upon 
 that ground, and I beg the attention of the Con 
 vention to that single case. I defended the man, 
 and the jury put a question to the court, as to the 
 burden of proof. The court were divided upon 
 the subject, but a majority of them were against 
 the prisoner, and he was convicted. That was a 
 matter of record. The case was presented to the 
 governor, and he said, that as the court were 
 divided as to the law, the man ought not to be 
 
69th day.] 
 
 BILL OF RIGHTS. 
 
 509 
 
 Thursday,] 
 
 DANA HALLETT ABBOTT. 
 
 [July 28th- 
 
 hung, in so doubtful a case. The court also re 
 quested the governor to commute the sentence, 
 because the law was so doubtful. Now, had that 
 taken place in the jury-room, it never could have 
 been legally known on what ground the man had 
 been convicted, whether on the law or the facts. 
 As the law now is, the grounds of acquittal or 
 conviction appear on record, so that if unjustly 
 convicted you appeal to the higher court, or to 
 the legislature, or the executive, and the court, 
 or the legislature, or the executive, may reverse, or 
 pardon, or reimburse or reinstate the man. But 
 what comes from the jury never can be known. 
 
 Mr. HALLETT. I desire to ask the gentleman 
 if he means to say that the court cannot grant a 
 new trial, when the verdict is guilty ? 
 
 Mr. DANA. I said nothing of the kind. 
 
 Mr. HALLETT. Does the gentleman mean to 
 say that the court cannot grant a new trial, when 
 the verdict is " guilty," the charge of the judge 
 being in favor of the prisoner ? 
 
 Mr. DANA. If the court rule all the law in 
 favor of the criminal, and the facts are sufficient 
 to warrant a conviction, and the jury find him 
 guilty, he cannot, under that resolve, have a new 
 trial, because the court cannot know how the jury 
 found the law. 
 
 Mr. HALLETT. Is not the petty jury sworn 
 to decide the cause according to the evidence, and 
 is not the law a part of the evidence as well as 
 the facts ; and, therefore, cannot the judge give a 
 new trial, on the ground that the case is against 
 evidence, or against the law, without specifying 
 either ? 
 
 Mr. DANA. I am glad that the gentleman 
 has put the question, for two reasons : it suggests 
 another infirmity in the resolve, and that is, that 
 it makes the law a matter of fact, which has to be 
 proved as a fact. Now I should like to see all the 
 law of the Commonwealth proved, as a matter 
 of fact, before a jury. We shall continue finding 
 difficulties. But let me answer the gentleman s 
 question by putting another ; does he mean that 
 a judge shall set aside a verdict in a criminal case, 
 because the jury, in his opinion, probably erred 
 in the law ? 
 
 [Here the President s hammer fell, the fifteen 
 minutes allowed for speaking, having elapsed. ] 
 
 Mr. ABBOTT, of Lowell. I desire to say a 
 few words upon this matter. I mnt say I am 
 somewhat surprised at the kind of argument used 
 by the gentleman for Manchester, (Mr. Dana,) 
 the gentleman from Boston, (Mr. Hillard,) and 
 others who oppose the passage of this resolve ; and, 
 Sir, I think in the history of all the discussion 
 upon this matter, it will be the first time you ever 
 heard arguments against the adoption of this great 
 
 principle, in criminal trials, on the ground that it 
 was something which would trench upon the 
 rights of criminals. From the beginning to the 
 end of this discussion, it has been claimed by 
 those in favor of the right of criminals, of per 
 sons accused of the commission of offences, that 
 it was the great shield which was to stand between 
 him and an unjust conviction. But, Sir, I do 
 not believe it will ever be heard here, or anywhere 
 else, in practise, that any man when brought be 
 fore any court, will complain of this Convention, 
 or any body which establishes the great principle, 
 that the jury, by the common law, are the judges 
 of the law as well as evidence. But it is claimed 
 that we must pause, because we cannot tell what 
 may be the operation of this resolve ; that a 
 variety of objections may hereafter be raised to it. 
 This argument of my friend for Manchester, 
 (Mr. Dana,) might just as well be brought against 
 almost everything which we have attempted to do 
 here. Here is a great principle, he says, which 
 you propose to establish now, and do you know 
 where you are going, what will be the results, 
 and what objections can be raised ? Sir, may not 
 the moon be proved to be made of green cheese ? 
 Cannot my friend tell us what those objections 
 are, if they exist ? It is not a new question. It 
 has been discussed year after year, and my friend 
 has had his opinions upon the subject, and we 
 have all had our opinions upon the subject, and if 
 there is any objection to this matter, the gentle 
 man for Manchester could state those objections 
 to the Convention, if they are real, and I appre 
 hend that a good many that are not quite so real 
 could be made to appear plausible. Will any man 
 be frightened from his consistency, because he fears 
 that there may be some trouble arising hereafter ? 
 The amendment of the gentleman from North 
 ampton, (Mr. Huntington,) as modified by the 
 amendment of the gentleman for Wilbraham, 
 covers all manner of difficulties, and if it did not, 
 the learned gentleman from Taunton, (Mr. Mor 
 ton,) the gentleman for Manchester, the gentleman 
 from Boston, and all who are troubled upon tlu s 
 subject, could tell you where the trouble is. My 
 friend from Boston (Mr. Hillard) told you, that 
 we must stop short, because the adoption of the 
 resolve would be injuring the criminal. I appre 
 hend criminals would not choose such advocates 
 of their cases. The judges, where the law is 
 apparent upon the face of the indictment, will 
 still have the control of the law. If there is no such 
 law, you can make a motion to quash the indict 
 ment. If it is founded upon an unconstitutional 
 law, the case need not go to the jury, for the right 
 to quash the indictment is left with the court. 
 The court now have the right to set aside the ver- 
 
510 
 
 BILL OF RIGHTS. 
 
 [69th day. 
 
 Thursday,] 
 
 ABBOTT MORTON LORD. 
 
 [July 28th. 
 
 diet of guilty because it is against evidence, and 
 does any man in his senses really believe that, 
 under the amendment of the gentleman from Bos 
 ton, the court will not exercise the power, in any 
 and every case where there is a decided ground of 
 suspicion, that the jury have erred upon the law 
 against the prisoner, to set aside their verdict ? 
 Sir, I apprehend that all these objections come to 
 nothing. The real question is, shall we establish 
 this great principle of the common law, as a part 
 of the Constitution? I, Sir, for one, if this is 
 voted down, desire to have something by which 
 we shall know where we stand. I do not want 
 that anomalous state of things, I may say, with 
 all respect, that ridiculous state of things now ex 
 isting in this Commonwealth. The law as now 
 settled by the court, and I understand the learned 
 gentleman from Taunton agrees to it, that the 
 jury have the power to find the law, but no right 
 so to do ; that they must take the law from the 
 court, and if they exercise on that subject their 
 own consciences and judgments, they violate their 
 oaths. Yet, notwithstanding such is the estab 
 lished rule, the same court, laying it down, say 
 that counsel may argue the law to the jury, 
 although the jury have no discretion on that sub 
 ject, but must follow blindly the directions of the 
 court. To what absurdities and inconsistencies 
 will not a deflection from a great principle lead 
 even grave and learned courts ! What morality 
 is here inculcated ! The jury violate their oaths 
 morally, if they disregard the instructions of the 
 court on the law ; still, counsel are permitted to 
 argue to them, hour after hour, to induce them to 
 do it ; to commit moral purjury. The jury have 
 the power, and a counsel may get up and argue 
 a law to them, and then they have not the right, 
 without a violation of their oaths, to undertake to 
 exercise that power. You may argue a law to 
 the jury all day long, and then the judge gets up 
 and says to the jury : " Gentlemen, you have the 
 power to find the law, but if you exercise that 
 power, you violate your oaths ; you must take 
 the law from the court." 
 
 Mr. MORTON, of Taunton. I understand the 
 gentleman says, that I denied that they had the 
 right to decide what the law is. I said in so 
 many words, if the jury, having heard the direc 
 tion of the court, upon their consciences believe 
 the law was not so, they had the power, and the 
 right, and it was their duty to say so. 
 
 Mr. ABBOTT. I am delighted that the gen 
 tleman from Taunton goes with us, and if the 
 court had so ruled, we should not have needed 
 this resolve. I ask him to put it into the Consti 
 tution so that the judges cannot get by it, and say 
 to the jury : " You have the power, but if you 
 
 exercise that power against the instruction of the 
 court, you violate your oaths." I say, let us have 
 something definite upon this subject, that can be 
 understood and appreciated. The argument of 
 the gentleman from Taunton really cannot be 
 worth much, that there is no evil to be met, be 
 cause the evil has already arisen. The construc 
 tion of the law, as given by the gentleman from 
 Taunton, does not agree with the construction 
 laid down by the highest tribunal of this Com 
 monwealth. I want to constitutionally enact the 
 statement of the law as laid down by the gentle 
 man from Taunton, so that rightfully and legally, 
 and without being told that a man violates his 
 oath, one may have a right to do just what is his 
 duty, and what his conscience tells him to do. So 
 that when the whole matter is before the jury 
 man, and he has received the law from the court, 
 and has brought his conscience and judgment to 
 bear upon the whole subject, he shall have not 
 only the power, but the right, to say that he finds 
 the fact and the law as his conscience directs him. 
 
 Mr. LOUD, of Salem. I yesterday proposed 
 an inquiry to the gentlemen who advocate this 
 resolve. I now desire to inquire, in the first 
 place, of the gentleman who represents Wilbra- 
 ham, (Mr. Hallett,) whether, by this resolve, he 
 does not give absolute power to the court over 
 any finding of the jury r Does not he who stands 
 here, to interfere and protect the rights of the 
 jury against the judges, give by this resolve, the 
 judges absolute power over any finding of the 
 jury which convicts a criminal ? 
 
 I understand he limits that power to the find 
 ing of the jury in case of conviction. Now, is 
 not the conviction of a guilty man as important 
 as the acquittal of an innocent one ? Have not 
 the jury the same right to judge of guilt that they 
 have to judge of innocence? Is it granting a 
 proper power to say to the jury, the judge shall 
 have power over you in case you decide one way, 
 but he shall not have power over you in case you 
 decide the other way ? That is one inquiry which 
 I should like to have the gentleman for Wilbra- 
 ham, (Mr. Hallett,) answer. 
 
 I know of no other escape. If this resolve is 
 adopted, the law is considered a matter of fact, to 
 be proved by evidence. And how is that evidence 
 to be introduced ? According to this resolve, it is 
 to be introduced under the direction of the judge. 
 That is to say, you will give the jury the power 
 of deciding what the law is as a matter of fact, 
 and yet you will give the judge the power of say 
 ing what shall be the evidence of that fact. 
 Now, we all of us who have had any practise 
 in the courts, know that it is not the practise of 
 the judges to allow the jury to read law books 
 
69th day.] 
 
 BILL OF RIGHTS. 
 
 511 
 
 Thursday,] 
 
 LORD. 
 
 [July 28th. 
 
 for themselves. But I want to know, if they are 
 to be the judge of what the law is, why you do 
 not secure to them the right to read the law ? If 
 what the law is, is a fact, that fact is to be proved. 
 If an attorney on one side of the case gets up and 
 reads from a book, and says that is law, they 
 are not to be governed by what he says, but 
 they should be allowed to take the book, and see 
 if there is not something there, on the next page, 
 to qualify the passage quoted, for we all know 
 that lawyers generally select some passage, and 
 read what suits their own purposes, without read 
 ing the clause that qualifies it, and does not suit 
 their purpose ; therefore a juror says : "I should 
 like to take that book for a moment ; I should 
 like to see whether there is not some qualification 
 to what you lay down as law." If the lawyer 
 has read a part of a section, the juror says : " I 
 should like to look into that book, and see if you 
 have read the whole section." Now, Sir, I say 
 that if the law of the case is to be reduced to a 
 matter of fact for the jury to decide, they ought 
 to have the means given them of determining in 
 telligibly what the law is ; and I say, therefore, 
 that experts in the law should be called in to tes 
 tify. When we want to ascertain what the law 
 of any foreign country is, upon any particular 
 subject, we call in some one versed in that foreign 
 law, to testify in relation to it, and we prove it as 
 a matter of fact. We prove it by the testimony 
 of those who have practised in that law. Upon 
 the same ground, if the law is to be made a mat 
 ter of fact for the jury to decide, provision should 
 be made for calling in experts to prove it ; and I 
 say this resolution is imperfect, until such a pro 
 vision is made. 
 
 For instance, a man is indicted and brought 
 before the court for an offence. I say, the charge 
 is not sufficient to convict the man, and I propose 
 to introduce testimony in respect to the law, to 
 prove that fact to the jury. But the judge says, 
 No, Sir ; the same resolution which provides that 
 the jury shall be the judges of the law as well as 
 fact, says that the judge shall determine the ad 
 mission of evidence, and this is a species of evi 
 dence you cannot introduce. Gentlemen propose 
 to give the jury the right to decide upon the law 
 as a matter of fact, and yet they refuse to give 
 them the evidence upon which to decide it. 
 
 Now, I agree entirely with the gentleman from 
 Taunton, that the difficulty with the resolution is 
 not that it affords too much protection to the 
 party charged with crime, but on the other hand 
 that it takes away that protection. I am not at 
 all satisfied with the argument of the gentleman 
 from Lowell, (Mr. Abbott,) upon this subject. 
 I am not satisfied that under this resolution any 
 
 judge in the Commonwealth will have the right 
 to say there is no law upon which a prisoner can 
 be convicted, when it is to be left for the jury to 
 settle the question whether there is a law or not. 
 Your resolve says that the question of law or no 
 law, is to be settled by the jury. Do you mean 
 to put into the hands of different tribunals to 
 settle the question whether the proposition is 
 is law or whether it is not ? Shall the judge set 
 tle it or shall the jury, or will you give them con 
 current jurisdiction ; that is, give it to the power 
 which outstrips the other, for I believe that is the 
 general principle upon which concurrent juris 
 diction operates. The party that can get it in 
 its power first, keeps it and exercises it against 
 the right of the other party. Well, Sir, do you 
 propose to constitute a concurrent jurisdiction 
 on the subject of law or no law ? Is it necessary 
 to the security of the individuals ? Sir, I want to 
 hear the member for Wilbraham answer the last 
 question put to him by the delegate for Manches 
 ter, (Mr. Dana). It is this : whether the friends 
 of this resolve mean to give to the court the 
 power of reversing the decisions of fact made by 
 the jury ? Do they mean that ? And I want to 
 know if the gentlemen who mean that, are not 
 those who are standing up for the rights of juries 
 against judges ? I have not heard any gentleman 
 say there is not a gentleman upon this floor 
 who dares to stake his reputation upon denying 
 that the judge ought to have the power to revise 
 the decisions of the jury. Yet, while they give 
 the judges the power to set the verdicts of the 
 juries aside, they will not give them the power to 
 instruct the jury in law. 
 
 Now, Sir, I think the whole trouble has arisen 
 out of confounding all offences with a particular 
 class of offences ; to wit, political offences. All 
 this talk about juries being the judges of the law 
 as well as of the fact, has arisen out of political 
 questions, and nothing else. And political of 
 fences in this country, thank God, are pretty 
 rare ; and they will be rarer in the future than 
 they have been in the past. Very few instances 
 where protection is needed in cases of that char 
 acter, are recorded in the past, or are likely to 
 occur in the future. Well, Sir, the power the 
 jury have and the rights they have upon that 
 subject, in my judgment, are well enough, so far 
 as political offences are concerned, under the 
 present Constitution; and they are the only 
 cases in which any one can desire to have it 
 applied, or in which the principle claimed can be 
 applied. 
 
 Now, Sir, we should either say that the jury 
 should be subject to the court in matters of law, 
 or independent of it. They must be one or the 
 
512 
 
 BILL OF RIGHTS. 
 
 [69th day. 
 
 Thursday,] 
 
 IIUNTINGTOX. 
 
 [July 28th. 
 
 other. And if they are independent, the court 
 has no right to revise their decisions. 
 
 Mr. I1UNT1NGTON, of Salem. Having been 
 a member of the Committee, a portion of which 
 submitted this resolve, I desire to submit a very 
 few remarks concerning it. The subject is one 
 which I regard of the greatest importance, but I 
 am very sure that if the Convention fully under 
 stood the effect of the resolve if they understood 
 fully the designs of the gentleman who proposed 
 it, they would not adopt it. I understand the 
 gentleman to mean by this resolve although 
 it is not expressed in terms to mean by it that 
 the jury shall have the right, in criminal trials, 
 to determine matters of law against the decisions 
 of the highest tribunals in the country, or the 
 highest tribunals in the world, in every particu 
 lar case. 
 
 Now, Sir, in one view which may be taken of 
 the resolve, I see no harm in it, because, as I under 
 stand it, under the present Constitution, in every 
 case the jury do determine the law and the fact. In 
 most cases, the question submitted to the jury is a 
 question of law and fact. They are sworn to try the 
 issue between the Commonwealth and the defend 
 ant, and of course they pass, and must pass, upon 
 the law as well as upon the fact. There is, how 
 ever, no occasion for this resolve to accomplish this 
 object, because it is already accomplished by the 
 existing laws. The principle has never been 
 doubted. They are to determine matters of law, 
 under the direction of the court. 
 
 Mr. HALLETT, (interrupting). I would sug 
 gest to the gentleman that they have not absolute 
 jurisdiction. 
 
 Mr. HUNTINGTON. I cannot yield to the 
 gentleman to interrupt me. I say that if this 
 resolve only declares that, it only declares what 
 is now law, and what, from the very nature of 
 the case, must be the fact. The jury, in a crim 
 inal case, have the law submitted to them as evi 
 dence, and they must bring in their verdict of 
 guilty or not guilty upon their decision of the 
 law as well as the fact, and therefore I say, in 
 this view of the case, I can see no harm in the 
 resolve. But the gentleman who introduced it 
 means something different from this. He in 
 tends to provide that when general law, or if you 
 please, constitutional law, has been determined 
 by the supreme court of the Commonwealth, the 
 jury may disregard that decision. He means 
 that when a question of constitutional law has 
 been carried from the judicial tribunals of this 
 Commonwealth to the supreme court of the United 
 States, and decided there, by the highest judicial 
 authority in the country, that a jury of twelve men, 
 brought into court for the first time in their lives, 
 
 to try a particular case, involving these questions 
 of law which have thus received the highest judi 
 cial decision, may disregard that decision. 
 
 But the friends of the resolve see difficulties in 
 carrying out this principle. They have slept 
 upon it over night, and they find some little diffi 
 culty in submitting absolutely, without control 
 or remedy, all questions of law to a jury of twelve 
 men ; and this morning they propose an amend 
 ment, providing that, in case of conviction, the 
 court may set aside the verdict, because the jury 
 may have decided the law wrongfully. Now I 
 submit that there is no reason in making this 
 provision, whatever. The jury should either be 
 the judges of the law, or they should not be the 
 judges. If it is safe and right to make the jury 
 the judges of the law, absolutely and indepen 
 dently, in any particular case, then say so. But 
 gentlemen are not prepared for that. O no ; 
 they are not prepared to trust to the judgment of 
 a jury of twelve men in case of conviction ; they 
 want the power, in that case, of appealing from the 
 jury to the court. If the jury acquit, there is an 
 end of the matter. There is no remedy. The 
 community have no remedy, although the pris 
 oner may have been ever so improperly acquitted. 
 But if the verdict is guilty, then they may come 
 in and ask the court to set aside the verdict. It 
 shows that gentlemen are afraid of that princi 
 ple. It shows that they are afraid to trust to the 
 jury so important a principle, but, upon the con 
 trary, they themselves want the privilege of ap 
 pealing to the impartiality of the court, in case of 
 conviction. 
 
 Mr. President : We live under a government of 
 laws, and we have the right to the protection of 
 law. We have the right to be judged by the 
 laws of the Commonwealth, as they have been 
 interpreted by the highest judicial authority, and 
 as they are known to exist. Now I undertake 
 to say, that if this resolve be adopted, and you 
 give to it the force which the gentleman for Wil- 
 braharn claims for it, that the juries will become 
 the absolute judges of the law, independent of the 
 court, and independent of former judicial de 
 cisions, and no man knows what the law is. No 
 man can tell one day, what ihe law will be the 
 next. When two cases, arising upon precisely 
 the same state of facts, one case is submitted 
 to one jury, and they find a verdict of guilty ; 
 and the other case is submitted to another jury, 
 upon the same state of facts precisely, and they 
 find a verdict of not guilty. Is that a govern 
 ment of laws? Are we to be protected under 
 laws thus decided, and thus administered ? 
 
 Sir, I regard the judicial tribunal, as consti 
 tuted in this Commonwealth, as the most perfect 
 
69th day.] 
 
 BILL OF RIGHTS. 
 
 513 
 
 Thursday,] 
 
 HUNTINGTON KEYES. 
 
 [July 28th. 
 
 instrument ever invented by man. The discov 
 ery of a practical, learned, and impartial court to 
 expound and interpret the laws, and of a set of 
 impartial men, selected from the various classes 
 of community, to judge of, and determine the 
 facts of the case, I regard as the most important 
 invention, and the most perfect instrument which 
 ever emanated from the mind of man. 
 
 But with this resolve, as interpreted by the 
 gentleman bringing it forward, I maintain we 
 have no security. Ordinarily, in quiet times, I 
 admit that perhaps it will make but little differ 
 ence ; but in cases of great excitement, upon which 
 the public opinion is divided and particularly in 
 regard to a political offence I maintain that this 
 is a power which should not be given to a jury. 
 
 I mean to say, in cases where the public senti 
 ment is much divided, because these gentlemen 
 are disposed to put the law as well as the fact to 
 the jury. I presume to say, that an y gentleman 
 who should undertake to argue the question of 
 fact or law arising out of a case, where public 
 opinion was strongly divided, could get one or 
 two jurymen who would stand out. Sir, I pray 
 gentlemen to consider the effect of this resolu 
 tion as the gentleman designed it. I regard it as 
 a very dangerous innovation, if that construction 
 is put upon it, as I suppose it will be. 
 
 Mr. KEYES, for Abington. Sir, I hope that 
 the Convention, in consequence of what has 
 occurred here this morning, will not, at least, 
 be frightened into a decision on this question. 
 After having had it pretty thoroughly discussed 
 yesterday, and a vote taken by a large majority in 
 favor of these resolutions, and the end having 
 arrived, as in ordinary cases of the end of a dis 
 cussion, there has been a perfect avalanche of 
 speeches on one side, as if by some combination 
 it had been determined to frighten the Conven 
 tion from its propriety, if there was any pro 
 priety in the decision of the Convention yester 
 day. Now, I do not know but there may have 
 been a great deal of reason in the speeches which 
 we have heard to-day, but at least, they have not 
 affected my nerves at all. If there is any virtue 
 in persistence, the gentlemen on that side of the 
 question have a great deal of virtue, I confess. 
 
 Sir, in what position does the case now stand ? 
 We have it confessed on all hands, and more 
 completely by the gentleman who has just taken 
 his seat, that the provisions of this resolution are 
 now the law, that they have always been the law. 
 We all know that judge after judge, sitting on 
 the bench, has told the jury himself that that was 
 the law, and asked them to decide in that manner 
 and on that principle. Now, where is the dan 
 
 ger 
 
 ? Where have been the immense evils which 
 
 35 3 
 
 have been pictured before us to-day so brilliantly, 
 and who has seen them? The story has been 
 repeated over and over again, and after all, these 
 frightful effects have been proved to be only imag 
 inary. Why not adopt this, and make universal 
 what is now only partial ? It is confessed that this 
 same principle was adopted and was universal till 
 1828 ; and whether universal or not, there were a 
 thousand cases which could be pointed out where 
 the judge on the bench himself has told the jury 
 before him, that they had all this power. And, 
 how have they exercised it ? Have any of these 
 evils resulted from it, of which there is said*to be 
 so much danger ? Not one. There is no pre 
 tence that one of them has ever resulted from it. 
 Now, with regard to that point which the gen 
 tleman for Manchester, (Mr. Dana,) made, that 
 they were to be the judges of evidence. I do 
 not think there is much necessity for this very 
 amendment which has been offered this morning. 
 The resolution does not touch any present power 
 of the judges. If they can now grant a new 
 trial, they can as well under this resolution, with 
 out the amendment. Now, I say that the decision 
 of the judge on the admissibility of evidence, 
 does not prevent the jury from entertaining an 
 opinion, and being influenced by the opinion of 
 the judge on the question of the evidence. Who 
 ever sat on a jury that did not know that the 
 very fact of listening to what it was proposed to 
 prove by a witness, had its effect, though the 
 witness was rejected ? It would have as much 
 weight on a jury as if the testimony had been 
 received. Suppose a witness is brought on and 
 the counsel tells what he means to prove, and gives 
 the reason for it ; and suppose the judge rejects 
 the witness. The jury will decide in their own 
 minds whether he is properly rejected or not, and 
 on what grounds he is rejected. At any rate, 
 whether they allow themselves to take notice of 
 the precise language which it is said the witness 
 would utter, or not, the purpose for which he 
 was introduced, and the reasons for which he was 
 rejected, will have an influence on the minds of 
 the jury. They cannot help it ; they never ought 
 to help it ; but every step in the progress of the 
 trial, and every decision that that judge makes, 
 all go to affect the minds and opinions of that 
 
 jury- 
 Now, this resolution, as originally stated, leaves 
 all the present power of the judges to them. They 
 reject the evidence or admit it, or grant a new 
 trial or not, in the same manner as they would 
 under this amendment. 
 
 But I only rose to speak of the position that we 
 occupied yesterday, compared with what appears 
 to be the position of some to-day. Whether our 
 
514 
 
 BILL OF RIGHTS. 
 
 [69th day. 
 
 Thursday,] 
 
 KEYES ROCKWELL. 
 
 [July 28th. 
 
 old men saw visions and our young men dreamed 
 dreams last night, or not, I cannot say. But I should 
 suppose they had all eaten hearty suppers and fed 
 on horrors, that they should be so harrassed and 
 alarmed to-day, when they were so quiet and 
 calm yesterday. I have seen nothing of these 
 horrors which we are to have result from this. 
 We have had experience on this subject ; and the 
 experience of a hundred years is better than all 
 their imaginations. And when the judges in the 
 past, in all these years, have informed juries that 
 they had this power and that they might exercise 
 it, an^ when it is supposed they did exercise it, 
 we still hear how dangerous it is. There is no 
 danger, as has been proved ; and there has not 
 been an example brought forward to show that it 
 is not as safe as any other mode. 
 
 I will now refer to the case spoken of by the 
 gentleman from Boston. He says, that in nine 
 cases out of ten, it will make no difference. I 
 agree that it will make no difference, because the 
 tendency of the juries is to take the law from the 
 court. The judge, sitting in authority, and 
 clothed with knowledge and character, always 
 has an overpowering influence over the jury 
 men, and the tendency is always in that direc 
 tion, to take away from the jurymen their 
 responsibility. If the jurymen were to have 
 more of the credit or the disgrace of a decision 
 thrown upon them, then they would seek of the 
 learned judge his knowledge to qualify them to 
 come to a correct decision. But this is really the 
 case ; it may happen, sometime or other, that the 
 popular sentiment may have an effect on the de 
 cision of a case. It is just as likely to have an 
 effect 011 the judge as on the jury ; and the ques 
 tion is, where shall we put this authority into 
 the hands of this one man, when affected by pop 
 ular sentiment, or into the hands of twelve men r 
 I would as soon leave the decision to one jury 
 man, as to one judge. I believe that judges are 
 not infallible. I believe that a volume has been 
 published to the world, to show the inconsisten 
 cies of judges in making their decisions, and their 
 mistakes. There is such a volume as that. Then, 
 you see, the judges are not entirely perfect. By 
 putting more responsibility upon the jurors, I ask 
 you if you will not induce them to act more cau 
 tiously, to maintain their own characters ? Be 
 cause, these jurors are respectable men, who wish 
 to maintain a proper standing in society, just as 
 much as the judges do ; and it will be an extra 
 inducement for them to seek from the judge the 
 knowledge which he has, and which they lack 
 themselves. The more that responsibility is 
 placed on them, the more they will feel the ne 
 cessity of acquiring that knowledge from the 
 
 judge which they have not themselves. For 
 these reasons, although I have no objection to 
 the amendment, it strikes me there is no danger 
 in passing the resolution, as we adopted it yester 
 day ; and I do not believe the heavens would fall 
 if we were to pass it in that way. 
 
 Mr. ROCKWELL, of Pittsfield. No man is 
 more disinclined, for a single moment, to inter 
 rupt the progress of this Convention, than I am 
 myself. It is because I consider the question to 
 be in the condition that it is, that I wish to say a 
 few words expressive of my opinion on the sub 
 ject. It is because there is a persistence, upon 
 both sides of this question, and for the reason 
 that time and time again might be given, for the 
 consideration of important questions here, that 
 the rules which govern us have been adopted, as 
 I apprehend. And time and time again does it 
 happen, as every man knows who knows any 
 thing about legislative assemblies, that proposi 
 tions which have passed their first and second 
 stages by a great majority, have been defeated by 
 common consent at the last or a subsequent stage. 
 
 Now this is a practical question. The heavens 
 will not fall, however we may decide it to-day ; 
 the heavens may never fall, however it may be 
 decided. Nevertheless, it may be, as I deem it to 
 be, of great importance to this community upon 
 which it is to operate. 
 
 Now, Sir, my practise has been in the country 
 part of the Commonwealth, and I confess here 
 that there have been times, when the law has been 
 pressed hardly upon my clients, when I was ready 
 to go out of the court-room, dissatisfied with the 
 law as laid down by the bench, and ready to vote, 
 and give my influence to give that question to the 
 jury, with whom I might have supposed I would 
 have a better chance for the relief of my client. 
 But, upon cooler reflection, I have been led to 
 doubt how I could follow up these impulses of 
 my mind properly thereafter. Now, what is the 
 situation of those persons usually, who are in 
 dicted in the counties in the country ? Most of 
 them are poor, without pecuniary means ; most 
 of them unable to demand counsel. They have 
 against them always the friends of the Common 
 wealth ; they have against them the most respect 
 able men to take care of the Commonwealth. They 
 must either have no counsel at all, or such counsel 
 as may be induced to volunteer for them, or be ob 
 tained by other motives than those which they can 
 present in a pecuniary form. There is the judge 
 upon the bench, perfectly understanding the law. 
 No matter who their counsel is, so that he present 
 all the points that can be presented in the case. 
 And if any one of them is such that the court can 
 recognize it as a protection to the accused, then he 
 
69th day.] 
 
 BILL OF RIGHTS. 
 
 515 
 
 Thursday,] 
 
 ROCKWELL YEAS. 
 
 [July 28th. 
 
 has the benefit of the law as fully as though he were 
 defended by the ablest counsel that money could 
 obtain. Now how is it that so many persons are 
 indicted every term, and that, in so many cases, 
 the law steps in to relieve them ? Every-body 
 knows it, that knows anything of the practise of 
 our criminal courts. Is this worth nothing ? 
 Consider if you were indicted, as any man may 
 be indicted ; consider if you were brought to the 
 bar of the court of common pleas in this Com 
 monwealth ; consider that you have an able dis 
 trict-attorney learned in the law and armed with 
 experience ; consider that he may call to his aid, 
 also, the best legal talent in the Commonwealth, 
 even the present attorney- general ; consider this 
 to be the situation of the person indicted, and 
 whether he ought not to have, also, the influence 
 of the law and the influence derived from the 
 power to instruct the jury, which the learned 
 judge has. 
 
 But, Sir, this matter may come up perhaps, not 
 to your or my experience, but to the experience, 
 however, of some of our posterity, or of the citi 
 zens of this Commonwealth, in times of political 
 excitement, when that spirit rages which no man 
 who has attempted has succeeded in controlling ; 
 when that mob spirit, which, in the power of the 
 tempest, has no parallel in the comparison, and of 
 which hurricanes and earthquakes are but feeble 
 illustrations when that rages abroad in the com 
 munity, and the accused is brought to the bar 
 where the public opinion is arrayed against him 
 and he receives his doom. What then ? We all 
 claim, every-body claims who knew him, that he 
 was a peace-loving man. What then will be the 
 influence upon that jury, I ask ? Now, it will be 
 said, here has been a verdict of public opinion 
 against the popular sentiment. But a learned 
 judge has declared the law, is bound to declare 
 the law to the jury, and the jury under that in 
 struction has given its verdict. But suppose the 
 judge could walk above that enraged community, 
 and could say that the jury have given a verdict 
 which I would not have given ; I have not in 
 structed them at all ; I am under no responsi 
 bility. Then comes upon the devoted heads of 
 those twelve men, unprotected by the shield of 
 the law, the indignation of the excited commu 
 nity. I do not overdraw this picture at all. I 
 believe there are elements in this community, 
 that in time, may produce these effects. And I 
 have seen them, and any man who has seen them 
 will never forget them. Now the judge is bound 
 and this is my safety and yours also the 
 court is bound to declare the law. As it has been 
 decided, and is the law, that the court is bound 
 to declare it, the judge upon the bench has 
 
 more reasons than one why he should declare it 
 so. In the first place, his legal reputation, which 
 is, in most instances, his only property, is at stake. 
 In the next place he is liable to impeachment ; 
 and the fact that he has given a flagrant decision 
 and flagrant instructions to the jury, under cir 
 cumstances which may lead to corruption, or may 
 be the effect of corruption, is a portion of the 
 evidence which may lead to conviction upon a 
 trial for impeachment, and he knows it. 
 
 Then the protection of the individual is, that in 
 the first place every safeguard which can be given 
 has been thrown by the law around the law itself, 
 and also in the opportunity which he may have 
 before the jury in setting forth the facts of his case. 
 To say nothing of any other reasons, it seems to 
 me that this is conclusive why we should not 
 now allow this innovation to be made. It has 
 been suggested to me by some gentlemen, for 
 whose opinions I have a great respect, that this is 
 one of the reforms of the present time, and that all 
 reforms are resisted, but that all reforms prove to 
 be beneficial. Let us consider that matter. There 
 are millions of reforms proposed, while there are 
 but thousands or perhaps hundreds adopted ; and 
 those are only adopted after undergoing the agony 
 of investigation and argument, persistent argu 
 ment on both sides, stage after stage, and time 
 after time. It is only reforms of that kind which 
 are finally adopted, and which are beneficial. 
 Whether this is one of those, will depend upon 
 the issue of this debate. It is not enough to say 
 to us that this comes in the shape of a reform ; it 
 may be one of those which, like millions of others, 
 has only to be examined in order to be rejected. 
 
 Mr. DAY, of Templeton, then moved the pre 
 vious question. 
 
 Mr. DANA, for Manchester, moved that the re 
 solve and amendments be laid upon the table. 
 
 Mr. EARLE asked the yeas and nays upon 
 the motion of Mr. Dana ; and they were or 
 dered. 
 
 Mr. BROWN, of Medway, moved a reconsid 
 eration of the vote by which the yeas and nays 
 were ordered ; which was agreed to. 
 
 The question then recurred upon the motion 
 for the yeas and nays and they were again 
 ordered, more than one- fifth voting therefor. 
 
 The question being then taken on the motion 
 of Mr. Dana, the result was yeas, 153 j nays, 
 182 as follows : 
 
 Adams, Benjamin P. 
 Aldrich, P. Emory 
 Allen, Joel C. 
 Allen, Parsons 
 Alley, John B. 
 
 Andrews, Robert 
 Aspinwall, William 
 At wood, David C. 
 Ayres, Samuel 
 Ball, George S. 
 
516 
 
 BILLL OF RIGHTS. 
 
 [69th day. 
 
 Thursday,] 
 
 YEAS NAYS. 
 
 [July 28th. 
 
 Barrows, Joseph 
 Bartlett, Russel 
 
 Hinsdale, William 
 Hobart, Aaron 
 
 White, Benjamin 
 Wilbur, Joseph 
 
 Wilson, Milo 
 Winn, Jonathan B. 
 
 Bartlett, Sidney 
 
 Hobbs, Edwin 
 
 Wilder, Joel 
 
 Woods, Josiah B. 
 
 Bates, Eliakim A. 
 
 Hopkinson, Thomas 
 
 Wilkins, John H. 
 
 
 Bell, Luther V. 
 
 Houghton, Samuel 
 
 
 
 Bennett, William, Jr. 
 
 Howland, Abraham H. 
 
 NAYS. 
 
 Bigelow, Jacob 
 
 Hubbard, William J. 
 
 Abbott, Josiah G. 
 
 Graves, John W. 
 
 Bliss, Gad O. 
 
 Hunt, William 
 
 Adams, Shubael P. 
 
 Green, Jabez 
 
 Bradbury, Ebenezer 
 
 Huntington, Asahel 
 
 Allen, James B. 
 
 Greene, William B. 
 
 Bradford, William J. A 
 
 Hurlburt, Samuel A. 
 
 Allis, Josiah 
 
 Griswold, Josiah W. 
 
 Braman, Milton P. 
 
 Jackson, Samuel 
 
 Alvord, D. W. 
 
 Griswold, Whiting 
 
 Brewster, Osmyn 
 
 James, William 
 
 Austin, George 
 
 Hadley, Samuel P. 
 
 Brinley, Francis 
 
 Jenkins, John 
 
 Baker, HiUel 
 
 Hallett, B. F. 
 
 Briggs, George N. 
 
 Jenks, Samuel H. 
 
 3ates, Moses, Jr. 
 
 Hapgood, Lyman W. 
 
 Buck, Asahel 
 
 Kellogg, Giles C. 
 
 3eal, John 
 
 Hapgood, Seth 
 
 Bullock, Rufus 
 
 Kendall, Isaac 
 
 Bennett, Zephaniah 
 
 Haskins, William 
 
 Bumpus Cephas C. 
 
 Kinsman, Henry W. 
 
 Bigelow, Edward B. 
 
 Hawkes, Stephen E. 
 
 Carter, Timothy W. 
 
 Knight, Joseph 
 
 Bird, Francis W. 
 
 Hayden, Isaac 
 
 Chandler, Amariah 
 
 Knowlton, Charles L. 
 
 Boutwell, George S. 
 
 Hazewell, Charles C. 
 
 Chapin, Chester W. 
 
 Kuhn, George II. 
 
 3outwell, Sewell 
 
 Heath, Ezra, 2d, 
 
 Chapin, Daniel E. 
 
 Ladd, John S. 
 
 Breed, Hiram N. 
 
 Hewes, James 
 
 Childs, Josiah 
 
 Littlefield, Tristram 
 
 Bronson, Asa 
 
 Hewes, William H. 
 
 Coggin, Jacob 
 
 Livermore, Isaac 
 
 Brown, Adolphus F. 
 
 Hobart, Henry 
 
 Cogswell, Nathaniel 
 
 Lord, Otis P. 
 
 Brown, Alpheus R. 
 
 Hood, George 
 
 Cole, Lansing J. 
 
 Lothrop, Samuel K. 
 
 Brown, Artemas 
 
 Hooper, Foster 
 
 Conkey, Ithamar 
 
 Loud, Samuel P. 
 
 Brown, Hammond 
 
 Howard, Martin 
 
 Cooledge, Henry F. 
 
 Lowell, John A. 
 
 Brownell, Frederick 
 
 Hoyt, Henry K. 
 
 Copeland, Benjamin F 
 
 Marvin, Theophilus R. 
 
 Brownell, Joseph 
 
 Hunt, Charles E. 
 
 Crittenden, Simeon 
 
 Miller, Seth, Jr. 
 
 Bryant, Patrick 
 
 Huntington, Charles P, 
 
 Crockett, George W. 
 
 Mixter, Samuel 
 
 Burlingame, Anson 
 
 Hurlbut, Moses C. 
 
 Crosby, Leander 
 
 Morey, George 
 
 Caruthers, William 
 
 Hyde, Benjamin D. 
 
 Crowcll, Seth 
 
 Morton, Elbridge G. 
 
 Case, Isaac 
 
 Ide, Abijah M., Jr. 
 
 Curtis, Wilber 
 
 Noyes, Daniel 
 
 Clark, Henry 
 
 Jacobs, John 
 
 Dana, Richard II., Jr. 
 
 Orcutt, Nathan 
 
 Clark, Ransom 
 
 Johnson, John 
 
 Davis, Solomon 
 
 Park, John G. 
 
 Clark, Salah 
 
 Keyes, Edward L. 
 
 Dawes, Henry L. 
 
 Parker, Adolphus G. 
 
 Clarke, Alpheus B. 
 
 Kimball, Joseph 
 
 Deming, Elijah S. 
 
 Parsons, Thomas A. 
 
 Clarke, Stillman 
 
 Kingrnan, Joseph 
 
 Deiiison, Hiram S. 
 
 Peabody, George 
 
 Cleverly, William 
 
 Knight, Hiram 
 
 Dorman, Moses 
 
 Perkins, Jonathan C. 
 
 Cole, Sumner 
 
 Knight, Jefferson 
 
 Eames, Philip 
 
 Plunkett, William C. 
 
 Crane, George B. 
 
 Knowlton, J. S. C. 
 
 Eaton, Lilley 
 
 Pomroy, Jeremiah 
 
 Cressy, Oliver S. 
 
 Knowlton, William II. 
 
 Edwards, Samuel 
 
 Putnam, John A. 
 
 Cushman, Thomas 
 
 Knox, Albert 
 
 Ely, Homer 
 
 Read, James 
 
 Cutler, Simeon N. 
 
 Ladd, Gardner P. 
 
 Eustis, William T. 
 
 Reed, Sampson 
 
 Davis, Charles G. 
 
 Langdon, Wilber C. 
 
 Farwell, A. G. 
 
 Rockwell, Julius 
 
 Davis, Ebenezer 
 
 Lawrence, Luther 
 
 Fay, Sullivan 
 
 Sampson, George R. 
 
 Davis, Robert T. 
 
 Leland, Aldeii 
 
 Foster, Aaron 
 
 Sanderson, Chester 
 
 Day, Gilman 
 
 Loomis, E. Justin 
 
 Fowle, Samuel 
 
 Sargent, John 
 
 Dean, Silas 
 
 Marcy, Laban 
 
 Fowler, Samuel P. 
 
 Schouler, William 
 
 Deiiton, Augustus 
 
 Marvin, Abijah P. 
 
 French, Charles II. 
 
 Sikes, Chester 
 
 Dunham, Bradish 
 
 Mason, Charles 
 
 Gale, Luther 
 
 Sleeper, John S. 
 
 Earle, John M. 
 
 Merritt, Simeon 
 
 Gardner, Henry J. 
 
 Smith, Matthew 
 
 Easton, James, 2d, 
 
 Monroe, James L. 
 
 Gilbert, Wanton C. 
 
 Souther, John 
 
 Eaton, Calvin D. 
 
 Moore, James M. 
 
 Giles, Joel 
 
 Stetson, Caleb 
 
 Edwards, Elisha 
 
 Morss, Joseph B. 
 
 Gould, Robert 
 
 Stevens, Charles G. 
 
 Ely, Joseph M. 
 
 Morton, Marcus, Jr. 
 
 Goulding, Dalton 
 
 Stevens, Granville 
 
 Fellows, James K. 
 
 Morton, William S. 
 
 Goxilding, Jason 
 
 Sunnier, Increase 
 
 Fisk, Lyman 
 
 Nash, Hiram 
 
 Gray, John C. 
 
 Talbot, Thomas 
 
 Foster, Abram 
 
 Nichols, William 
 
 Hale, Artemas 
 
 Tileston, Edmund P. 
 
 Freeman, James M. 
 
 Nute, Andrew T. 
 
 Hammond, A. B. 
 
 Train, Charles R. 
 
 French, Charles A. 
 
 Orne, Benjamin S. 
 
 Harmon, Phineas 
 
 Turner, David 
 
 French, Rodney 
 
 Osgood, Charles 
 
 Haskell, George 
 
 Upham, Charles W. 
 
 French, Samuel 
 
 Packer, E. Wing 
 
 Hathaway, Elnathai: 
 
 P. Walcott, Samuel B. 
 
 Frothingham, R., Jr. 
 
 Paine, Benjamin 
 
 Hayward", George 
 
 Wallace, Frederick T. 
 
 Gardner, Johnson 
 
 Paine, Henry 
 
 Heard, Charles 
 
 Walker, Samuel 
 
 Gates, Elbridge 
 
 Parris, Jonathan 
 
 Henry, Samuel 
 
 Weeks, Cyrus 
 
 Gilbert, Washington 
 
 Partridge, John 
 
 Horsey, Henry 
 
 Wetmore, Thomas 
 
 Giles, Charles G. 
 
 Pease, Jeremiah, Jr. 
 
 Hillard, George S. 
 
 Wheeler, William F. Gooding, Leonard 
 
 Penniman, John 
 
69th day.] 
 
 CONSTITUTIONAL CONVENTIONS, &c. 517 
 
 Thursday,] 
 
 ABSENT MORTON LORD. [July 28th. 
 
 Perkins, Daniel A. 
 
 Sumner, Charles Turner, David P. Warner, Marshal 
 
 Perkins, Jesse 
 
 Swain, Alanson 
 
 Tyler, John S. Whitney, James S. 
 
 Perkins, Noah C. 
 
 Taft, Arnold 
 
 Tyler, William Wilkinson, Ezra 
 
 Phelps, Charles 
 
 Thayer, Joseph 
 
 Upton, George B. Winslow, Levi M. 
 
 Pierce, Henry 
 
 Thayer, Willard, 2d 
 
 Wales, Bradford L. Wood, Nathaniel 
 
 Pool, James M. 
 
 Thomas, John W. 
 
 
 Powers, Peter 
 
 Thompson, Charles 
 
 Absent and not voting, 84. 
 
 Rantoul, Robert 
 
 Tilton, Abraham 
 
 
 Rawson, Silas 
 
 Tilton, Horatio W. 
 
 So the motion was not agreed to. 
 
 Rice, David 
 
 Underwood, Orison 
 
 The question then recurred on the motion of 
 
 Richards, Luther 
 Richardson, Daniel 
 Richardson, Nathan 
 
 Viles, Joel 
 Vinton, George A. 
 Wallis, Freeland 
 
 Mr. Day, of Templeton, that the main question 
 be now put ; which was agreed to. 
 
 Richardson, Samuel H 
 
 . Walker, Amasa 
 
 The first question was on the amendment of 
 
 Ring, Elkanah, Jr. 
 
 Ward, Andrew H. 
 
 Mr. Huntington, of Northampton, to add at the 
 
 Rogers, John 
 
 Warner, Samuel, Jr. 
 
 close of the resolve, the following : 
 
 Ross, David S. 
 
 Waters, Asa H. 
 
 
 Royce, James C. 
 
 Weston, Gershom, B. 
 
 But it shall be the duty of the court to super 
 
 Sanderson, Amasa 
 
 White, George 
 
 intend the course of the trial, to decide upon the 
 
 Sherril, John 
 
 Whitney, Daniel S. 
 
 admission or rejection of evidence, upon all ques 
 
 Simmons, Perez 
 
 Wilbur, Daniel 
 
 tions of law raised during the trial, and upon all 
 
 Simonds, John "W. 
 
 Williams, Henry 
 
 collateral and incidental proceedings, and also to 
 
 Sprague, Melzar 
 
 Williams, J. B. 
 
 allow bills of exceptions ; and the court may 
 
 Spooner, Samuel W. 
 
 Wilson, Henry 
 
 grant a new trial in cases of conviction. 
 
 Stacy, Eben H. 
 
 Wilson, Willard 
 
 
 Stevens, Joseph L., Jr. 
 
 Wood, Charles C. 
 
 The amendment was agreed to ; and the re 
 
 Stevens, William 
 Stiles, Gideon 
 
 Wood, Otis 
 Wood, William H. 
 
 solve, as thus amended, was passed. 
 
 Strong, Alfred L. 
 
 Wright, Ezekiel 
 
 Amendments of the Constitution. 
 
 ABSENT. 
 
 Abbott, Alfred A. Hale, Nathan 
 Allen, Charles Hall. Charles B. 
 
 The resolves on the subject of Amendments of 
 the Constitution were then taken up, and read the 
 
 Appleton, William 
 
 Heywood, Levi 
 
 second time, as amended ; and the question was 
 
 Ballard, Alvah 
 
 Holder, Nathaniel 
 
 stated on their final passage. 
 
 Bancroft, Alpheus 
 
 Huntiiigton, George H. 
 
 Mr. MORTON, of Quincy. Mr. President : 
 
 Banks, Nath l P., Jr. 
 Barrett, Marcus 
 Beach, Erasmus D. 
 
 Kellogg, Martin R. 
 Lawton, Job G., Jr. 
 Lincoln, Abishai 
 
 This subject has been considered by the Conven 
 tion at length ; the resolves have been printed, 
 
 Beebe, James M. 
 
 Lincoln, F. W., Jr. 
 
 and put into the hands of every member of this 
 
 Bishop, Henry W. 
 
 Little, Otis 
 
 body, so that there has been a full opportunity to 
 
 Blagden, George W. 
 
 Marble, William P. 
 
 examine the whole subject, and I think we are 
 
 Bliss, William C. 
 Booth, William S. 
 Brown, Hiram C. 
 Bullen, Amos H. 
 
 Meader, Reuben 
 Morton, Marcus 
 Nayson, Jonathan 
 Newman, Charles 
 
 prepared to vote upon it without any farther dis 
 cussion. I therefore move the previous question. 
 Mr. LORD, of Salem. I want to know if the 
 
 Butler, Benjamin F. 
 
 Norton, Alfred 
 
 previous question was not ordered on this matter 
 
 Cady, Henry 
 
 Ober, Joseph E. 
 
 last night, on the ground that the question was 
 
 Chapin, Henry 
 
 Oliver, Henry K. 
 
 not on the final passage of the resolves, and that 
 
 Choate, Rufus 
 Churchill, J. McKean 
 Cook, Charles E. 
 
 Paige, James W. 
 Parker, Joel 
 Parker, Samuel D. 
 
 there was to be another stage ; and was it not the 
 express uiiderstanding that when they came up on 
 
 Cross, Joseph W. 
 
 Parsons, Samuel C. 
 
 their final passage, there would be an opportunity 
 
 Crowninshield, F. B. 
 
 Payson, Thomas E. 
 
 afforded to discuss them farther ? That is the 
 
 Cummings, Joseph 
 
 Peabody, Nathaniel 
 
 way that I understood it. I do not believe that 
 
 Cushman, Henry W. 
 Davis, Isaac 
 Davis, John 
 
 Phinney, Silvanus B. 
 Preston, Jonathan 
 Prince, F. O. 
 
 this Convention is quite ready to put this matter 
 through without another word being said about 
 
 Dehon, William 
 
 Putnam, George 
 
 it. It is a most important proposition, and I de 
 
 DeWitt, Alexander 
 
 Rockwood, Joseph M. 
 
 sire to have it thoroughly understood before we 
 
 Doane, James C. 
 
 Sheldon, Luther 
 
 proceed to vote upon it ; and I am not ready to 
 
 Duncan, Samuel 
 Durgin, John M. 
 Easland, Peter 
 Fiske, Emery 
 
 Sherman, Charles 
 Stevenson, J. Thomas 
 Storrow, Charles S. 
 Stutson, William 
 
 believe that the Convention will order the previous 
 question without allowing an opportunity for far 
 ther amendments to be proposed. Mr. President, 
 
 Fitch, Ezekiel W. 
 
 Taber, Isaac C. 
 
 I move thaf when the question be taken upon 
 
 Gooch, Daniel W. 
 
 Taylor, Ralph 
 
 ordering the previous question, it be taken by 
 
 Greenleaf, Simon 
 
 Tower, Ephraim 
 
 yeas and nays. 
 
518 
 
 CONSTITUTIONAL CONVENTIONS. 
 
 [69 tli day. 
 
 Thursday,] 
 
 JEXKINS BRADFORD BRADBURY. 
 
 [July 28th. 
 
 Mr. DANA, for Manchester. The gentleman 
 from Salem is right in his statement. 
 
 Mr. MORTON, of Quincy. If the gentle 
 man will allow me, in order to stop discus 
 sion, I withdraw the motion for the previous 
 question. 
 
 The question then recurred on the final passage 
 of the resolves, as amended. 
 
 Mr. JENKINS, of Falmouth. Mr. President : 
 In all future Conventions of the people for the 
 purpose of amending their Constitution, I think it 
 is obviously just and proper that delegates shall 
 be so elected as fully and fairly to represent the 
 will of a majority of the people of the Common 
 wealth. But, Sir, as I understand it, these re 
 solves do not so provide; and to this I object. 
 For the purpose of remedying what I consider to 
 be a defect, I propose to introduce an amendment 
 to the first resolve. I think it is desirable that in 
 all Conventions the people should be fairly and 
 fully represented ; but how is it in this Conven 
 tion ? Here is one of the north-western counties 
 in this Commonwealth, having a population of 
 thirty thousand, and it is represented upon this 
 floor by twenty- six delegates ; and here is another 
 county, having a much larger population, or fifty 
 thousand, which has only twenty-three delegates. 
 Is this a fair representation ? I ask members of this 
 Convention if they regard this as fair and equal r 
 Now, Sir, these resolves, as they are reported, are 
 designed to perpetuate this inequality ; audit is this 
 provision that I wish to strike out. Sir, the gen 
 tleman from Boston, upon my left, said, the other 
 day, that the chain was put about our necks 
 but this provision designs to rivet it there. I 
 agree with him in that expression. Sir, if one 
 portion, and one section, of this Commonwealth 
 is to be disfranchised in part, I think that the 
 emblem of industry in this hall should be taken 
 down. I do not wish to have it there as a me 
 morial of oppression ; and in the name of that 
 portion of the people whom I have the honor to 
 represent here, I protest against this. The amend 
 ment which I propose is this : to strike out the 
 following words, immediately after the word 
 " ensuing," in the first resolve, " Meetings shall 
 be held, and delegates shall be chosen, in all the 
 towns, cities, and districts in the Commonwealth, 
 in the manner and number then provided by law 
 for the election of the largest number of repre 
 sentatives, which the towns and cities shall then 
 be entitled to elect," and to insert in lieu thereof 
 the words : " The qualified voters of each sena 
 torial district in the Commonwealth shall elect, in 
 the same manner as they shall elect senators to 
 
 the general court, delegates." I leave the 
 
 blank for the Convention to fill with such num 
 
 ber as they shall think proper ; and upon the 
 amendment I ask the yeas and nays. 
 
 Mr. BRADFORD, of Essex, moved to amend 
 the amendment, by striking out all after the word 
 " chosen," to the end of the sentence, and insert 
 ing, in lieu thereof, the following : 
 
 In the same manner as the senators shall by 
 
 law be chosen, in the proportion of to each 
 
 senator, to be elected by general ticket in each 
 senatorial district, unless before that time the 
 State shall be by law divided into single districts 
 for that purpose, or for the election of representa 
 tives ; in which case, one delegate shall be chosen 
 for each district thus constituted. 
 
 The question being taken on the amendment 
 to the amendment, it was not agreed to. 
 
 The question being taken on ordering the yeas 
 and nays on the amendment of Mr. Jenkins, on 
 a division there were ayes, 72 ; noes, 158 so 
 the yeas and nays were ordered. 
 
 Mr. BRADBURY, of Newton. This is a prop 
 osition I did not expect to hear, but it is one I 
 very much like. I think it may reach and remedy 
 the enormous evils which must naturally and 
 inevitably result from the constitution of the 
 House of Representatives, as settled by this Con 
 vention. 
 
 If the question were simply w r hether we should 
 now undertake to establish the organic basis for a 
 future Convention, on the principle upon which 
 this body is instituted, I could not give my vote 
 for it, because I should deem it an unjust viola 
 tion of popular rights. The injustice of such a 
 basis was clearly demonstrated during the discus 
 sions of the basis of the House. It was shown 
 that a small minority of the people, as represented 
 in this Convention, had undertaken to establish 
 what shall be the present and prospective consti 
 tution of the House of Representatives ; but I 
 shall not now go into that question, or comment 
 upon what has been definitely decided by the 
 Convention. 
 
 If we are to have another Convention, either 
 in ten, or twenty years, or at any other period, 
 let its constitution rest upon contemporary facts 
 and considerations let it be based upon the pop 
 ulation of the period. I cannot believe that this 
 body fully comprehends the prospective operation 
 of the last modification it gave to the basis of the 
 House of Representatives. That modification 
 was submitted but thirty minutes previous to the 
 final vote, and no adequate examination was, or 
 could be, given to that radical proposition. 
 
 Sir, in 1873, by the resolves under considera 
 tion, a much smaller minority of the people will 
 be here, constituting a controlling majority of a 
 Convention for modifying your organic law, a 
 
69th day.] 
 
 CONSTITUTIONAL CONVENTIONS. 
 
 519 
 
 Thursday,; 
 
 BBADBURY. 
 
 [July 28th. 
 
 minority smaller than that which all men know 
 in and out this house controls the action of 
 this body upon all questions of the division of 
 power, and the assignment of representative rights. 
 
 But this unjust inequality will be constantly 
 augmenting by the legitimate action of the system 
 attempted to be fastened upon the State. By the 
 estimated census of 1870 it will be enormously 
 increased. It will then be but a small portion 
 of the Commonwealth which will possess a con 
 trol over its legislation, and that same small por- 
 on will, by the resolves under consideration, be 
 invested with a power that can, in a Constitu 
 tional Convention, effectually secure that power 
 in its own hand:?. That small minority can, as it 
 pleases, preserve, for its own advantage, the basis 
 of representation, or it can surrender its advan 
 tages and consent to alter the most vital part of 
 your organic law, as an act of magnanimity. 
 The question submitted in such a case will be 
 this : Will you retain the political power with 
 which you are now constitutionally clothed, or 
 surrender magnanimously what has been wrong 
 fully held, if not improperly acquired ? 
 
 Sir, if we are to have a Convention in 1870, 
 founded on the basis of the representation that 
 will then exist, it will be utterly impossible, in any 
 degree, to modify the basis of the House of Repre 
 sentatives. 
 
 There have been, as gentlemen well know, 
 without reference to particular instances, nu 
 merous cases of unequal representation in the 
 political history of the older States of this Union, 
 which have been the result of popular changes 
 and the unequal growth of different sections rep 
 resented. 
 
 I need but advert to a single instance under the 
 Constitution of Virginia. The slave-holding and 
 planting sections of that State controlled the 
 government completely. Less than a third of the 
 free people held a majority of legislative power 
 over the two-thirds, and this minority succeeded, 
 for twenty years, in resisting all attempts at an 
 equalization of representation. But, in 1830, 
 after violent agitation, and an apprehended di 
 vision of that State, a Convention was obtained. 
 Upon the question of representation, those sec 
 tions of the State in possession of an undue share 
 of legislative power, clung tenaciously to the re 
 tention of the power they had enjoyed, and by an 
 adroitness of management not exceeded by mi 
 norities elsewhere, they succeeded, at a late day, 
 in shutting the door to all farther concessions of 
 power to the popular majority. How ? By 
 limiting the future distribution of representatives 
 to counties and cities, so as not to disturb certain 
 lines between slavery and freedom. And here 
 
 we have from gentlemen who detest the motives 
 that guided the minority of that Convention, a 
 carefully prepared plan, having the same object 
 the establishment of a constitutional guarantee of 
 unjust authority and power against the popular 
 majority. 
 
 Sir, there is some extenuation for that commu 
 nity that endures inequalities of representation 
 which have grown up gradually, as the unavoid 
 able result of popular changes, and the varying 
 ratios of increase in its different sections. It is 
 impossible that any advancing community should 
 not change the relations of its different parts, 
 and no honest man will advocate an organic law, 
 destitute of a provision to meet and equalize these 
 relations. All will admit the necessity of some 
 provision of this kind, and no man expects or 
 dares to go before his constituents to defend its 
 omission. 
 
 Now if we are to establish a mode of effecting 
 a change of our organic law, let us have reference 
 to the condition of things which may demand it, 
 and not attempt to bind the future action of the 
 people by an iron rule, made for the present con 
 dition of things. Let us not attempt to confine 
 the people in their future action upon their organ 
 ic law, by a rule founded on the present interests, 
 condition, or politics of the State. Let us not say 
 to the future that it shall act only in the manner 
 which we, under existing circumstances, consider 
 it proper to proceed. 
 
 Sir, I have not the statistics here, but I am sure 
 that a much smaller minority will have the power 
 of determining the time and manner in which the 
 Constitution is to be amended again ; the power 
 of determining what shall be the basis of the 
 House ; and whether, and how long, an increas 
 ing majority of the people of the Commonwealth 
 shall submit to a waning minority. There can be 
 little doubt that the number of members of the 
 House of Representatives will, in 1870, be four 
 hundred and forty, exclusive of those from the 
 new towns, which will be created between now 
 and then. And how many such will be incor 
 porated within that period ? Why, Sir we made 
 seven within the last three years, and according 
 to that ratio, it will give us fifty additional by the 
 creation of new towns up to 1873. Then, Sir, 
 we shall have four hundred and ninety represen 
 tatives, and the majority of the people in that 
 House will have some thirty per cent, less power 
 to rectify that inequality, if this is to be the basis 
 of a Constitutional Convention. I would ask, 
 Sir, what any honest, liberal man, can say against 
 a rule which shall be precisely in proportion to 
 the people as they exist in different parts of the 
 State ? Why should you fix a rule that in 1873 
 
520 
 
 LIMITATION OF DEBATE, &c. 
 
 [69th day. 
 
 Thursday,] 
 
 BRADBURY ALVORD GRISWOLD THOMPSON. 
 
 [July 28th. 
 
 will give to about one-fourth of the people of 
 Massachusetts and I am certain I speak within 
 bounds the right to elect a majority of a Consti 
 tutional Convention which is to have submitted 
 to them the question whether they will retain or 
 surrender that proportion of the law-making 
 power. Sir, it is an enormity that cannot be 
 found in the history of law-making or Constitu 
 tion-altering in the whole country, enormous as 
 they have been, and condemned as they have been, 
 by every man in Massachusetts who has looked 
 at them. Sir, the Rhode Island revolution pro 
 ceeded from the same grasping of power. 
 
 Our forefathers submitted to a rotten-borough 
 system and its enormities, for a while, but they 
 did not from choice^ It grew up with the pecu 
 liar institutions under which they lived. And 
 here we are, without any excuse or extenuation, 
 sending out, at the last hour of a protracted Con 
 vention, a system of representation which we 
 know will grow more and more unequal every 
 year. And more and more inexcusable we 
 now propose, as a future remedy for the inequal 
 ities we have created, to submit the question of 
 their rectification to the magnanimity of their ben 
 eficiaries ! If an aggrandized minority choose to 
 grant the principle of equal representation, the 
 people will gain their rights, if not, they must 
 endure them for two more decades for a new 
 chance. 
 
 Sir, I wish some gentleman, better posted up 
 in these prospective legislative statistics than I 
 am, had risen to present to the Convention more 
 clearly the inequalities thus produced, and the 
 enormous injustice of submitting the question 
 whether we shall have the Constitution altered 
 in 1783 to a legislature elected by one-fourth of 
 the people of Massachusetts. Sir, I want the 
 people to settle the question ; and I hope that 
 this amendment will be adopted. 
 
 Limitation of Debate, 
 
 Mr. ALVORD, for Montague. In order to let 
 in a motion for the limitation of debate upon this 
 subject, I move that the Orders of the Day be 
 laid upon the table. 
 
 The motion was agreed to. 
 
 Mr. ALVORD. I now move that debate cease 
 upon this subject, and that we proceed to take 
 the vote upon this question at fifteen minutes 
 past one o clock. 
 
 Mr. ASPINWALL, of Brookline. I move 
 that when the question is taken on that motion, 
 it be taken by yeas and nays. 
 
 A division was called for on the demand for 
 the yeas and nays, and resulted 54 in the affirm 
 ative and 133 in the negative and, there being 
 
 more than one-fifth in favor of the yeas and nays, 
 the yeas and nays were ordered. 
 
 Orders of the Day. 
 
 Mr. ALVORD, for Montague. I move that 
 the Convention now proceed to the consideration 
 of the Orders of the Day. 
 
 Mr. GRISWOLD, for En-ing. I wish the 
 gentleman for Montague would withdraw that 
 motion for a moment. I wish to make a motion 
 that will occupy no time. 
 
 Mr. ALVORD. I withdraw the motion for 
 the Orders of the Day. 
 
 Hour of Adjournment. 
 
 Mr. GRISWOLD, for Erving. I understand 
 that there are some matters now pending which 
 it is important should be disposed of to-day, so 
 that they may go to the Committee on Enrolment 
 to-night. I therefore move that our session this 
 afternoon may be continued until eight o clock. 
 
 The PRESIDENT. The question pending 
 before the Convention is on the motion lim 
 iting debate on the Orders of the Day, which has 
 just been laid on the table, and fixing the time 
 for taking the question at fifteen minutes past one 
 o clock. The Chair is of opinion that the motion 
 of the gentleman for Erving is not in order at this 
 time. It may be accomplished by moving to lay 
 the question limiting debate upon the table. 
 
 Mr. GRISWOLD. Then I make that motion. 
 
 The question was accordingly laid upon the 
 table. 
 
 Mr. GRISWOLD. I now move, that in our 
 afternoon session the Convention shall sit until 
 eight o clock this evening. 
 
 Mr. GARDNER, of Boston. I wish to in 
 quire whether, if this motion is adopted, it will 
 preclude the Convention from adjourning at an 
 earlier hour ? 
 
 The PRESIDENT. The Convention can ad 
 journ at any time it pleases. 
 
 Mr. GARDNER. Then I do not see the ob 
 ject of the motion of the gentleman for Erving. 
 
 Mr. GRISWOLD. I think, for the reasons I 
 have stated, it will be necessary for the Conven 
 tion to sit until that time, and I merely make 
 the motion with the view of giving the members 
 notice, so that gentlemen might not leave us 
 without a quorum. 
 
 Mr. THOMPSON, of Charlestown. I very 
 much doubt the expediency of that motion, for 
 I think that long before that period we shall be 
 left without a quorum. We intended last evening 
 to sit somewhat later than usual, but we found 
 that long before seven o clock there was not a 
 quorum here. It appears to me to be inexpedient 
 
69th day.] 
 
 CONSTITUTIONAL CONVENTIONS, &c. 
 
 521 
 
 Thursday,] 
 
 GRISWOLD LORD SCHOULER JENKINS YEAS. 
 
 [July 28th. 
 
 to pass such a vote when it has been thoroughly 
 proved that we cannot have a quorum. And I 
 would ask whether it is possible to act here with 
 out a quorum ? If not, I think we had better wait 
 till the afternoon, and see whether members are 
 here. 
 
 The question on the motion to continue the 
 session until eight o clock was then taken, and 
 on a division, there were ayes, 106 ; noes, 109. 
 
 So the motion was not agreed to. 
 
 Priority of Motions. 
 
 Mr. GRISWOLD. I now move to take the 
 motion of the gentleman for Montague from the 
 table. 
 
 Mr. LORD, of Salem. I am as desirous of 
 hurrying business as anybody, and am sorry to 
 see these motions made, which merely tend to the 
 consumption of time. I move that we proceed 
 to the consideration of the Orders of the Day. 
 
 The PRESIDENT. The Orders of the Day 
 are upon the table. 
 
 Mr. LORD. Precisely, Sir ; so I understood ; 
 and I move to take them up from the table. 
 
 The PRESIDENT. The first question in or 
 der is the motion of the gentleman for Erving, 
 (Mr. Griswold,) to take from the table the motion 
 of the gentleman for Montague, (Mr. Alvord). 
 
 Mr. LORD. I move that the Convention pro 
 ceed to the consideration of the Orders of the Day, 
 and I make that motion as a privileged motion. 
 
 The PRESIDENT. The Orders of the Day 
 are upon the table. 
 
 Mr. LORD. I am aware of it, and move to 
 take them up. 
 
 Mr. GRISWOLD. I wish to inquire whether 
 the motion which I made has not precedence of 
 the motion of the gentleman from Salem ? 
 
 The PRESIDENT. The Chair is of opinion, 
 without having time to reflect upon or consider 
 the subject, that the motion to take up the Orders 
 of the Day will have precedence over the motion 
 fixing the time for closing debate. 
 
 The question was then taken on the motion to 
 proceed to the consideration of the Orders of the 
 Day, and, a division being demanded, there were 
 ayes, 87 ; noes, 126. 
 
 So the motion to take up the Orders of the 
 Day, was not agreed to. 
 
 Mr. GRISWOLD. I now move to take from 
 the table the motion of the gentleman for Mon 
 tague. 
 
 The motion was agreed to. 
 
 The PRESIDENT. The question now recurs 
 on the motion to limit debate on the first question 
 in the Orders of the Day, to fifteen minutes past 
 one o clock. 
 
 Amendments of the Constitution. 
 
 Mr. SCHOULER, of Boston. I now move to 
 take the Orders of the Day, from the table. 
 
 The question was put, and the motion was 
 agreed to. 
 
 The PRESIDENT. The question is upon the 
 amendment of the gentleman from Falmouth, 
 (Mr. Jenkins). 
 
 Mr. JENKINS, of Falmouth. I desire to 
 modify my amendment by striking out the last 
 four lines, all after the word " and," and insert 
 the words " the legal voters of each senatorial 
 district shall, by general ticket, in the manner 
 then provided by law for the election of delegates, 
 choose delegates." 
 
 The PRESIDENT. The question is upon the 
 amendment as modified, and upon that the Con 
 vention have ordered the yeas and nays. 
 
 Mr. SCHOULER. I would inquire if the 
 hour of two o clock should arrive before the 
 calling of the roll shall be finished, would the 
 Convention be adjourned at that time ? 
 
 The PRESIDENT. If the Convention com 
 mence to divide, the rule in relation to the time 
 of adjournment will not interrupt the proceeding. 
 
 The question was then taken, and there were 
 ayes, 90 ; nays, 161 as follows : 
 
 Aldrich, P. Emory 
 Andrews, Robert 
 Atwood, David C. 
 Barrows, Joseph 
 Bartlett, Sidney 
 Bates, Eliakim A. 
 Bigelow, Jacob 
 Bradbury, Ebenezer 
 Braman, Milton P. 
 Bronson, Asa 
 Browncll, Frederick 
 Carter, Timothy W. 
 Cogswell, Nathaniel 
 Cooledge, Henry F. 
 Copeland, Benjamin 
 Crosby, Leander 
 Crowell, Seth 
 Curtis, Wilber 
 Davis, Charles G. 
 Davis, Solomon 
 Dawes, Henry L. 
 Denison, Hiram S. 
 Dorman, Moses 
 Eaton, Lilley 
 Fiske, Emery 
 Fowler, Samuel P. 
 Frothingham, Rich d 
 Gardner, Henry J. 
 Gilbert, Wanton C. 
 Giles, Joel 
 Gould, Robert 
 Gray, John C. 
 Hale, Artemas 
 
 YEAS. 
 
 Hale, Nathan 
 
 Haskell, George 
 
 Hathaway, Elnathan P. 
 
 Heard, Charles 
 
 Hersey, Henry 
 
 Hillard, George S. 
 
 Hinsdale, William 
 
 Hooper, Foster 
 
 Hopkinson, Thomas 
 
 Hubbard, William J. 
 
 Hunt, William 
 
 Huntington, Asahel 
 
 Hurlburt, Samuel A. 
 
 Jackson, Samuel 
 F. James, William 
 
 Jenkins, John 
 
 Kellogg, Giles C. 
 
 Kinsman, Henry W. 
 
 Kuhn, George, H. 
 
 Ladd, John S. 
 
 Lawton, Job G., Jr. 
 
 Lincoln, Frederic W., Jr. 
 
 Littlefield, Tristram 
 
 Liver-more, Isaac 
 
 Lord, Otis P. 
 
 Lothrop, Samuel K. 
 , Jr. Lowell, John A. 
 
 Miller, Seth, Jr. 
 
 Morey, George 
 
 Morton, Marcus 
 
 Noyes, Daniel 
 
 Oliver, Henry K. 
 
 Orne, Benjamin S. 
 
522 
 
 CONSTITUTIONAL CONVENTIONS. 
 
 [69th day. 
 
 Thursday,] 
 
 NAYS ABSENT. 
 
 [July 28th. 
 
 Park, John G. 
 
 Tileston, Edmund P. Partridge, John 
 
 Stiles, Gideon 
 
 Parker, Samuel D. 
 
 Train, Charles R. 
 
 Pease, Jeremiah, Jr. 
 
 Taft, Arnold 
 
 Peabody, George 
 
 Upham, Charles W. 
 
 Penniman, John 
 
 Thayer, Willard, 2d 
 
 Perkins, Daniel A. 
 
 Upton, George B. 
 
 Perkins, Jesse 
 
 Thomas, John W. 
 
 Plunkett, William C. 
 
 Wales, Bradford L. 
 
 Perkins, Noah C. 
 
 Tilt on, Abraham 
 
 Rantoul, Robert 
 
 Walker, Samuel 
 
 Phelps, Charles 
 
 Tilton, Horatio W. 
 
 Read, James 
 
 Weeks, Cyrus 
 
 Pierce, Henry 
 
 Turner, David 
 
 Reed, Sampson 
 
 Wetmore, Thomas 
 
 Pomroy, Jeremiah 
 
 Turner, David P. 
 
 Sargent, John 
 
 Wheeler, William F. 
 
 Pool, James M. 
 
 Viles, Joel 
 
 Stevens, Charles G. 
 
 Wilkins, John II. 
 
 Rawson, Silas 
 
 Vinton, George A. 
 
 Talbot, Thomas 
 
 Williams, Henry 
 
 Rice, David 
 
 Wallace, Frederick T. 
 
 Thompson, Charles 
 
 Wilson, Milo 
 
 Richards, Luther 
 
 Wallis, Freeland 
 
 
 
 Richardson, Daniel 
 
 Ward, Andrew H. 
 
 NAYS. 
 
 Richardson, Nathan 
 
 Warner, Samuel, Jr. 
 
 Abbott, Josiah G. 
 
 Gale, Luther 
 
 Richardson, Samuel H. 
 
 White, Benjamin 
 
 Adams, Shubael P. 
 
 Giles, Charles G. 
 
 Ring, Elkanah, Jr. 
 
 White, George 
 
 Allen, Charles 
 
 Gooding, Leonard 
 
 Rockwood, Joseph M. 
 
 Whitney, Daniel S. 
 
 Allen, James B. 
 
 Goulding, Dalton 
 
 Rogers, John 
 
 Whitney, James S. 
 
 Allen, Joel C. 
 
 Graves, John W. 
 
 Ross, David S. 
 
 Wilson, Henry 
 
 Allen, Parsons 
 
 Green, Jabez 
 
 Royce, James C. 
 
 Wilson, Willard 
 
 Alvord, D. W. 
 
 Griswold, Josiah W. 
 
 Sanderson, Amasa 
 
 Winslow, Levi M. 
 
 Baker, Hillel 
 
 Griswold, Whiting 
 
 Sherril, John 
 
 Wood, Charles C. 
 
 Ball, George S. 
 
 Hallett, B. F. 
 
 Simonds, John W. 
 
 Wood, Otis 
 
 Bancroft, Alpheus 
 
 Hapgood, Lyman W. 
 
 Smith, Matthew 
 
 Wood, William H. 
 
 Barrett, Marcus 
 
 Hapgood, Seth 
 
 Spooner, Samuel W. 
 
 AVoods, Josiah B. 
 
 Bates, Moses, Jr. 
 
 Harmon, Phineas 
 
 Stacy, Eben H. 
 
 Wright, Ezekiel 
 
 Bennett, William, Jr. 
 
 Hawkes, Stephen E. 
 
 Stevens, William 
 
 O * 
 
 Bennett, Zephaniah 
 
 Hayden, Isaac 
 
 
 
 Bigelow, Edward B. 
 
 Heath, Ezra, 2d, 
 
 ABSENT. 
 
 Bird, Francis W. 
 
 Hewes, James 
 
 Abbott, Alfred A. 
 
 Cleverly, William 
 
 Booth, William S. 
 
 Hewes, William H. 
 
 Adams, Benjamin P. 
 
 Coggin, Jacob 
 
 Boutwell, Sewell 
 
 Hobart, Henry 
 
 Alley, John B. 
 
 Cole, Lansing J. 
 
 Breed, Hiram N. 
 
 Hobbs, Edwin 
 
 Allis, Josiah 
 
 Cole, Sumner 
 
 Brinley, Francis 
 
 Hood, George 
 
 Appleton, William 
 
 Conkey, Ithamar 
 
 Briggs, George N. 
 
 Howard, Martin 
 
 Aspinwall, William 
 
 Cook, Charles E. 
 
 Brown, Artemas 
 
 Howland, Abraham H. 
 
 Austin, George 
 
 Crittenden, Simeon 
 
 Brownell, Joseph 
 
 Hoyt, Henry K. 
 
 Ayres, Samuel 
 
 Crockett, George W. 
 
 Bryant, Patrick 
 
 Huntington, Charles P. 
 
 Ballard, Alvah 
 
 Cross, Joseph W. 
 
 Cady, Henry 
 
 Huntington, George H. 
 
 Banks, Nathaniel P., Jr. Crowninshield, F. B. 
 
 Case, Isaac 
 
 Hurlbut, Moses C. 
 
 Bartlett, Russel 
 
 Cummings, Joseph 
 
 Chapin, Daniel E. 
 
 Ide, Abijah M., Jr. 
 
 Beach, Erasmus D. 
 
 Cushman, Henry W. 
 
 Churchill, J. McKean 
 
 Jacobs, John 
 
 Beal, John 
 
 Cushman, Thomas 
 
 Clark, Henry 
 
 Kendall, Isaac 
 
 Beebe, James M. 
 
 Dana, Richard H., Jr. 
 
 Clark, Ransom 
 
 Keyes, Edward L. 
 
 Bell, Luther V. 
 
 Davis, Ebenezer 
 
 Clark, Salah 
 
 Kimball, Joseph 
 
 Bishop, Henry W. 
 
 Davis, John 
 
 Clarke, Stillman 
 
 Kingman, Joseph 
 
 Blagden, George W. 
 
 Davis, Robert T. 
 
 Crane, George B. 
 
 Knight, Jefferson 
 
 Bliss, Gad O. 
 
 Day, Gilman 
 
 Cressy, Oliver S. 
 
 Knowlton, J. S. C. 
 
 Bliss, Willam C. 
 
 Dehon, William 
 
 Cutler, Simeon N. 
 
 Knowlton, William II . 
 
 Boutwell, Geo. S. 
 
 Deming, Elijah S. 
 
 Davis, Isaac 
 
 Knox, Albert 
 
 Bradford, William J. A 
 
 DeWitt, Alexander 
 
 Dean, Silas 
 
 Ladd, Gardner P. 
 
 Brewster, Osmyn 
 
 Doane, James C. 
 
 Denton, Augustus 
 
 Lawrence, Luther 
 
 Brown, Adolphus F. 
 
 Duncan, Samuel 
 
 Dunham, Bradish 
 
 Leland, Alden 
 
 Brown, Alpheus R. 
 
 Durgin, John M. 
 
 Eames, Philip 
 
 Lincoln, Abishai 
 
 Brown, Hammond 
 
 Easland, Peter 
 
 Earle, John M. 
 
 Loomis, E. Justin 
 
 Brown, Hiram C. 
 
 Easton, James, 2d 
 
 Eaton, Calvin D. 
 
 Merritt, Simeon 
 
 Buck, Asahel 
 
 Ely, Homer 
 
 Edwards, Elisha 
 
 Monroe, James L. 
 
 Bullock, Rufus 
 
 Eustis, William T. 
 
 Edwards, Samuel 
 
 Moore, James M. 
 
 Bullen, Amos H. 
 
 Farwell, A. G. 
 
 Ely, Joseph M. 
 
 Morton, Elbridge G. 
 
 Bumpus, Cephas C. 
 
 Fitch, Ezekiel W. 
 
 Fay, Sullivan 
 
 Morton, Marcus, Jr. 
 
 Burlingame, Anson 
 
 Fowle, Samuel 
 
 Fellows, James K. 
 
 Nash, Hiram 
 
 Butler, Benjamin F. 
 
 French, Charles H. 
 
 Fisk, Lyman 
 
 Nayson, Jonathan 
 
 Caruthers, William 
 
 Gardner, Johnson 
 
 Foster, Aaron 
 
 Nichols, William 
 
 Chandler, Amariah 
 
 Gates, Elbridge 
 
 Foster, Abram 
 
 Nute, Andrew T. 
 
 Chapin, Chester W. 
 
 Gilbert, Washington 
 
 Freeman, James M. 
 
 Osgood, Charles 
 
 Chapin, Henry 
 
 Gooch, Daniel W. 
 
 French, Charles A. 
 
 Packer, E. Wing 
 
 Childs, Josiah 
 
 Goulding, Jason 
 
 French, Rodney 
 
 Paine, Benjamin 
 
 Choate, Rufus 
 
 Greene, William B. 
 
 French, Samuel 
 
 Parris, Jonathan 
 
 Clarke, Alpheus B. 
 
 Greenleaf, Simon 
 
69th day.] 
 
 CONSTITUTIONAL CONVENTIONS. 
 
 523 
 
 Thursday,] 
 
 HOLDER HOOPER ASPINWALL LORD. 
 
 [July 28th. 
 
 Hadley, Samuel P. 
 Hall, Charles B. 
 Hammond, A. B. 
 Haskins, William 
 Hayward, George 
 Hazewell, Charles C. 
 Henry, Samuel 
 Heywood, Levi 
 Hobart, Aaron 
 Holder, Nathaniel 
 Houghton, Samuel 
 Hunt, Charles E. 
 Hyde, Benjamin D. 
 Jeiiks, Samuel H. 
 Johnson, John 
 Kellogg, Martin R. 
 Knight, Hiram 
 Knight, Joseph 
 Knowlton, Charles L. 
 Langdon, Wilber C. 
 Little, Otis 
 Loud, Samuel P. 
 Marble, William P. 
 Marcy, Labaii 
 Marvin, Abijah P. 
 Marvin, Theophilus R. 
 Mason, Charles 
 Meader, Reuben 
 Mixter, Samuel 
 Morss, Joseph B. 
 Morton, William S. 
 Newman, Charles 
 Norton, Alfred 
 Ober, Joseph E. 
 Orcutt, Nathan 
 Paige, James W. 
 Paine, Henry 
 Parker, Adolphus G. 
 Parker, Joel 
 Parsons, Samuel C. 
 Parsons, Thomas A. 
 Payson, Thomas E. 
 Peabody, Nathaniel 
 Perkins, Jonathan C. 
 Phimiey, Silvanus B. 
 
 Powers, Peter 
 Preston, Jonathan 
 Prince, F. O. 
 Putnam, George 
 Putnam, John A. 
 Rockwell, Julius 
 Sampson, George R. 
 Sanderson, Chester 
 Schouler, William 
 Sheldon, Luther 
 Sherman, Charles 
 Sikes, Chester 
 Simmons, Perez 
 Sleeper, John S. 
 Souther, John 
 Sprague, Melzar 
 Stetson, Caleb 
 Stevens, Granville 
 Stevens, Joseph L., Jr. 
 Stevenson, J. Thomas 
 Storrow, Charles S. 
 Strong, Alfred L. 
 Stutson, William 
 Sumner, Increase 
 Sumner, Charles 
 Swain, Alanson 
 Taber, Isaac C. 
 Taylor, Ralph 
 Thayer, Joseph 
 Tower, Ephraim 
 Tyler, John S. 
 Tyler, William 
 Underwood, Orison 
 Walcott, Samuel B. 
 Walker, Amasa 
 Warner, Marshal 
 Waters, Asa H. 
 Weston, Gershom B. 
 Wilbur, Daniel 
 Wilbur, Joseph 
 Wilder, Joel 
 Wilkinson, Ezra 
 Williams, J. B. 
 Whin, Jonathan B. 
 Wood, Nathaniel 
 
 Absent and not voting, 168. 
 
 So the amendment was rejected. 
 The hour of two o clock having arrived, the 
 Convention then adjourned. 
 
 AFTERNOON SESSION. 
 
 The Convention reassembled at three o clock. 
 
 On motion of Mr. HOLDER, of Lynn, the con 
 sideration of the Orders of the Day, being the 
 resolves in relation to Conventions to Revise the 
 Constitution, was resumed. 
 
 Mr. HOOPER, of Fall River. We have di 
 rected the census to be taken in 1855, and every 
 ten years thereafter ; consequently, it will be taken 
 in 1865 and in 1875 ; so that, if this provision- is 
 adopted, the Convention will be held the year 
 before the census will be taken. For this reason 
 
 I move that the figures " 1873 " be stricken out, 
 and " 1875 " inserted, in the following part of the 
 first resolve : 
 
 A Convention to revise or amend this Consti 
 tution, may be called and held in the following 
 manner : At the general election in the year 1873, 
 and in each twentieth year thereafter, the quali 
 fied voters in State elections shall give in their 
 votes upon the question, " Shall there be a Con- 
 vention to revise the Constitution ? " 
 
 Mr. ASPINWALL, from Brookline. I sug 
 gest to the gentleman, that the census will be 
 taken in May, 1875, and it will be impossible to 
 apportion the representation before the time pro 
 vided for holding the Convention, and therefore, 
 the delegates to the Convention of 1875 cannot 
 be elected on the basis of the representation of 
 1875. It seems to me that the year should be 
 changed, if changed at all, to 1876, if the inten 
 tion is that the Convention shall be regulated by 
 the basis of representation of 1875. 
 
 Mr. HOOPER. I accept the suggestion, and 
 modify my motion accordingly. 
 
 The question was then taken upon the motion 
 of Mr. Hooper, and there were, upon a division 
 ayes, 54 ; noes, 80. 
 
 So the amendment was rejected. 
 
 Mr. LORD, of Salem. I would inquire if 
 there is any amendment pending r 
 
 The PRESIDENT. There is not. 
 
 Mr. LORD. I move, then, to insert after the 
 word " affirmative," in the first resolve, in the 
 thirteenth line, the words, " and if the number of 
 affirmative votes shall be at least in number two- 
 fifths of the whole number of votes cast for gov 
 ernor at such election," so that that portion of 
 the resolve shall read : 
 
 Which votes shall be received, counted, record 
 ed and declared, in the same manner as in the 
 election of Governor ; and a copy of the record 
 thereof, shall, within one month, be returned to 
 the office of the Secretary of State, who shall, 
 thereupon, examine the same, and shall publish, 
 in the newspapers in which the laws are then 
 published, the number of yeas and nays given 
 upon said question, in each town and city, and if 
 a majority of said votes shall be in the affirma 
 tive, and if the number of affirmative votes shall 
 be at least in number two-fifths of the whole 
 number of votes cast for Governor at such elec 
 tion, it shall be deemed and taken to be the will 
 of the people that a Convention should meet ac 
 cordingly. 
 
 I do not propose to make any extended remarks 
 at this stage of the proceeding. I proposed an 
 amendment yesterday afternoon, which received 
 no attention whatever. 
 
524 
 
 CONSTITUTIONAL CONVENTIONS. 
 
 [69th day. 
 
 Thursday,] 
 
 LOED ALVORD WILSON GILES SCHOULER. 
 
 [July 28th. 
 
 The PRESIDENT. The Chair would remind 
 the gentleman, that the Convention have ordered 
 that no debate should be had after a certain hour, 
 which hour is already passed. 
 
 Mr. LORD. That being so, I move the yeas 
 and nays upon the amendment. 
 
 The House was divided upon ordering the yeas 
 and nays, and there were, upon a division ayes, 
 18 ; noes, 153. 
 
 So the yeas and nays were refused. 
 
 The question then recurring upon the amend 
 ment offered by Mr. Lord, it was put, and there 
 were, upon a division ayes, 30 ; noes, 136. 
 
 So the amendment was rejected. 
 
 Mr. ALVORD, for Montague. I move to 
 amend the resolves by striking out the last one, 
 which is as follows : 
 
 3. Resolved, The foregoing provisions shall in 
 nowise restrain or impair the reserved right of the 
 people, in their sovereign capacity, and by such 
 mode of proceeding as shall fully and fairly col 
 lect and ascertain the will of the majority, at all 
 times, to reform, alter, or totally change their 
 Constitution and Frame of Government. 
 
 Mr. SIMMONS called for the yeas and nays 
 upon the motion, but they were not ordered, 
 twenty members only voting in favor thereof. 
 
 The question was then taken upon the amend 
 ment, and there were, upon a division ayes, 25 ; 
 noes, 143. 
 
 So the amendment was rejected. 
 
 Mr. WILSON, of Natick. I now move to 
 strike out the words " and by such mode of pro 
 ceeding as shall fully and fairly collect and ascer 
 tain the will of the majority," in the following 
 third resolve : 
 
 3. Resolved, The foregoing provisions shall in 
 nowise restrain or impair the reserved right of the 
 people, in their sovereign capacity, and by such 
 mode of proceeding as shall fully and fairly collect 
 and ascertain the will of the majority, at all times, 
 to reform, alter, or totally change their Constitu 
 tion and Frame of Government. 
 
 The PRESIDENT. The amendment is not 
 in order, because the Convention have decided 
 that the resolve shall stand as it is. 
 
 Mr. GILES. Is it in order to move to strike 
 out and insert ? 
 
 The PRESIDENT. It is. 
 
 Mr. GILES. I then move to strike out the 
 same words moved to be struck out by the gen 
 tleman from Natick, (Mr. Wilson,) and to insert 
 in lieu thereof the words " according to their will 
 legally expressed." 
 
 The question was taken, and the amendment 
 was rejected. 
 
 Mr. LORD. I move to amend the first resolve 
 at the same place where I moved to amend it be 
 fore, by inserting the words " and if the number 
 of affirmative votes shall be at least, in number, 
 one- third of the whole number of votes cast for 
 governor, at such election." 
 
 The PRESIDENT. The Chair is of opinion 
 that the amendment is substantially the same as 
 the one before offered by the gentleman, but the 
 Chair will put it to the Convention. 
 
 Mr. LORD. I demand the yeas and nays 
 upon it. 
 
 The yeas and nays were not ordered. 
 
 The question was then taken, and the amend 
 ment was not agreed to. 
 
 The question then recurring upon the final 
 passage of the resolves, 
 
 Mr. GILES, of Boston, asked for a division of 
 the resolves, so that the question should be taken 
 on the last resolve by itself. 
 
 The question was then taken upon the final 
 passage of the first and second resolves, and it was 
 decided in the affirmative. 
 
 The question was then taken upon the third 
 resolve, and there were upon a division ayes, 
 142 ; noes, 64. 
 
 So the resolves were passed. 
 
 Mr. SCHOULER. I now move to reconsider 
 the vote by which the last resolve was passed, and 
 I do it not for the purpose of consuming the time 
 of the Convention, for I am as anxious as any 
 one to finish our labors. But I do not believe 
 that this Convention would pass the third resolve, 
 if they wholly understood it. Nearly the whole 
 debate has been upon the mode of choosing dele 
 gates, and this third resolve has not been considered 
 at all. I think if gentlemen will look at it, they 
 will see that it is nothing more or less than legal 
 izing anarchy. 
 
 Mr. STETSON, of Braintree. I rise to a ques 
 tion of order. I desire that the motion to recon 
 sider be placed upon the Orders of the Day for 
 to-morrow, under the rule. 
 
 Mr. SCHOULER. Then I move to suspend 
 the rule, in order that the motion may be taken 
 up and considered at this time. 
 
 The question was taken, and the motion was 
 agreed to. 
 
 Mr. SCHOOLER. Now, Mr. President, I ask 
 the attention of the Convention to this third re 
 solve. I should like to have some gentleman 
 who advocates it, explain what it means. If it 
 means anything, it means nothing but anarchy. 
 Without any form of law, any number of men in 
 this Commonwealth may call a Convention to 
 amend the Constitution. What does it say ? It 
 is this : 
 
69th day.] 
 
 CONSTITUTIONAL CONVENTIONS. 
 
 525 
 
 Thursday,] 
 
 SCHOTJLER LORD WHITNEY. 
 
 [July 28th. 
 
 The foregoing provisions shall in nowise re 
 strain or impair the reserved right of the people, 
 in their sovereign capacity, and by such mode of 
 proceeding as shall fully and fairly collect and 
 ascertain the will of the majority, at all times, to 
 reform, alter, or totally change their Constitution 
 and Frame of Government. 
 
 What does that mean ? Are the people in their 
 sovereign capacity to make any kind of change 
 outside of the legislature, and without its being 
 done by legislative rules ? Are we to have a form 
 of law in calling a Convention, or shall an unle- 
 galized mass of people call a Convention ? If the 
 gentlemen who advocate the resolve can explain 
 what it means, will they tell us what that mean 
 ing is. I know a majority of this Convention 
 will go for no such thing, if they understand it. 
 If there is to be a Convention, it should be under 
 legal forms, there must be a vote, and that vote 
 should be legally given, and legally returned, and 
 these can only be had under law. Now, I want 
 to know if this resolve does not mean something 
 else ? Perhaps gentlemen who are anxious about 
 this matter, can tell what it means. 
 
 Mr. LORD, of Salem. Before the gentleman 
 for Wilbraham answers the questions, I desire to 
 know if the gentleman for Wilbraham should 
 draw up a subscription paper to this effect : " We 
 hereby agree that the Bill of Rights be stricken 
 from the Constitution," and should get the signa 
 tures of a majority of the people of the Common 
 wealth, whether that would not alter the Consti 
 tution, for the Bill of Rights is a part of the 
 Constitution. The resolve says : 
 
 The foregoing provisions shall in nowise re 
 strain or impair the reserved right of the people, 
 in their sovereign capacity, and by such mode of 
 proceeding as shall fully and fairly collect and 
 ascertain the will of the majority, at all times, to 
 reform, alter, or totally change their Constitution 
 and Frame of Government. 
 
 If it means anything, it means that if I should 
 get the subscription of a majority of the people of 
 the Commonwealth to such a paper, that would 
 alter the Constitution. I desire that gentlemen 
 who voted this thing through with a rush, with 
 out giving us the yeas and nays, should hear my 
 protest against altering the Constitution by a sub 
 scription paper. If that resolve does not mean 
 that, it is meaningless. Anything which shall 
 get the full opinion of the people, will alter the 
 Constitution. Now, Sir, I am not going to ask 
 the yeas and nays upon this proposition, be 
 cause the Convention have made up their minds 
 not to do anything of that kind, if I may judge 
 from the vote just passed. 
 
 But I desire that it shall not pass without my 
 
 protest. If the Convention would only allow me 
 to record my vote upon a question so important 
 as this, I should not trouble them with these re 
 marks ; but, upon a question which legalizes 
 anarchy and confusion, if I cannot be permitted 
 to record my vote, I may be permitted to protest 
 against it. 
 
 Mr. WHITNEY, of Conway. I hope the mo 
 tion to reconsider the vote by which the Conven 
 tion adopted the resolution, will prevail, but not 
 for the reason given by the gentleman from Salem, 
 (Mr. Lord). Sir, if this resolution has any effect 
 at all, its effect will be as the gentleman from 
 Boston, (Mr. Schouler,) has said, to introduce 
 anarchy and misunderstanding of what is the 
 proper mode of proceeding when the people de 
 sire to revise the Constitution. What does the 
 resolution provide for r 
 
 Resolved) The foregoing provisions shall in no 
 wise restrain or impair the reserved right of the 
 people, in their sovereign capacity. 
 
 Now, I take it, that if the people have "reserved 
 rights," they cannot be interfered with if the reso 
 lution should be rejected, for those rights are not 
 only reserved, but it is declared elsewhere in the 
 Constitution, that rights not granted are " re 
 served rights." I think they are more fully pro 
 vided for ; and, therefore, this resolve so far is 
 worthless, and will have no effect at all. But 
 the resolve goes on : 
 
 And by such mode of proceeding as shall fully 
 and fairly collect and ascertain the will of the ma 
 jority, at all times, to reform, alter, or totally 
 change their Constitution and Prame of Govern 
 ment. 
 
 Now, Sir, we have provided in a preceding re 
 solve, for calling a Convention to revise the Con 
 stitution. We have provided that the people shall 
 vote upon the question for calling a Convention 
 at certain specified times, and at any other time 
 when the legislature shall see fit to submit the 
 question to the people. So that we have provided 
 already, that every twenty years, and as much 
 oftener as the legislature think proper to submit 
 the question, a legitimate mode for the people to 
 " reform, alter, or totally change that Constitution 
 and Frame of Government," as they may choose, 
 shall be had. And now, I ask, what do you want 
 more ? Why indicate that these are not the 
 proper modes of accomplishing that result ? As 
 the gentleman from Salem said, by this resolution 
 the people may alter and reform the Constitution 
 by circulating a subscription paper, or in any 
 other way. Sir, it does seem to me that this re- 
 
526 
 
 CONSTITUTIONAL CONVENTIONS. 
 
 [69th day. 
 
 Thursday,] 
 
 HOOPER STEVENSON MILLER. 
 
 [July 28th. 
 
 solve is only calculated to lead to misunderstand 
 ing among the people as to the proper mode of 
 revising the Constitution. 
 
 I agree that the major will of the people have 
 the right " to alter, reform, or totaUy change their 
 Constitution and Frame of Government " at any 
 time. I go as far as the gentleman for "Wilbra- 
 ham in support of that doctrine ; but, I wish to 
 provide some definite and proper method by 
 which the will of the people shall be expressed 
 and ascertained, and that we have provided in the 
 preceding resolves. Now, I repeat that this reso 
 lution is either worthless, or else it means to 
 legalize undefined action. Why, Sir, what, I ask 
 again, is there in the foregoing resolutions, that is 
 calculated to " impair the reserved rights of the 
 people in their sovereign capacity ? " I can see 
 nothing that takes away these rights. I hope the 
 motion to reconsider will prevail, and that the 
 resolve will be stricken out. 
 
 Mr. HOOPER, of Fall River. I hope this 
 resolve will be retained, as it seems to me there 
 are sufficient reasons why it should be. The first 
 two resolves are framed to provide for calling a 
 Convention upon the basis of the House of Rep 
 resentatives, as agreed to in this Convention. 
 Now, Sir, no man can say, at this day, what will 
 be the practical operation of that basis in future. 
 It may be, that under the system we have adopt 
 ed, within twenty years from this time, a majority 
 of the House of Representatives can be elected 
 by one- fifth, or even one-eighth of the people. I 
 believe it may so work, and if it does, and a Con 
 vention is called on the basis of the House, as 
 these resolves provide, one- fifth or one- eighth of 
 the people will elect a majority of that Conven 
 tion. Now, Sir, did you ever know any man, or 
 set of men, voluntarily to give up political power ? 
 Suppose a Convention should be called upon such 
 a basis do you suppose the majority of that Con 
 vention, representing one-fifth or less of the peo 
 ple of the Commonwealth, would adopt measures 
 that would allow the whole people to be equally 
 represented ? No, Sir ; it would be in Massachu 
 setts, as it was in Rhode Island, several years ago, 
 when the agitation commenced there. One-fifth 
 of the people there elected the legislature, and 
 whenever a Constitutional Convention was called, 
 it was always upon the same basis as the repre 
 sentative body that called it, to reform the Char 
 ter and establish the Constitution. But, Sir, the 
 minority held the power, and they never gave it 
 up till compelled, which they were in part, by 
 the Dorr Rebellion. 
 
 Now, Sir, we may be under the necessity, at 
 some future time, of calling a Convention outside 
 of the government ; and there is something here 
 
 upon which we could found such a proceeding, 
 should it ever be found necessary for the purpose 
 of equalizing representation. I, for one, hold the 
 doctrine declared in that resolution as a sound 
 one. It is the doctrine by which, in 1842, we 
 carried the State of Massachusetts ; and it is one 
 I am unwilling to give up at this time. I hope, 
 therefore, that this vote will not be reconsidered, 
 but that this resolve will be permitted to stand as 
 it was passed, and that the rights of the people 
 will be declared to be beyond the power of the 
 legislature, or any other power, to overthrow 
 them. 
 
 Mr. STEVENSON, of Boston. I have no in 
 tention of occupying the time of the Convention 
 for a single moment. I rise simply for the pur 
 pose of making an inquiry. This resolve, which 
 it is proposed, and which the Convention have 
 once voted to put into the Constitution, makes a 
 requirement concerning alterations to the Consti 
 tution. Now, I desire to ask the gentleman who 
 proposed the resolve, who are to be the judges of 
 whether that requirement has been complied 
 with; who is to judge whether the "will of the 
 people" has been fairly collected ? It seems to 
 me we have made a requirement, and put it into 
 the Constitution, without any conceivable tribu 
 nal to determine whether that requirement has 
 been properly complied with. I hope, therefore, 
 for that simple reason, if for no other, that this 
 vote will be reconsidered, and that this resolve 
 will be stricken out. 
 
 Mr. MILLER, of Wareham. I suppose there is 
 no member of this Convention who is more willing 
 that those who come after us shall have full power 
 to alter and revise this Constitution, whenever it 
 shall be the wish of a majority of the people so to 
 do, than I am. I also believe, that there is not a 
 man in this Commonwealth no sober, wise, and 
 discerning man who would desire, for a mo 
 ment, to put any provision into the Constitution 
 which may hereafter be so construed as to have 
 a tendency, in any manner, to produce colli 
 sion, war, and bloodshed. I believe there is not 
 a man in the Convention who would be willing 
 to put anything in the Constitution which could 
 possibly lead to such a result ; but that it is the 
 wish of all, that hereafter, we may have peace 
 and quietness in all our borders. 
 
 Now, I ask, if, aside from this resolution, we 
 have made all the provision that any reasonable 
 man could require, for the alteration of the Con 
 stitution at any future period of time ? In the 
 first place, we have provided, that once in twenty 
 years, the people of the Commonwealth shall vote 
 upon the question, whether they will have a Con 
 vention to revise the Constitution, or not. That 
 
69th day.] 
 
 CONSTITUTIONAL CONVENTIONS. 
 
 527 
 
 Thursday,] 
 
 MILLER GILES WILSON. 
 
 [July 28th. 
 
 is one mode. Again, you require, by a second 
 section, that whenever one- third of the voters in 
 the various cities and towns of the Commonwealth 
 declare their wish to call a Convention, it shall be 
 the duty of the legislature to call a Convention. 
 And again, in the same section, it is provided that 
 the legislature may, at any time they may think 
 proper, submit the question to the people. Now, 
 it seems to me, that this is making all the pro 
 vision that it is desirable to make, for this pur 
 pose. All any man wants is a guarantee to those 
 who come after us, that they shall have control 
 of the matter, and that is provided in the previous 
 resolves. I submit, that this third resolve can 
 produce no good result that will not be produced 
 without it, and that it may, if adopted, lead to the 
 most disastroiis consequences. I shall, therefore, 
 vote against it, when the question comes up ; and 
 I hope every member of the Convention will do 
 the same. Let me call the attention of the Con 
 vention to the phraseology : 
 
 3. Resolved, The foregoing provisions shall in 
 nowise restrain or impair the reserved right of 
 the people, in their sovereign capacity, and by 
 such mode of proceeding as shall fully and fairly 
 collect and ascertain the will of the majority, at 
 all times, to reform, alter, or totally change their 
 Constitution and Frame of Government. 
 
 Now, suppose some distinguished man in the 
 city of Boston should write to the selectmen of 
 every town in the Commonwealth, to take the 
 vote of the people upon the question of calling a 
 Convention, and suppose one-fourth of the people 
 of the State should, in that manner, express their 
 opinions in favor of calling a Convention if 
 there was a majority of all the votes given, it 
 might be considered as the will of the people, 
 fairly collected, and they might go on and form a 
 Constitution ; and we might thus have two gov 
 ernments going on at the same time. It might 
 lead to civil war and bloodshed. I hope we shall 
 not have any such provision put into the Consti 
 tution. 
 
 Mr. GILES, of Boston. I wish to state one or 
 two reasons why I want this vote reconsidered 
 for the purpose of amending the resolution. My 
 friend for Wilbraham, (Mr. Hallett,) knows that 
 I go with him in the object he seeks to accom 
 plish ; but my objection to this third resolution 
 is, that it is a limitation upon the Bill of Rights 
 as it now stands. So far as it can have any legal 
 or constitutional effect, it is to restrict the rights 
 of the people as they are now secured to them. 
 It is impossible to declare the absolute and inalien 
 able right of the people to reform, alter, and 
 amend their Constitution in stronger language 
 
 than is used in the Bill of Rights, as it now stands, 
 to wit : 
 
 "Therefore, the people alone have an incon- 
 testible, unalienable, and indefeasible right to 
 institute government ; and to reform, alter, or 
 totally change the same, when their protection, 
 safety, prosperity and happiness require it." 
 
 Now, when it comes to that pass, and the 
 people undertake to exercise that right, I do not 
 wish to impose upon them any restriction. I will 
 allow them to exercise it in any manner they may 
 see fit; and posterity will judge for themselves 
 what that manner shall be when the emergency 
 shall arise. When it shall become necessary to 
 assert that right outside of the Constitution, the 
 people will exercise it according to their sovereign 
 will ; and I do not wish to restrain them by say 
 ing that they must do it by such mode of pro 
 ceeding as shall fairly collect the will of the 
 majority. I will leave that right to their sover 
 eign pleasure. 
 
 Another objection is this : By this resolution 
 you will place the people of the Commonwealth, 
 if they should ever have occasion to exercise this 
 right, in a position of hostility against their own 
 government. You will have a Constitution felo 
 de se, and may set the people to cutting their own 
 throats by law and Constitution. 
 
 These are my objections. 1 do not wish to take 
 up the time of the Convention by elaborating 
 them. 
 
 Mr. WILSON, of Natick. Mr. President : I 
 hope the motion made by the delegate from Bos 
 ton, (Mr. Schouler,) will prevail that this reso 
 lution will be reconsidered, and either amended or 
 stricken out altogether. By the provisions of the 
 7th article of the Bill of Rights, " the people alone 
 have an incontestible, unalienable, and indefeasi 
 ble right to institute government, and to reform, 
 alter, or totally change the same, when their pro 
 tection, safety, prosperity and happiness require 
 it." 
 
 That is an unlimited and unqualified admission 
 of the right of the people, to alter, or amend, or 
 abolish altogether their government whenever 
 they shall see fit. There is no qualification or 
 limitation whatever of this right, and they are the 
 sole judges of the whole question of the time 
 and mode. Now, by the provisions of this reso 
 lution, we repeat this doctrine, but we repeat it 
 with limitations and restrictions. Sir, I am op 
 posed to putting qualifications or restrictions upon 
 the sovereign rights of the people of this Common 
 wealth or of this country, to change, or modify, 
 or alter, or abolish their government whenever 
 they may see fit to do so whenever they believe 
 their happiness will be promoted by so doing. 
 
528 
 
 CONSTITUTIONAL CONVENTIONS. 
 
 [69th day. 
 
 Thursday,] 
 
 WILSON HALLETT. 
 
 [July 28th. 
 
 I therefore hope this third resolution will be 
 reconsidered, and either stricken out altogether, 
 or amended by striking out all after the word 
 " capacity," down to the words " at all times," so 
 that the resolution would read : 
 
 Resolved, That the foregoing provisions shall in 
 nowise restrain or impair the reserved right of 
 the people, in their sovereign capacity, at all times 
 to reform, alter, or totally change their Constitu 
 tion arid Frame of Government. 
 
 This is the achieved American doctrine. 
 
 It will then be but a repetition of the declara 
 tions laid down in the 7th article of the Bill of 
 Rights. But I am opposed to putting anything 
 into this Constitution that shall limit or restrict 
 the people in the exercise of their sovereign rights 
 and powers. I hope that amendment will be 
 made, or that the section will be stricken out alto 
 gether, and that this Convention will not put into 
 the Constitution any provision that shall limit 
 the rights of the people, declared in the 7th article 
 of the Bill of Rights, which was placed there by 
 the men of 1780, who laid the foundations of our 
 Constitution upon the eternal doctrine of the 
 unlimited sovereignty of the people and the equal 
 rights of man. 
 
 Mr. HALLETT, for Wilbraham. I certainly 
 have no desire to limit the power of the people. 
 I never heard that accusation brought against me 
 before, in my life. The trouble generally is with 
 those who differ from me on the principles of 
 government, that I want too little governing 
 power, and too mucli liberty for the people. Sir, 
 I am not alarmed about the probable fate of this 
 resolution. The great principle of success in life, 
 is the calm perseverance of moral courage. When 
 you have fixed upon a sound principle, be not 
 pertinacious, nor dogmatical, but patiently perse 
 vere, and you must carry it through. If you can 
 not do it to-day, wait until you can carry it ; to 
 morrow, or next year, or, if need be, the next 
 generation. Now here is a sound principle. If 
 we cannot secure the adoption of this principle 
 now, it will grow, and there will be those who 
 will try it again, twenty years hence, in another 
 Convention. That is my position in relation to 
 all the great principles of government which I 
 have endeavored to maintain here. If gentlemen 
 vote them down, I am not voted down ; it is the 
 principle which the Convention has voted down. 
 I am nothing to this principle, nor do I consider 
 myself in any personal manner identified with its 
 success. But, Sir, if this principle does not pre 
 vail now, I am satisfied it will prevail at some 
 future time. What is it ? The gentleman from 
 Natick misunderstands it. He says, the Bill of 
 
 Rights declares that the people have at all times 
 the right to alter, amend, or totally abolish their 
 frame of government. That is all very well said, 
 but when you come to the point, how is it to be 
 done? The answer, and the only answer is, 
 either by the bayonet, or by the will of the major 
 ity. Now, how will the gentleman get at the will 
 of the people in spite of the bayonets r I hold to 
 the right of revolution by the bayonet ; but I 
 hold to the right of peaceful revolution also, by 
 the ballot-box. And how are you to accomplish 
 a peaceful revolution ? Why, by fairly and fully 
 collecting the will of the majority of the people. 
 That every-body pretends to believe in, but when 
 you undertake to collect the will of the people, 
 where there is not an express law for it, then comes 
 the bayonet. Sir, I maintain that the people of 
 this Commonwealth, have the right peacefully to 
 assemble and express their wishes in relation to 
 any change they may desire in their government, 
 and that the will of the majority in making 
 organic laws, is the will of the people. But, if 
 the legislature, or the government, will not let the 
 people express their will peacefully, but declares 
 martial law, and pronounces the people s assem 
 blies riotous ; of what practical use is that decla 
 ration in the Bill of Rights ? 
 
 What is the gentleman going to do with the 
 people s right to make a Constitution ? We are 
 all for the people s rights on paper ; but when it 
 comes to the action of this sovereign people with 
 out the consent of their servants, the legislature, 
 what will the people s rights do for us when they 
 are like a flock of sheep, with an army sent after 
 them from Washington to put down domestic 
 violence proclaimed by your governor ? I wish 
 to carry out in this new Constitution, the princi 
 ple of Mr. Buchanan, laid down in the Michigan 
 case, in 1836; and that is a sufficient answer to 
 the gentleman from Salem. This is what Mr. 
 Buchanan says, touching this very question of 
 the people having a right of revolution without 
 being obliged always to fight for it. 
 
 " Is it the position, that if in any one of the States 
 of this Union, the government be so organized as 
 utterly to destroy the right of equal representa 
 tion, there is no mode of redress but by an act of 
 the legislature authorizing a Convention, or by 
 open rebellion ? Must the people step at once 
 from oppression to open war ? Absolute sub 
 mission or absolute revolution ? Is there no mid 
 dle course ? This is found only in the principle 
 established by the whole history of American 
 government, that the people are sovereign, and 
 that a majority of them can alter or change their 
 fundamental laws at pleasure. This is neither 
 rebellion, nor revolution. It is an essential, re 
 cognized principle in all our forms of govern 
 ment." 
 
69th day.] 
 
 CONSTITUTIONAL CONVENTIONS. 
 
 529 
 
 Thursday,] 
 
 HALLETT SCHOULER. 
 
 [July 28th. 
 
 That is the doctrine of James Buchanan, a man 
 who knows something about the government of 
 this country. And this I hold is the true doctrine 
 of American liberties. I deny, emphatically, that 
 in changes of government, the people of the States, 
 in this Union, hold the " sacred right of revolu 
 tion," subject to be hanged for treason if they 
 fail ? This is the right of serfs and slaves. 
 American citizens claim a higher right, unaliena- 
 ble and practical as a great political right. Not a 
 mere physical right of revolution by force, which, 
 whenever resorted to must be at the risk of all the 
 penalties attached to an unsuccessful resistance to 
 established authority. 
 
 For, if the people of a. State are practically 
 denied a change by revolution, and can get no 
 change without the previous consent of the legis 
 lature, the legislature and not the people are sover 
 eign in government ; and in practice, whatever 
 may be our theory, we are not a free people. 
 
 Hence, if you would have a popular sover 
 eignty, that can act without a conflict of blood 
 with the government, you must take care to pro 
 vide for it in the organic law, so that the legisla 
 ture cannot make it treason, or the executive call 
 in the military power of the United States to pxit 
 it down as a case of domestic violence. 
 
 Now, what do we propose in this amendment ? 
 Merely to provide that the people may lawfully 
 do what the supreme court of the United States, 
 in the Rhode Island causes, were obliged to ad 
 mit, that if, in any Constitution or law of that 
 State it had been provided the people might do, 
 would have established a popular government in 
 Rhode Island. They decided that there must be 
 recognized as lawful in the people, some form of 
 proceedings by which they could fairly and fully 
 collect the will of the majority. And because 
 there was no such form recognized in Rhode 
 Island, the courts of that State pronounced the 
 choice of delegates, the holding of a Convention, 
 and all the meetings the primary and town 
 meetings lawless assemblies ; and the supreme 
 court of the United States followed the decision 
 of the State court. That is, the decision which 
 renders the Bill of Rights a mere rhetorical 
 flourish. I want a shield in the Constitution to 
 cover the rights of the people against any such 
 legal construction to render those rights inopera 
 tive. You say that, by the Bill of Rights, the 
 people have a right to meet and petition, or vote a 
 Convention ; but what if the courts pronounce 
 that a seditious meeting, because there is no law 
 for it ! you have no appeal but to arms. But if 
 you declare in the Constitution that the meetings 
 of the people shall be lawful, and may be held in 
 such a mode as will fully ascertain the will of the 
 
 36 3 
 
 majority, then if the people meet in town meet 
 ings, and endeavor peaceably to ascertain the will 
 of the majority, the government cannot send an 
 army to shoot them down, or read the riot act to 
 disperse them ; and the courts of the country 
 must put a construction upon such a constitu 
 tional provision that will enable the people to 
 ascertain what is their will, and whether a major 
 ity are in favor of holding a Convention, or 
 changing their form of government. That would, 
 doubtless, be an extreme case, but that is the 
 right of the majority, or the majority has no right 
 to make or change government. 
 
 Now these three resolutions render the whole 
 system perfect ; and if gentlemen will only ad 
 here to them as they have adhered to them before, 
 in their votes, I am sure we shall go out from 
 this Convention with a more honorable and ef 
 fective declaration as to the rights of the people 
 in government, than was ever before laid down. 
 First, we have proposed a mode for revising the 
 Constitution periodically, every twenty years, 
 without asking the legislature beforehand to do 
 anything. We have a second resolution, which 
 authorizes one-third of the voters of the Com 
 monwealth to make a proposition requiring the 
 legislature to put the question to the people on 
 calling a Convention ; or the legislature may put 
 out a proposition, at any time they see fit, for 
 calling a Convention. And lastly, comes behind 
 that, the great reserved sovereignty of the people ; 
 and we simply say, in that declaration, that when 
 the people assemble together for the purpose of 
 collecting and executing their will, they shall not 
 be pronounced rebels, but shall be recognized by 
 the constituted authorities. Adhere to these pro 
 visions, and you will ingraft a great American 
 principle upon the Constitution, and other popu 
 lar governments will hereafter follow your exam 
 ple, until revolution will mean something more 
 than bayonets and bloodshed. 
 
 Mr. SCHOULER, of Boston. If the Conven 
 tion understand the definition given to these 
 resolutions by the gentleman for Wilbraham, and 
 the gentleman from Fall River, I think they will 
 agree with the gentleman from Natick, that this 
 motion of mine ought to prevail. There will be 
 nothing but anarchy and revolution in the Com 
 monwealth, if the resolutions are adopted, ac 
 cording to the argument of both the gentlemen, 
 (Messrs. Hallett and Hooper). These gentlemen 
 want something outside of the Constitution ; and 
 when you go outside of the Constitution, you go 
 to anarchy. If the advocates of the higher law 
 like that, I am not one who does. I know no 
 right, not given by the statute and common law 
 of the country ; and if they are going to put 
 
530 
 
 CONSTITUTIONAL CONVENTIONS. 
 
 [69th day. 
 
 Thursday,] 
 
 SCHOULER ALLEN. 
 
 [July 28th. 
 
 these resolutions into the Constitution, so as to 
 make anarchy whenever a portion of the people 
 wish to call a Convention, I want the sober 
 sense of this Convention to understand it, and 
 let them see whether they will vote for it or not. 
 I do not want to legalize a Dorr Rebellion, in the 
 Constitution of Massachusetts ; and that seems to 
 be the object of the gentleman for Wilbraham, in 
 a number of motions which he has made. I do 
 not know what he said at that time, but I do say 
 that, so long as we live in a State where we have 
 a Constitution and laws, I am ready to stand by 
 them. I know no way in which we can call a 
 Convention ; I know no way in which we can 
 have a liberty worth preserving that is not a 
 liberty founded upon constitutional law and other 
 laws. I do not deny the right of revolution ; but 
 there is no use in putting that into the Constitu 
 tion of the Commonwealth, any more than there 
 is to put in the right to knock another man down, 
 when he comes up to insult you. That is a rev 
 olution on a small scale ; it is taking the law into 
 our own hands. But we are here forming a Con 
 stitution, making a bundle of laws, and laying 
 down principles, and I want nothing revolution 
 ary in it. The gentleman asks if a number of 
 men meet together for the purpose of calling a 
 Convention without any law, whether we shall 
 have to bring out our bayonets to put them 
 down ? I believe that if we put nothing of that 
 sort into the Constitution, there are no men in the 
 State so foolish as to attempt it ; and yet the gen 
 tleman who thinks that such a principle as that is 
 such a wondrous stretch of power, if a poor fugi 
 tive slave should come to Boston, would think 
 we had a revolution, and we might hear of troops 
 coming from Washington to Boston, to put it 
 down by martial law, as we did hear about it a 
 few years ago. 
 
 I say these resolutions are not required in the 
 Constitution, that they will produce nothing but 
 anarchy, if carried out ; and that seventh resolu 
 tion, of which my friend from Boston speaks, I 
 do not understand as he does. I say that every 
 article in the Bill of Rights, and in the Constitu 
 tion, is intended to be carried out legally. The 
 framers of the Constitution of 1780 never meant 
 that there should be any such assemblies, not 
 recognized by law, to overturn the State. The 
 people have the power, I admit ; but when they 
 express their voice and will, it is to be done 
 through legal means and legal forms of changing 
 the Constitution, and, unless it is done so, it is 
 only a mob which acts, and I do not believe the 
 framers of our government ever meant that mob 
 law should rule in Massachusetts. 
 
 I acknowledge the right of revolution, but that 
 
 is not what is attempted ; the attempt is to in 
 graft into the Constitution a provision by which 
 every act of the government can be overturned 
 by an unauthorized body, acting without law. I 
 say the minority have rights which are secured 
 by the Constitution and law, and if it was not for 
 preserving the rights of minorities, there would be 
 no necessity for any Constitution or any law. 
 And we ought to guard, and we do guard, the 
 rights of minorities ; and, in making constitutional 
 law we should preserve ourselves from the re 
 proach of instituting any mode by which our 
 government can be changed or overturned by a 
 number of men collecting on Boston Common, or 
 on Sudbury Meadows, or anywhere else, and say 
 ing they are the people, and the Constitution 
 must be overturned. I know of no such right ; 
 and I say, that if this is put into the Constitution, 
 it will not be worth having, and it ought to be 
 kicked and spurned by the people of Massachu 
 setts, instead of being adopted by them. 
 
 Mr. ALLEN, of Worcester. If the Convention 
 is not too tired of this debate to listen farther, 
 I will make a remark or two on the subject. 
 The condition of Massachusetts and of Rhode 
 Island a few years since, are very unlike. The 
 people of Rhode Island, I understand, wanted to 
 frame a constitutional government. There was 
 110 provision, by any fundamental law, by which 
 a Convention could be called. The legislature 
 refused to present the question to the people. 
 They had no remedy, except to resort to irregular 
 modes, to express their opinion in favor of a Con 
 vention and a Constitution. Therefore they pro 
 ceeded in the way and manner which was left to 
 them, and acted and voted upon the subject. 
 Whether that was the wisest course or not I will 
 not now undertake to say, or to give any opinion 
 with regard to the proceedings of that day in 
 Rhode Island, except this : that they were under 
 restraints which, I think, were of an unreasonable 
 character ; that the government having delayed 
 too long, by far, to call a Convention, or submit 
 the question of calling one to the people, drove 
 the people to seek by other and irregular modes 
 a way of carrying out their intentions. 
 
 But that is not the condition of things, and has 
 not been our condition, in Massachusetts. We 
 declare, in the Bill of Rights, the principle that 
 the people have a right at all times to change 
 their government. We provide a way by which 
 amendments may be made by successive legisla 
 tures submitting amendments to the people. 
 Then we provide for a revision of the Constitu 
 tion, on the question whether the Constitution 
 shall be submitted to the people once in twenty 
 years. That must be done absolutely. Farther 
 
6 9 tli day.] 
 
 CONSTITUTIONAL CONVENTIONS. 
 
 531 
 
 Thursday,] 
 
 ALLEN IVINGMAN. 
 
 [July 28th. 
 
 than that, we provide that upon application of a 
 small portion of the people to the legislature, it 
 shall be the duty of the legislature to submit the 
 whole question to the people at any time, either 
 in one, five, ten, or twenty years. We have pro 
 vided, in this way, in the most ample manner, 
 without the adoption of these resolutions, for 
 amendments to be made to the Constitution 
 whenever the people shall desire it ; not in one 
 way or manner, but in several. 
 
 Having done that, it seems to me to be unne 
 cessary to go farther, and unwise to say that the 
 people, or any part of the people, may depart 
 from the modes prescribed in the Constitution, 
 and by any irregular action, altogether unneces 
 sary, determine that we shall have a new Consti 
 tution, or shall have a Convention for the purpose 
 of revising the existing one. Sir, the reasons 
 which might render such action proper in Rhode 
 Island, would render it altogether indiscreet and 
 unwise, and, I apprehend, wrong, in Massachu 
 setts. Suppose this Constitution could be adopt 
 ed, and the people of Massachusetts, or any por 
 tion of the people, in the western part of the State 
 for instance, should desire a revision of the Con 
 stitution ; what course would I recommend them 
 to take ? Would I recommend to them to hold 
 caucuses in some portion of the interior of the 
 State, and request, through that caucus, that the 
 selectmen, without the authority of law, would 
 convene the people of their several towns, and in 
 that way obtain the opinion of the people in re 
 spect to the proposed revision of the Constitution, 
 leaving it, of course, to the selectmen of the seve 
 ral towns to call or withhold the meeting at plea 
 sure ; so that in some portions meetings would be 
 held, in others not ; in some towns in one man 
 ner, and in others in an entirely different man 
 ner ? The result would be confusion inextricable. 
 The true sense of the people might not be known 
 in regard to the matter. But let them take either 
 of the means pointed out in the Constitution, let 
 them pass a law, such as the Constitution directs 
 for calling a Convention, and then the whole sub 
 ject will be fairly before the whole people of the 
 Commonwealth, and, through the forms of law, 
 and through the constituted officers of the people, 
 their sense is taken, not of one section only, but 
 every part of the State, with regard to a change 
 of the Constitution or a Convention for its revision. 
 It seems to me that the insertion of a general 
 provision, like that contained in the third section, 
 which may enable portions of the people to set 
 aside the regular and orderly mode of ascertaining 
 public sentiment, pointed out in the Constitution, 
 and to resort to some other mode not contained 
 in the Constitution, and undefined, would, so far 
 
 from promoting the rights of the people, tend to 
 bring those rights into great jeopardy ; for the 
 result would be, that it would be contended that 
 the people were desirous of an amended Consti 
 tution, founded upon the action of this portion of 
 the State and another portion of the State, and 
 still founded upon the irregular returns of irregu 
 lar meetings ; and the result might be, that great 
 injustice and evil might be clone ; that a false idea 
 might be presented on the issue, and a Convention 
 might be called, or rejected, through an entire 
 misapprehension of public sentiment. 
 
 Sir, if there is any act to be done by the people 
 of the Commonwealth, peculiarly solemn in its 
 character, it is that of a revision of their funda 
 mental law. Let it be done, then, by all means, 
 in a regular and orderly manner ; let there be no 
 let nor hindrance to the people, and yet let the 
 mode be through the forms of law, through the 
 agency of constituted and sworn officers of the 
 people, so that the true sense of the people may 
 be ascertained, and that the act which purports to 
 be theirs may be in conformity with their delibe 
 rate and solemnly expressed will, through regular 
 channels and constituted organs. 
 
 Sir, if we are obliged to resort to irregular 
 modes to obtain redress of grievances, or ascertain 
 the will of the people as to the necessity of a 
 change of the Constitution, then, I say, resort to 
 it, even to revolution ; but while no such neces 
 sity exists, and while the way is open, I would 
 no more say that the Constitution should be re 
 vised, except in certain modes pointed out by the 
 Constitution, than I would say that your select 
 men, or your representatives, might be elected 
 either according to the mode indicated by the 
 Constitution, or by any other manner which the 
 people may designate. 
 
 Sir, I hope the Constitution, being entirely 
 sufficient to protect the rights of the people, we 
 shall not jeopard those rights by attempting an 
 unnecessary act, by inserting in the Constitution 
 a provision which leads, it seems to me, to anar 
 chy and to the practice of fraud with regard to 
 the sentiments of the people, while it will in no 
 way promote their honest will. 
 
 Mr. KINGMAN moved the previous question, 
 which was seconded, and the main question was 
 ordered to be now put. 
 
 The question being then taken on the motion to 
 reconsider, on a division, there were ayes, 195 ; 
 noes, 33 so it was agreed to. 
 
 Mr. ALLEN, of Worcester, moved to amend 
 the resolves by striking out the last one. 
 
 The PRESIDENT stated that this motion had 
 already been put once and negatived. 
 
 Mr. ALLEN. If it is in order, I move to re- 
 
532 
 
 CONSTITUTIONAL CONVENTIONS. 
 
 [69th day. 
 
 Thursday,; 
 
 HOOPER SCHOULER. 
 
 [July 28th. 
 
 consider the vote by which the Convention 
 refused to strike out the words standing as the 
 last resolve. 
 
 The PRESIDENT. That motion is in order, 
 and the question is on the motion to reconsider. 
 
 Mr. HOOPER, of Fall River. I am in hopes 
 that this resolve will not be stricken out ; and I 
 wish to recall to the minds of gentlemen the doc 
 trine which has been put forth in Massachusetts, 
 and which, in 1842, received the sanction of the 
 people of Massachusetts. For the purpose of 
 refreshing the memories of members of this Con 
 vention, the names of many of whom I find 
 attached to this document which I hold in my 
 hand, I wish to read the doctrine which was then 
 put forth and made the issue of that election, and 
 which received the sanction of the people of the 
 State ; and I ask gentlemen if it is not precisely 
 the doctrine contained in this resolve : 
 
 " Throxighout the country, parties have divided 
 upon the Rhode Island question. They have 
 done so because it involves the great American 
 principle that lies at the foundation of all free 
 government. Both parties have heretofore pro 
 fessed belief in the sovereignty of the people. 
 This question has demonstrated that if the Whig 
 j-arty hold to this principle in theory, they deny 
 it in practice. 
 
 " The details of the Rhode Island question, or 
 the conduct of the respective parties, is not the 
 issue between those who take opposite sides on 
 that question. The principle that lies at the 
 threshold is, whether the maxim laid down by 
 Thomas Jefferson, in the Virginia Bill of Rights 
 in 1776, and substantially adopted by every State 
 in the Union, not excepting Rhode Island her 
 self, is true, namely : A majority of the com 
 munity hath an indubitable, unalieiiable, and 
 indefeasible right to reform, alter, or abolish gov 
 ernment in such a manner as shall be judged 
 most conducive to the public weal. 
 
 " This, we hold to be the American doctrine of 
 government. To restrict it to anything less than 
 a majority, so as by any form of existing laws or 
 limitations of suffrage, to compel the majority of 
 the citizens of a political community to ask the 
 consent of authorities chosen by a qualified or a 
 favored minority, to alter, reform, or abolish the 
 government, is to run into the doctrines of the le 
 gitimate governments of Europe. 
 
 " The doctrine now avowed by the most promi 
 nent men in the Whig party, is, that it is unlawful 
 for the people of Rhode Island to frame a Con 
 stitution unless by consent of the legislature. 
 
 " This is the precise doctrine of the Holy Alli 
 ance, put forth in the famous Layback circular, 
 upon the restoration of the Bourbons : 
 
 " < In the name of the most Holy and Indivisible 
 Trinity, their Majesties the Emperor of Austria, 
 the King of Prussia, and the Emperor of Russia, 
 solemnly declare, that useful and necessary 
 changes in legislation and administration ought 
 only to emanate from the free will and intelli 
 
 gent conviction of those whom God has rendered 
 responsible for power. All that deviates from 
 this line necessarily leads to disorder, commotions, 
 and evils far more insufferable than those which 
 they pretend to remedy. 
 
 " We can see no distinction between this doc 
 trine of legitimate government, and the practi 
 cal application of it by the governor of this Com 
 monwealth, and the leaders of the Whig party, to 
 Rhode Island. They care not whether the Con 
 stitution was adopted by a majority of the whole 
 people or not. Their only question is, did the 
 Constitution emanate from the free will of the 
 constituted authorities, those whom God has 
 rendered responsible for power the charter as- 
 embly ? If not, they hold it void, and all who 
 acted under it, rebels. 
 
 " These are general principles applicable to the 
 great American question, involved in the recent 
 struggle of the disfranchised majority of the free 
 people of an American State, to obtain for them 
 selves equal rights with the minority in the choice 
 of her rulers. It seems to us that they must 
 commend themselves not only to every Democrat, 
 but to every man who has an American heart in 
 his bosom. If they are not true, the whole 
 theory of our government is false, and the Lay- 
 back circular ought to take the place of the 
 American Declaration of Independence." 
 
 This is the Address which was sent out by the 
 Democratic members of the legislature in 1842, 
 and made the issue before the people at that elec 
 tion ; and it then received the sanction of the 
 people of Massachusetts. As I remarked, there 
 are the names of quite a number of the members 
 of this Convention attached to this circular, but 
 I will not read them. It is asked, who shall be 
 the judges upon this matter ? What said 
 Thomas Jefferson ? He says : " A majority of the 
 community hath an indubitable, inalienable, and 
 indefeasible right," &c. They are the ones who 
 are to judge in this case. The doctrine of Jeffer 
 son places the matter in its true position. Now, 
 I ask the gentleman from Boston, if, upon the 
 principle which he lays down, it may not be 
 safely declared that this Convention is illegally 
 called, and that we are sitting here without any 
 legal authority ? And if so, I ask him where he 
 finds the authority in the Constitution for our 
 being here to-day? Where does he find the 
 authority for the initiative steps in calling this 
 Convention ? It strikes me that the doctrine 
 which he has advanced, and which his friends 
 have advocated, goes to the full extent of declar 
 ing that we are here now without authority. 
 
 Mr. SCHOULER, of Boston. If the gentle 
 man desires it, I will answer his question. We 
 came here under the act of the legislature, the 
 representatives of the people; and that is suf 
 ficient authority for our assembling in Conven 
 tion. 
 
69th day.] 
 
 CONSTITUTIONAL CONVENTIONS. 
 
 533 
 
 Thursday,] 
 
 HOOPER WHITNEY LORD HALLETT BIRD. 
 
 [July 28th. 
 
 Mr. HOOPER, of Fall River. Then let me 
 inquire where the representatives got their 
 authority to pass the act calling the Convention ? 
 
 Mr. SCHOULER. They got it from the 
 people. 
 
 Mr. HOOPER. Very well; the representa 
 tives would not have had it unless they had got 
 it from the people. Now, if the people could give 
 this power to their representatives to call a Con 
 vention, I want to know why they cannot exer 
 cise it themselves ; and that is all that we claim in 
 this resolve ; more especially if this authority is 
 contained in the original agreement or compact 
 upon which this Constitution was made. I hope 
 that we are not going backwards I hope that 
 those gentlemen who stood upon this ground in 
 1842, are ready to stand upon it to-day, and that 
 instead of retrograding, we shall be a progressive 
 party. 
 
 Mr. WHITNEY, of Boylston. I do not rise to 
 debate this question at all, but I wish to say that 
 I think it has been discussed about long enough. 
 Why should we spend our time upon this mat 
 ter ? I think I can assure gentlemen who are 
 making provision for other Conventions, that the 
 people will remember us long enough not to want 
 a Convention for a good many years to come. 
 [Great laughter.] That is my judgment about 
 the matter. I do not think that we need to 
 trouble ourselves at all about any other Constitu 
 tional Convention for the next ten years ; and we 
 have already got a provision so that one can be 
 called in twenty years. I am willing for one, to 
 wait until that time, and if we can get the reforms 
 which we desire then, we shall be more fortunate 
 than I fear we shall be. I remember hearing a 
 story about a woman who said that she was afraid 
 her visitor would never come again ; but when 
 the reason was told, it was because she was afraid 
 she would never go home. [Laughter.] I do 
 not know but that will be the way with us. Sir, 
 I move the previous question. 
 
 Mr. LORD, of Salem. I would like to make 
 a suggestion to the gentleman from Worcester, 
 for I am exceedingly anxious to hurry the busi 
 ness along, although when I made a motion of 
 that kind, this morning, it was voted down. In 
 order to save the necessity for a reconsideration, I 
 was about to suggest, that the gentleman will ac 
 complish his whole object by simply asking for a 
 division of the question ; and, therefore, those 
 who are in favor of the two first resolves will vote 
 for them, and those who are opposed to the last 
 will vote against it. As the previous question 
 is moved on the reconsideration, if he will with 
 draw that motion, I suppose the previous ques 
 tion will drop through, from having its bottom 
 
 knocked out ; and I do not know that anybody 
 else desires to debate it. 
 
 The question being put on ordering the main 
 question, it was agreed to. 
 
 The question being then stated on the motion 
 of Mr. Allen, to reconsider the vote by which the 
 Convention refused to strike out the third resolve, 
 Mr. HOOPER asked for the yeas and nays ; but 
 they were not ordered. 
 
 The question being taken, the motion to recon 
 sider was agreed to. 
 
 The question then recurred upon the amend 
 ment to strike out the third resolve. 
 
 Mr. HALLETT, for Wilbraham, then moved to 
 amend the resolve proposed to be stricken out, by 
 striking out from it the following words : " And 
 by such mode of proceeding as shall fully and 
 fairly collect and ascertain the will of the major 
 ity," so that the resolve would read as follows, if 
 so amended : 
 
 3. Resolved, That the foregoing provisions shall 
 in nowise restrain or impair the reserved right of 
 the people, in their sovereign capacity, at all times 
 to reform, alter, or totally change their Constitu 
 tion and Frame of Government. 
 
 Mr. BIRD, of Walpole, moved the previous 
 question ; which was ordered. 
 
 The question being then taken on the amend 
 ment of Mr. Hallett, upon a division, there were 
 ayes, 159 ; noes, 58 so it was agreed to. 
 
 The question then recurred on the motion of 
 Mr. Alvord, to strike out the third resolve, as 
 amended ; and the question being then taken, 
 upon a division, there were ayes, 158 ; noes, 89 
 so it was agreed to. 
 
 The PRESIDENT. The question is on the 
 final passage of the resolves, and on that question 
 the Convention has ordered the main question. 
 
 Mr. HUBBABD, of Boston. I call for a divi 
 sion of the question that is, that the question 
 be taken upon the resolves separately. 
 
 The PRESIDENT. The Chair stated on a 
 previous occasion, that the resolves were not 
 divisible ; but upon a more accurate examination, 
 he is now of a different opinion. 
 
 Mr. LORD. I desire to inquire, whether at 
 any time the yeas and nays have been taken upon 
 these resolves ? 
 
 The PRESIDENT. The Chair understands 
 that they have not been taken upon the final pas 
 sage. 
 
 Mr. LORD. Have they been taken upon any 
 stage of them ? My opinion is, that they were 
 passed last night without a quorum being present, 
 and that the yeas and nays have not been taken 
 in any stage of these resolves. 
 
534 
 
 ELECTIONS BY PLURALITY, &c. 
 
 [69th day. 
 
 Thursday,] 
 
 LORD MORTON FRENCH WILSON BIRD. 
 
 [July 28th. 
 
 The PRESIDENT. The yeas and nays have 
 been had on amendments. 
 
 Mr. LORD. But I desire to have them on the 
 final passage ; and as a division has been asked 
 for, and the question is to be taken upon each re 
 solve separately, I will say, that I merely desire 
 the yeas and nays on the first resolution. 
 
 The question being taken on a division, on the 
 demand for the yeas and nays, there were ayes, 
 59; noes, 198. 
 
 So the yeas and nays were ordered. 
 
 Report from a Committee. 
 
 Mr. MORTON, of Taunton. There is a mat 
 ter which was specially referred to the Judiciary 
 Committee, and they were authorized to sit during 
 the sessions of the Convention. They have pre 
 pared a Report which is of some length, and it 
 is of a good deal of importance that its purport 
 should be known, so that it may go before the 
 Revising Committee. It is supposed to be neces 
 sary to print it, and, I therefore ask the unanimous 
 consent of the Convention, to submit the Report 
 at this time, because it will farther the progress 
 of business very much. 
 
 No objection was made, and the Report was 
 read, as follows, and ordered to be printed : 
 
 1. Resolved, That persons holding office by 
 election or appointment under the present Con 
 stitution, shall continue to discharge the duties 
 thereof until their term of office shall expire, or 
 officers authorized to perform their duties, or any 
 part thereof, shall be elected and qualified, pur 
 suant to the provisions of this amended Constitu 
 tion ; when all powers not reserved to them by 
 the provisions of this amended Constitution shall 
 cease : provided, however, that Justices of the 
 Peace, Justices of the Peace and of the Quorum, 
 and Commissioners of Insolvency, shall be au 
 thorized to finish and complete all proceedings 
 pending before them at the time when their 
 powers and duties shall cease, or be altered as 
 aforesaid. 
 
 2. Resolved, That the legislature shall provide, 
 from time to time, the mode in which commis 
 sions or certificates of election shall be issued to 
 all officers elected pursuant to the Constitution, 
 except in case where provision shall be made 
 therein. 
 
 3. Resolved, That the Governor, by and with 
 the consent of the Council, may at any time, for 
 cause shown, remove from office, Clerks of Courts, 
 Commissioners of Insolvency, Judges and Regis 
 ters of Probate, District- Attorneys, llegisters of 
 Deeds, County Treasurers, County Commission 
 ers, Sheriffs, Trial Justices and Justices of Police 
 Courts : provided, however, a copy of the charges 
 upon which said removal is made, shall be fur 
 nished to the party to be removed, and a reason 
 able opportunity given him for defence. 
 
 4. Resolved, That whenever a vacancy shall 
 occur in any elective office, provided for in this 
 
 Constitution, except that of Governor, Lieuten 
 ant- Governor, Councillor, Senator, member of 
 the House of Representatives, and town and city 
 officers, the Governor for the time being, by and 
 with the advice and consent of the Council, may 
 appoint some suitable person to fill such vacancy, 
 until the next annual election, when the same 
 shall be filled by a new election, in the manner to 
 be provided by law : provided, however, Trial 
 Justices shall not be deemed to be town officers 
 for this purpose. 
 
 0. Resolved, That all elections provided to be 
 had under this amended Constitution shall, unless 
 otherwise provided, be first held on the Tuesday 
 next after the first Monday of November, A. D. 
 185-i. 
 
 Dispensing with Yeas and Nays. 
 
 Mr. FRENCH, of New Bedford. The motion 
 for ordering the yeas and nays was not under 
 stood in this part of the Convention, and the 
 number above one- fifth was so small that we 
 think the yeas and nays might be dispensed with. 
 I think that those gentlemen who voted for order 
 ing them will not insist on the demand. I there 
 fore move a reconsideration of the vote by which 
 they were ordered. 
 
 The motion was rejected. 
 
 Mode of Voting at Elections. 
 
 Mr. WILSON, of Natick. I move that the 
 Orders of the Day be laid upon the table, for the 
 purpose of taking up the motion of the gentleman 
 from Walpole, (Mr. Bird,) to reconsider the vote 
 by which the resolves on the subject of elections 
 by plurality, &c., were finally passed. 
 
 The motion to lay the Orders of the Day upon 
 the table was agreed to. 
 
 Mr. BIRD, of Walpole. I made this motion, 
 Mr. President, in the hope that if the reconsider 
 ation is accorded, either myself or some one else 
 might propose some amendments which would 
 make the resolves more acceptable to the Conven 
 tion. I believe that that can be done, and for the 
 purpose of indicating what the amendments I 
 propose to offer are, if the motion to reconsider 
 should be carried, I will, with the permis.^ion of 
 the Convention, read what I propose to do. I 
 shall move to amend the first and fourth resolves, 
 so as to read as follows : 
 
 1. Resolved, That it is expedient to provide in 
 the Constitution that a majority of all the votes 
 given shall be necessary to the election of a Gov 
 ernor, Lieutenant- Governor, Secretary, Treas 
 urer, Auditor, and Attorney- General of the Com 
 monwealth, until otherwise provided by law, but 
 no such law providing that the Governor, Lieu 
 tenant- Governor, Secretary, Treasurer, Auditor, 
 Attorney- General, and Representatives to the 
 General Court, or either of them, shall be elected 
 
69th day.] 
 
 ELECTIONS BY PLURALITY. 
 
 535 
 
 Thursday,] 
 
 DAVIS LORD ASPINWALL GRAY WILSON. 
 
 [July 28th. 
 
 by plurality, instead of a majority of votes given 
 in, shall take effect until one year after its pas 
 sage ; and if at any time after the enactment of 
 any such law, and the same shall have taken 
 effect, such law shall he repealed, such repeal 
 shall not become a law until one year after the 
 passage of the repealing act ; and in default of any 
 such law, if at any election of either of the above 
 named officers, except the Representatives to the 
 General Court, no person shall have a majority 
 of the votes given, the House of Representatives 
 shall, by a majority of viva voce votes, elect two 
 out of three persons who had the highest, if so 
 many shall have been voted for, and return the 
 persons so elected to the Senate, from which the 
 Senate shall, by vi-ja voce vote, elect one who 
 shall be Governor, or other officer to be elected. 
 
 4. Resolved, That in the election of all city or 
 town officers such rule of election shall govern 
 as the legislature may by law prescribe. 
 
 Without saying anything farther in relation to 
 this matter, I will only express the hope that the 
 vote carrying these resolves to their final passage 
 may be reconsidered, and then I will present 
 these amendments in their order, and say a very 
 few words explanatory of the object of each 
 amendment. 
 
 The question being taken on the motion to 
 reconsider, it was, on a division, decided in the 
 negative ayes, 112; noes, 118. 
 
 So the motion to reconsider was rejected. 
 
 Mr. DAVIS, of Plymouth. I believe that the 
 question on the last vote was not properly under 
 stood I mean on the motion to reconsider. I 
 think some gentlemen near me did not under 
 stand it. 
 
 The PRESIDENT. The attention of the Chair 
 has been called to the result of the vote. The 
 gentleman from Plymouth will pardon the Chair 
 till the vote is again announced. Several gentle 
 men have expressed the opinion that the an 
 nouncement of the Chair was incorrect ; but on 
 a second examination of the figures, the Chair 
 finds that the vote was correctly announced. 
 
 Mr. DAVIS, of Plymouth. I understand from 
 several gentlemen in this quarter, that the ques 
 tion on the motion to reconsider was not dis 
 tinctly understood, the gentleman from Walpole 
 (Mr. Bird) not being distinctly heard. If it is 
 in order, I would like to move that the question 
 be taken again. 
 
 The PRESIDENT. It can only be done by 
 general consent. 
 
 Mr. LORD, of Salem. I object. 
 
 Mr. DAVIS. Then I call for the yeas and 
 nays. 
 
 The PRESIDENT. The yeas and nays may 
 be taken, if they are ordered by the Convention. 
 
 Mr. LORD. Do I understand the President 
 
 to decide, that the yeas and nays may be taken 
 after a formal announcement of the vote on a di 
 vision of the House ? 
 
 The PRESIDENT. They may. The yeas 
 and nays are for a verification of the vote taken 
 by count. The Chair has no doubt whatever, 
 that in this .state of the question, before proceeding 
 to the consideration of any other business, the 
 yeas and nays may be ordered. This has been 
 repeatedly done during the session of the Con 
 vention, and the recollection of the Chair is, that 
 it has been done on the demand of the gentleman 
 from Salem himself. 
 
 Mr. LORD. Never upon any motion of mine. 
 
 The PRESIDENT. The Chair may be in 
 error as to that, but such is the impression of the 
 Chair at this moment. 
 
 Mr. LORD. I may have called for the yeas 
 and nays before the vote was verified by a count, 
 or I should say before the result of the count was 
 announced, but never after the announcement ; 
 for I did not conceive it at all possible that it 
 could be done according to parliamentary usage. 
 I suppose it is not competent for any member who 
 has voted affirmatively or negatively in a count, 
 to change his vote when taken by yeas and nays, 
 for the purpose of changing the result. With 
 such a practice, we might go on, ad libitum, and 
 results might be changed in this way, at any 
 time. 
 
 Mr. ASPINWALL, of Brookline. I under 
 stand that there is no motion before the Conven 
 tion. The question has been taken on the motion 
 to reconsider, and, on a division, was rejected. 
 That, if I understand anything, entirely disposes 
 of that matter. 
 
 The PRESIDENT. The gentleman from 
 Brookline overlooks the fact, that when the ques 
 tion was first taken on the motion to reconsider, 
 the Chair declared the vote to be in the affirma 
 tive. A division was then demanded, and, a 
 count being taken, the vote was declared in the 
 negative there being a majority of six against 
 the reconsideration. And now the gentleman 
 from Plymouth desires that that vote may be 
 verified by the yeas and nays, which the Chair 
 decides to be clearly in order. 
 
 Mr. GRAY, of Boston. I dislike to dissent 
 from any opinion entertained by the Chair on a 
 question of order, but I beg leave to suggest to 
 the Chair, that when a vote has been declared on 
 a division, by the Chair, and that vote is not 
 questioned before 
 
 Mr. WILSON, of Natick. I rise to a point of 
 order. 
 
 The PRESIDENT. The gentleman from Na 
 tick will state his point of order. 
 
536 
 
 QUESTION OF ORDER, &c. 
 
 [69th day. 
 
 Thursday,] 
 
 WILSON GRAY DAVIS BUCK HATHAWAY STEVENSON. 
 
 [July 28th. 
 
 Mr. WILSON. It is that the Chair has already 
 decided the point of order, and that it is not far 
 ther debatable unless upon an appeal. 
 
 The PRESIDENT. The Chair asks the ad- 
 vice of the gentleman from Boston, (Mr. Gray,) 
 and he can accordingly proceed with his remarks. 
 
 Mr. GRAY. What I have to say, is, tnat when 
 a vote is declared, and that declaration is not 
 questioned, the matter is placed on a different 
 ground. I am satisfied, however, with the dec 
 laration of the Chair. 
 
 The PRESIDENT. The question is on order 
 ing the yeas and nays. 
 
 Mr. DAVIS, of Plymouth. Before the yeas 
 and nays are ordered, I should like the gentleman 
 from Walpole to restate the object of his amend 
 ments, so that they may be understood by the 
 Convention. 
 
 The PRESIDENT. It is not in order. The 
 question is on taking the yeas and nays on the 
 motion to reconsider the resolves. 
 
 Mr. BUCK, of Lanesborough. Is it in order 
 to have the resolves read ? 
 
 The PRESIDENT. It is in order. The mo 
 tion is on the final passage of certain resolves. 
 The gentleman from Lanesborough asks that the 
 resolves may be read. The gentleman has that right. 
 
 The resolves were read accordingly. 
 
 Mr. BUCK. My object in asking for the read 
 ing of the resolves was, that we might vote un- 
 derstandingly. I would like now to hear the 
 amendments read. 
 
 The PRESIDENT. It is not in order to read 
 the amendments, the motion being on reconsider 
 ing the vote by which these resolves were ordered 
 to their final passage. 
 
 Mr. HATHAWAY, of Freetown. Does not 
 this motion to reconsider, open the whole ques 
 tion involved in the resolves ? 
 
 The PRESIDENT. If the Convention order 
 a reconsideration of the vote, the whole question 
 is then opened. But at present the question is 
 on ordering the yeas and nays, for the purpose of 
 verifying the vote as taken upon a division. The 
 Chair will read the third rule of the Convention. 
 
 "He [The President] shall declare all votes ; but, 
 if any member doubts a vote, the President shall 
 order a return of the number voting in the affirm 
 ative, and in the negative, without any farther 
 debate upon the question. When a vote is 
 doubted, the members for or against the question, 
 when called on by the President, shall rise and 
 stand uncovered till they are counted." 
 
 Question of Order. 
 
 Mr. STEVENSON, of Boston. I am sorry to 
 be under the necessity of stating what I am about 
 
 to state ; but, under the circumstances, I feel it 
 my duty to appeal from the decision of the Chair, 
 as to the power of the Convention again to vote 
 on the motion to reconsider, after that vote has 
 been solemnly declared on a count of the House. 
 
 The PRESIDENT. With the permission of 
 the gentleman from Boston, the Chair will again 
 state the position of the question. It is this : 
 The gentleman from Walpole moves the recon 
 sideration of a vote. After stating the purpose 
 for which he makes the motion, the question is 
 put to the Convention, and the Chair declares it 
 to be carried affirmatively. A count is demanded, 
 and being taken, the Chair declares the vote to be 
 in the negative; and the gentleman from Ply 
 mouth asks for the yeas and nays. The Chair, 
 considering the yeas and nays merely a matter of 
 verification of the vote by count, admits the mo 
 tion for the yeas and nays, and from that decision 
 the gentleman from Boston (Mr. Stevenson) takes 
 an appeal. The question, therefore, is shall the 
 decision of the Chair stand, as the judgment of 
 the Convention. 
 
 Mr. STEVENSON. The President is certainly 
 aware, if 110 others in the Convention are, that I 
 would not appeal from any decision of his, unless 
 I felt in duty bound to do so. I understand the 
 rule of the Convention, and of all parliamentary 
 bodies, to be, that it is the right of any member, 
 when the presiding officer has declared, under 
 circumstances under which there can be a doubt 
 namely, as where the manner in Avhich the 
 voices of members fell upon his ear as to what 
 the vote is, then it is the right of any member of 
 the Convention, or of any other parliamentary 
 body, to doubt whether the Chair has decided 
 correctly ; and when any such member so doubts, 
 then it becomes the duty of the Chair to make it 
 certain whether or not he has announced correctly 
 what the vote was, by calling upon members to 
 stand up and be counted. That when the Chair 
 has proceeded so far, and has called upon mem 
 bers of the assembly to stand up in their places 
 and be counted, as to how they voted, that then 
 that decision is final, and the vote is passed. And 
 I appeal, not only to the assembly, but to the 
 Chair, and ask him, what the record shall be 
 which the Secretary is bound to make of the pro 
 ceedings of this Convention, if the decision of the 
 Chair shall now stand ? What is the record of 
 the Secretary ? That Secretary has already made 
 his record ; and if he has not yet made it, he has 
 not performed his duty. What is the record? 
 That the question having been put upon the mo 
 tion of the gentleman from Walpole, (Mr. Bird,) 
 the Chair decided that it was not a vote ; that it 
 was doubted ; that a division was called for ; that 
 
69th day.] 
 
 QUESTION OF ORDER. 
 
 537 
 
 Thursday,] 
 
 STEVENSON. 
 
 [July 28th. 
 
 a division being had, and a count being taken 
 the thing being made certain the Chair had de 
 cided that it was not a vote, and therefore the 
 motion of the gentleman from Walpole had been 
 rejected. And after that record, what motion is 
 there before the Convention ? After that record, 
 what question is there upon which any gentle 
 man upon this floor can get up and ask the yeas 
 and nays of the Convention ? If the Orders of the 
 Day be up, I submit, that immediately upon that 
 fact being announced, the next article in the 
 Orders of the Day is before the Convention ; and 
 there is no question upon which gentlemen can 
 call for the yeas and nays. Now, let me state a 
 reason why it should be so, if it were not per 
 fectly palpable that it were so. It should be 
 so, if you desire, that in every deliberative as 
 sembly, it should be in the power of no man to 
 undertake to alter a vote, under any influence 
 whatever. You desire that each vote which any 
 member shall give, in any deliberative assembly, 
 shall be the honest expression of his own opin 
 ions, uncontrolled by the opinion of anybody else. 
 We, four hundred men, have stood up here and 
 given expression, each of us, of our honest opinion, 
 and given that expression upon a motion which 
 our rules declare shall not be reconsidered or re 
 viewed, and then gentlemen ask for the yeas and 
 nays upon the same question. We have each, 
 here in this assembly, voted upon the question, 
 whether or not the motion of the gentleman from 
 Walpole ought to be adopted; and the reason 
 why you have provided in your rules that when 
 an assembly has refused to reconsider a vote, the 
 same motion shall not be presented to them again 
 is, that it operates to prevent your undertaking to 
 take the vote again upon the same question. If 
 it may not be offered again, may it be voted upon 
 again ? I ask, if the decision of the Chair stand, 
 what the record is ? It will be the duty of your 
 Clerk to declare, upon his record, that this assem 
 bly has voted yes and no to the same proposition, 
 and that a proposition, mind you, Mr. President, 
 is completed, which stands as the fact ? Will it 
 which your rules declare, when once voted upon, 
 it shall not be reviewed ; and, Sir, when that record 
 be the fact, that this assembly have refused to re 
 consider, according to the record as it stands now, 
 or will it be the fact that they have reconsidered, 
 in case a vote for a different decision be passed ? 
 Each of the entries upon the journal of the Sec 
 retary states the fact. They cannot both be the 
 fact. Which shall be the record ? No, Sir, I do 
 not understand, with yourself although I am 
 very apt to agree with you in opinion, as you are 
 aware I do not understand, with yourself, that 
 the purpose of the yeas and nays is to make cer 
 
 tain the result of a vote. It has another purpose. 
 The purpose of a division is to make certain the 
 result of a vote. Not only is that so in the un 
 derstanding of every-body, but it is so according 
 to our rules. When a member doubts, and 
 therefore asks for a division, the rule says, mem 
 bers shall stand in their places and be counted ; 
 and when they have done so, and have been 
 counted, that vote is decided. And I ask, 
 whether, under the rule that a motion to recon 
 sider shall not be entertained again, you will 
 entertain it again, after it has been passed upon 
 and decided, and put upon your journal, because 
 it may be stated by the Chair that the yeas and 
 nays are a mode of ascertaining the result of a 
 vote ? The yeas and nays are for ascertaining a 
 very different thing. They are not for the pur 
 pose of deciding what the result of a vote was ; 
 for, Sir, the yeas and nays are called for before 
 anybody doubts what the result of a vote is. 
 The ordinary fact is, that he who calls for the 
 yeas and nays, in a deliberative assembly, is a 
 man who knows what the result of the vote will 
 probably be, or who thinks he knows, and there 
 fore, before anybody can doubt whether the pre 
 siding officer has decided correctly as to the result 
 of the vote. The yeas and nays are for a differ 
 ent purpose. After a vote has been decided and 
 gone, there is nothing pending before an assembly 
 upon which a member can ask for the yeas and 
 nays. Your rule is, when any measure is pend 
 ing upon which a vote is to be taken, one- fifth 
 may order the yeas and nays upon it. That rule 
 is not, Sir, that after the question has been de 
 cided by the Convention, the yeas and nays may 
 be called for, to see if you cannot induce some 
 gentlemen to change their votes. 
 
 I submit the question contrary to my own 
 -wishes, for I voted for the reconsideration. I am 
 impelled entirely by a sense of duty, for I am 
 in favor of a reconsideration ; for I wish this as 
 sembly would reconsider the vote by which they 
 passed that strange thing. I desire that they 
 should reconsider, and, if possible, put it in the 
 right shape, before they present it to the people. 
 But, Sir, when the presiding officer of this body 
 says that, after the body itself has, by its vote, 
 decided either with me or against me, that another 
 member may to-day, to-morrow, or next week, 
 ask for the yeas and nays on that question, I 
 shall be under the necessity of appealing from 
 any such decision of the Chair. That question 
 has, under our rules, gone out of our possession 
 as completely as if it were a week hence that we 
 were talking about the yeas and nays. If you 
 may ask them now, why not to-morrow, why 
 not on Saturday, why not on Monday ? The pur- 
 
538 
 
 QUESTTION OF ORDER. 
 
 [69th day. 
 
 Thursday,] 
 
 STEVENSON LORD WILSON GHAT. 
 
 [July 28th. 
 
 poses of the two things are entirely different, name 
 ly : the " division," and the " yeas and nays." A 
 division is a right inhering in each member of the 
 Convention. The yeas and nays are a right in 
 hering in one- fifth of the Convention, and in not 
 less. A division is anything which any man 
 who doubts whether the speaker is incorrect in 
 opinion as to which way men voted, can call for. 
 The yeas and nays are a thing which not less than 
 one-fifth can demand. A division, under the 
 rules, is for the purpose of deciding whether a 
 speaker was right or not in declaring the vote. 
 The yeas and nays are for no such purpose. 
 They are for the purpose of informing the con 
 stituents of the members how each man in the 
 assembly may have voted on each question before 
 them. The two have different objects and differ 
 ent purposes. They are under different control. 
 And yet, the decision which you have made, Mr. 
 President, depends entirely upon the suggestion 
 which you made at the same time, that the yeas 
 and nays are called for the same reason that a 
 division is demanded. A division may be de 
 manded by any one member. Each of us, as we 
 sit in our seats, have just as much right to our 
 opinion as to whether the ayes or the noes prevail 
 ed, as the presiding officer has. The presiding officer 
 has the power to announce to the assembly what 
 he thinks on that one point. He who doubts 
 whether he thinks correctly has the same power 
 which the presiding officer has, and he may not 
 refuse to make it certain which is correct in that 
 respect the presumption being that each man in 
 an assembly like this votes in the same way, 
 whether he votes in his seat unseen, or rises in his 
 place to be counted. 
 
 [Here the hammer fell ; the gentleman having 
 occupied the fifteen minutes allowed by the rule 
 limiting debate.] 
 
 Mr. STEVENSON. I would ask the Chair 
 whether there is any limitation to debate upon a 
 question of appeal r 
 
 The PRESIDENT. The rule of the Conven 
 tion is as follows : 
 
 July 16th. Resolved, That on and after Mon 
 day next, no member of this Convention shall 
 speak more than fifteen minutes on any subject, 
 without leave." 
 
 Mr. LORD, of Salem. I never, that I recol 
 lect, took an appeal from the decision of any 
 presiding officer, with one exception, and then 
 merely for the purpose of expressing an opinion 
 on the subject, and not for the purpose of having 
 the decision reversed. In my judgment it is a 
 matter which should be entertained with a great 
 deal of care, and should be entertained and con 
 
 sidered not for any temporary purpose, but as a 
 matter of judicial decision and precedent. To 
 that end it is always usual in any case of im 
 portance to settle the appeal upon the record by 
 the yeas and nays. I believe that is the universal 
 practice, and before I sit down, I propose to ask 
 the yeas and nays upon this matter of appeal. 
 But I hope the President will reconsider his de 
 termination. I understand that this motion has 
 never been entertained in either branch of con 
 gress. Several members of congress, now mem 
 bers of this Convention, have stated that within 
 their knowledge, there never has been such a 
 motion entertained, after the decision was an 
 nounced, and I have yet to hear the first person 
 state a single instance in which, after the vote has 
 been verified by a count, and after it has been 
 declared, in which there has been no mistake, and 
 in which count there has been no mistake, such a 
 motion has been entertained. I know the ques 
 tion was discussed in the last House of Represent 
 atives, and it arose upon the question whether the 
 yeas and nays could be called, after the Chair had 
 called upon the House to divide. The entire 
 minority of that body held that after the Chair 
 had called upon the House to divide, the yeas and 
 nays could not be called, but the Speaker, sus 
 tained by a majority of the House, ruled that the 
 yeas and nays might be called at any time before 
 the vote had been verified and announced from 
 the Chair. 
 
 Now, Sir, if there is any reason for this rule, I 
 desire to hear it. We shall, of course, hear the 
 reasons of the President, and in order that not 
 only that gentleman but the whole assembly may 
 stand exactly right upon this matter of precedent 
 and law, I move that when the question upon 
 this appeal is taken, it be taken by yeas and nays. 
 
 A division being called for upon the motion, it 
 was, by a vote of ayes, 60 ; noes, 161 decided 
 in the affirmative. 
 
 So the yeas and nays were ordered. 
 
 Mr. WILSON, of Natick, moved that the ap 
 peal be laid upon the table. 
 
 Mr. GRAY, of Boston. I rise to a question of 
 order. Can that motion be entertained ? It ap 
 pears to me that under the rule of the Convention 
 no other business is in order until the question of 
 appeal has been decided. 
 
 The PRESIDENT. The Chair will state the 
 question. The question of appeal was pending 
 when the gentleman from Natick moved that the 
 appeal lie upon the table ; upon that the gentle 
 man from Boston rose to a question of order, 
 whether it is competent to lay the appeal upon the 
 table. There are two usages and principles upon 
 which this question will be decided. It is the prac- 
 
69th day.] 
 
 QUESTION OF ORDER. 
 
 539 
 
 Thursday,] 
 
 GRAY LORD STEVENSON BRIGGS. 
 
 [July 28th. 
 
 tice of the House of Representatives, invariably, 
 where appeals are taken from the decision of the 
 Chair, to entertain the motion to lay the question 
 of appeal upon the table. The practice of the 
 Senate of the United States, however, is different ; 
 and several years since in 1843 or 1844 at 
 least one or two days were expended in debate 
 by the first men of the nation, whether the ques 
 tion of appeal could be laid upon the table, and it 
 was the judgment of that body that the appeal 
 could not be laid upon the table. Since that time 
 and before, however, the practice of the House of 
 Representatives has been different, and inasmuch 
 as the Chair prefers to adhere to the usage of that 
 body contrary to its own inclination, the Chair 
 rules that the motion to lay the appeal upon the 
 table is in order. 
 
 Mr. GRAY, of Boston. If I may be allowed 
 the indulgence of the Convention for a few mo 
 ments, I desire to state that whatever has been 
 the course pursued in congress, it has ever been 
 the ruling of the Chair of this House, that an ap 
 peal shall be decided before any other business is 
 transacted. I am sorry to be compelled to dissent 
 from the decision of the Chair, but an experience 
 of twenty years has taught me that in this Com 
 monwealth, at least, the practice is different. If 
 the Chair adheres to its decision, I shall call for 
 the yeas and nays on the motion to lay the appeal 
 on the table. 
 
 The PRESIDENT. The Chair does not doubt 
 that the gentleman is correct so far as the usage of 
 this State is concerned. The Chair desires to 
 say, moreover, that confident in the opinion he 
 has given, he would rather that the Convention 
 should decide this matter for itself. And if a 
 motion is made, he will rule upon it as he has 
 stated. 
 
 Mr. LORD. I desire to ask, what will be the 
 effect if the appeal is laid upon the table, and 
 whether the decision of the Chair will then be 
 considered as affirmed ? 
 
 The PRESIDENT. It is for every gentleman 
 to decide for himself in regard to the effect. 
 
 Mr. LORD asked for the yeas and nays. 
 
 The PRESIDENT. The yeas and nays have 
 been already demanded. 
 
 The question was then taken on ordering the 
 yeas and nays, and it was decided in the affirma- 
 ative. 
 
 Mr. STEVENSON, of Boston. Before the 
 yeas and nays are taken, if the gentleman will 
 allow me, I desire to read the second rule. It is 
 as follows : 
 
 " The President shall preserve decorum and 
 order ; may speak to points of order in preference 
 to other members ; and shall decide all questions 
 
 of order subject to an appeal to the Convention 
 on motion regularly seconded ; and no other 
 business shall be in order till the question on the 
 appeal shall have been decided." 
 
 "Would it, under this rule, be in order to pro 
 ceed to any other business until the appeal has 
 been disposed of? 
 
 The PRESIDENT. Certainly not. The lay 
 ing of the appeal upon the table disposes of it. 
 
 Mr. BRIGGS, of Pittsfield. It always gives 
 me pleasure to sustain the decision of the Chair. 
 According to the practice of the House of Rep- / 
 resentatives at Washington, I believe that the last 
 decision is correct, though I think the practice of 
 the Senate of the United States is somewhat dif 
 ferent. I recollect several instances where appeals 
 have been laid upon the table in the former body. 
 But, I regret to say that I cannot sustain the de 
 cision of the Chair in relation to another point, 
 that is, the taking of the yeas and nays after the 
 result of a division has been announced. 
 
 The PRESIDENT. The Chair would say, 
 that if the practice of the House of Representa 
 tives is different, he is in error. 
 
 Mr. BRIGGS. I would state to the Chair, 
 that in twelve years experience, I have no recol 
 lection of a different course being pursued from 
 that to which I have alluded. In the House of 
 Representatives they take questions by standing 
 up and counting, and by tellers. And I have 
 frequently known the call for the yeas and nays, 
 which is a constitutional right, being made, after 
 the House had passed between the tellers, and be 
 fore the announcement of the result was made, 
 but never after the decision of the tellers has been 
 reported to the Chair. My recollection is that it 
 was always pronounced too late to make a de 
 mand for the yeas and nays after such a decision 
 had been announced. 
 
 The PRESIDENT. The gentleman from Pitts- 
 field will find, upon examination, that there are 
 frequent cases where, after the vote has been an 
 nounced, and the result of the division has been 
 placed upon the journal, the yeas and nays have 
 been ordered. The Chair is confident that that is 
 the practice, and upon that it bases its decision. 
 If it is not the practice of the House of Repre 
 sentatives, the Chair is in error. With the leave 
 of the Convention, the Chair will state the prin 
 ciples upon which this decision is made, aside 
 from the practice of the House of Representatives 
 at Washington, to which the Chair has adverted. 
 It is that the yeas and nays are ordered, not only 
 as a method of determining a vote, but for the 
 purpose of a record. One-fifth of the members 
 have a right to order the yeas and nays to be taken 
 upon all questions for the purpose of obtaining a 
 
540 
 
 QUESTION OF ORDER. 
 
 [69th day. 
 
 Thursday,] WHITXEY WILSON HALLETT ASPINWALL LORD BATES. [July 28th. 
 
 record. There is no record, and can be none, ex 
 cept the yeas and nays be taken, and this is pro 
 vided for by a rule of the Convention. The 
 Chair, regarding this question of reconsideration 
 as a question embracing a principle as vital as any 
 other, beHeves it to be the right of one- fifth part of 
 the Convention to have the record by yeas and 
 nays upon this question, as upon every other 
 where it is demanded. And the mere fact that it 
 may have been determined by a vote of sound, 
 or by the raising of hands, or by the report of 
 monitors, which it is at the option of the Chair or 
 the Convention to require or not, can produce no 
 record. The record is the responses of members 
 to the call of their names, and, unless the Con 
 vention direct the call, there can be no full and 
 perfect record. 
 
 But, aside from this theory, the Chair stands 
 upon the usage of the House of Representatives. 
 It is, that when a question has been taken by 
 sound, and declared, and a decision again declared 
 upon the count of the Chair, and another count 
 still, ordered by tellers, and such count is taken 
 and announced to the House, one-fifth of the 
 members present, if a quorum be present, still 
 have a right to a verification and a record of the 
 vote by yeas and nays. The rule of the Con 
 vention is clear and explicit upon this subject, 
 and is substantially the same as the constitutional 
 provision relating to the House of Representatives 
 of the United States. 
 
 This is one of those questions upon which one- 
 fifth of the members present have a right to have 
 the yeas and nays taken in verification of the 
 record. The Chair has no doubt of the correct 
 ness of the decision, upon the well established 
 principles of American parliamentary law ; and 
 is impressed with the conviction that it is sustain 
 ed by the usage of the first and highest delibera 
 tive assembly in the world. 
 
 Mr. WHITNEY of Couway moved the pre 
 vious question. 
 
 The PRESIDENT. The Chair desires to say, 
 that he would prefer to have this question decided 
 by the Convention at the present time. 
 
 Mr. WILSON, of Natick. After the statement 
 which has just been made by the Chair, I will 
 withdraw my motion to lay the appeal upon the 
 table, as it is a matter personal to the Chair. 
 
 Mr. HALLETT, for Wilbraham. I renew the 
 motion of the gentleman from Natick, to lay this 
 appeal on the table. I wish to make an explana 
 tion myself, for I shall be unable to sustain the 
 decision of the Chair. I do not wish to make a 
 personal issue with that gentleman, however, and 
 I think we can all vote to lay the question upon 
 the table. I see no necessity for any controversy 
 
 of this kind upon a nice point of order, and I 
 therefore renew the motion of the gentleman from 
 Natick, (Mr. Wilson,) for it seems to me to be 
 the only quiet way of disposing of the subject. 
 
 Mr. ASPINWALL, of Brookline. I would 
 inquire of the President, if it is not competent 
 for any member after the present appeal is laid 
 upon the table, to appeal from the decision of the 
 Chair? 
 
 The PRESIDENT. If this appeal is laid upon 
 the table, it will be held by the Chair to be finally 
 disposed of. 
 
 Mr. LORD. Suppose that it is laid upon the 
 table by a vote of this body, can any gentleman 
 move to take it up again ? 
 
 The PRESIDENT. Certainly. 
 
 Mr. LORD. I would then inquire if a matter 
 which is laid upon the table is permanently de 
 cided, and until it is decided, can we go on with 
 any other business under this rule, to which I 
 desire to call the attention of the President ? It 
 is the second rule. 
 
 Mr. BUTLER, of Lowell. I rise to a point of 
 order. 
 
 The PRESIDENT. The gentleman from Sa 
 lem is addressing the Chair. 
 
 Mr. BUTLER. His remarks are in the nature 
 of debate ; and I submit that this is not a debata 
 ble question. 
 
 Mr. LORD. I desire merely to make an in 
 quiry of the Chair, in regard to the disposition of 
 this subject. The second rule requires that : 
 
 "The President shall preserve decorum and 
 order ; may speak to points of order in pref 
 erence to other members ; and shall decide all 
 questions of order, subject to an appeal to the 
 Convention on motion regularly seconded ; and 
 no other business shall be in order until the ques 
 tion on the appeal shall have been decided." 
 
 Although the practice under the rule may be 
 different, yet if I can move to take a matter from 
 the table when it has been ordered to lie there 
 
 Mr. BATES, of Plymouth. I should like to 
 know what question the gentleman from Salem 
 is discussing ? I believe there is no question before 
 the House that is debatable. 
 
 The PRESIDENT. The gentleman for Wil 
 braham, (Mr. Hallett,) has moved that the appeal 
 be laid upon the table ; and the gentleman from 
 Salem, (Mr. Lord,) rose to a point of order. The 
 Chair has not yet ruled upon that question of 
 order. If the gentleman will indulge him for a 
 moment, the Chair would say, that the motion for 
 the previous question does not cut off the motion 
 to lay upon the table. 
 
 Mr. BATES. Is the motion to lay upon the 
 table debatable ? 
 
69th day.] 
 
 QUESTION OF ORDER. 
 
 541 
 
 Thursday,] 
 
 LORD BATES MORTON HALLETT WHITNEY. 
 
 [July 28th. 
 
 The PRESIDENT. It is not. The gentle 
 man from Salem rose to a point of order. 
 
 Mr. LORD. The point which I was suggest 
 ing, and to which I only desire to call the atten 
 tion of the President, was this 
 
 Mr. BATES. I call the gentleman to order. 
 The question is on ordering the appeal to lie upon 
 the table, and that question is not debatable. I 
 therefore insist upon my point of order. 
 
 The PRESIDENT. The gentleman from Sa 
 lem does not state the question of order ; the 
 question is on the motion of the gentleman for 
 Wilbraham to lay the appeal upon the table. 
 
 Mr. LORD. I propose to state the point of 
 order, if the gentleman will allow me to proceed 
 without interruption ; but I cannot do it without 
 using language. My proposition is this : that by 
 a rule of this House, no business is in order after 
 an appeal is taken from this decision of the 
 Chair, until that appeal has been decided ; not 
 temporarily disposed of, but decided. Now, the 
 Chair has already ruled, that it is competent to 
 take this subject from the table, after it has been 
 laid there ; but I belieye there is a parliamentary 
 rule which says, that after a matter has been once 
 disposed of, by laying it upon the table, it is not 
 in order to take it up again, unless there has been 
 an intervention of business in the meantime. So 
 that if this subject is now laid upon the table, we 
 can do no business under the rule, until it has 
 been permanently settled by a decision upon it. 
 Now, I desire to know of the Chair, not by any 
 rule of precedent ; not by any rule of the Senate, 
 or House of Representatives of the United States ; 
 but, whether under the rules of this body, any 
 business can be done until a question of appeal 
 has been permanently decided, except it be to 
 adjourn. Although a motion to lay upon the 
 table may possibly be in order, yet if we can do 
 nothing but adjourn, after taking that course be 
 cause having just laid it down, we cannot take it 
 up again or proceed to other business in the mean 
 time, under the rules of the Corvention shall 
 we make any advance by such a course ? I call 
 this fact to the attention of the Chair, not because 
 I have not a great respect for the decision of the 
 Chair, for I have ; but because it seems to me, 
 and I think it will strike other gentlemen in the 
 same way, that laying a subject upon the table is 
 not such a final decision of the question, as the 
 rule contemplates. 
 
 Mr. MORTON, of Taunton. I rise to a ques 
 tion of order. I desire to call the attention of 
 the Chair to the course of events here. If I 
 understand the state of affairs correctly ,- the gen 
 tleman from Conway (Mr. "Whitney) rose and 
 moved the previous question. Afterwards, the 
 
 gentleman for Wilbraham (Mr. Hallett) moved 
 to lay the question of appeal upon the table. 
 What, therefore, is the question pending ? 
 
 The PRESIDENT. The immediate question 
 pending, is the motion to lay the appeal upon the 
 table. 
 
 Mr. MORTON. Does that supersede the 
 motion for the previous question ? 
 
 The PRESIDENT. It supersedes it for the 
 present. The Chair will read the rule on this 
 point : 
 
 " When a question is under debate, the 
 President shall receive no motion but to adjourn, 
 to lay on the table, for the previous question, to 
 postpone to a day certain, to commit, to amend, 
 or to postpone indefinitely ; which several motions 
 shall have precedence in the order in which they 
 stand arranged." 
 
 Mr. HALLETT, for Wilbraham. If the gen 
 tleman from Taunton, (Mr. Morton,) will give 
 way, I desire to say a single word. The previous 
 question, I understand, is superseded by the 
 motion to lay upon the table. I made the motion 
 to lay the appeal upon the table, for the purpose of 
 having an opportunity to express my opinion as 
 to the best mode of getting rid of the question ; 
 but as the President has intimated that he is 
 desirous of meeting the question, and as I am 
 ready to meet it and vote upon it honestly and 
 courteously, I will withdraw my motion. 
 
 Mr. MORTON, of Taunton. I wish, in a few 
 words, to give the reasons why I shall vote to 
 sustain the Chair in his decision, though they may 
 be somewhat different from those which have 
 been submitted by other gentlemen. I am told, 
 however, that the previous question has been 
 demanded ; I do not desire to interfere with that. 
 
 Mr. WHITNEY, of Conway. I will with 
 draw my motion for the previous question, if the 
 gentleman will renew it. 
 
 Mr. MORTON. I never made a motion for 
 the previous question in my life, and never intend 
 to do so. 
 
 Mr. WHITNEY. I wiU withdraw it if the 
 gentleman desires. 
 
 Mr. MORTON. I wish to state a few of the 
 reasons which will influence me in voting to 
 sustain the decision of the Chair. And, in order 
 to understand this question properly, it is neces 
 sary we should look for a moment at the course 
 of events which brought it before us. A motion 
 was made to reconsider the resolves on the sub 
 ject of elections by plurality ; it was put to a vote, 
 and the President announced the decision. A 
 division was then called for the decision first 
 announced, of course not being final in its char 
 acter the votes were counted, and the President 
 
542 
 
 QUESTION OF ORDER. 
 
 [69th day. 
 
 Thursday,] 
 
 DAVIS MORTON BUTLER BRIGGS. 
 
 [July 28th. 
 
 announced the result. Some gentlemen, how 
 ever, doubted the correctness of that statement, 
 supposing that an error had arisen either in com 
 puting the returns of the monitors or in the 
 monitors themselves. The President listened to 
 the statements made, ree xamined his figures, and 
 again announced the result as before. This not 
 being satisfactory to the minds of several indi 
 viduals, the yeas and nays were then called for, and 
 ordered. These are briefly the facts of the case, 
 as I understand them ; and I maintain, Sir, that 
 there never was a final enunciation of the decis 
 ion. The subject was then under consideration, 
 and if any person in this Convention had de 
 manded another count, I have no doubt that the 
 President would unhesitatingly have ordered it 
 at once, and every one would have acquiesced. 
 If this was the case, therefore, the question was 
 still undecided, and the motion for the yeas and 
 nays was perfectly in order. 
 
 Mr. DAVIS, of Plymouth. If the gentleman 
 will allow me to interrupt him a moment. Ob 
 jection was made by me before the final announce 
 ment of the vote ; and having commenced making 
 my statement, the Chair desired me to wait until a 
 new count was had, and in the meantime several 
 gentlemen stated to me that they had not voted, 
 because they did not understand what the ques 
 tion was. 
 
 Mr. MOUTON. I was arguing upon the state 
 of the facts, as I regard them, and the fact now 
 stated by the gentleman from Plymouth, is addi 
 tional evidence which very much strengthens the 
 view I took. 
 
 If, therefore, it was an open, undecided ques 
 tion at the time the division was called for, 
 no gentleman will deny that it was entirely 
 within the rule ; and consequently, it was proper 
 and legitimate to demand the yeas and nays. 
 Gentlemen were entitled to have them taken, for 
 the rule provides that on all questions whatever, 
 the yeas and nays shall be ordered if one-fifth 
 shall demand them. I contend, therefore, that it 
 was perfectly correct to order the yeas and nays, 
 and the argument of the gentleman from Boston, 
 (Mr. Stevenson,) ingenious and able as it was, 
 was based upon the mistaken supposition that 
 they were to be taken upon the final passage of 
 the resolves, instead of being intended, as they 
 were, solely to verify the decision of the Chair. 
 
 Mr. BUTLER, of Lowell. I wish to say a 
 word in regard to the settlement of this matter in 
 dispute ; and in doing so, I shall rely not so much 
 upon precedent, as upon principle and right. As 
 I understood the gentleman from Boston, (Mr. 
 Stevenson,) his argument was, that when a ques 
 tion is once announced as finally determined, 
 
 there can be no such thing as any farther verifica 
 tion of the same by yeas and nays, but that such 
 determination must forever remain as the decision 
 of the body. That is the ground of his appeal, 
 and of the argument which supported it. 
 
 Yeas and nays are simply a method of verifica 
 tion. Now, suppose by accident or design, that 
 a hundred men were crowded into these seats, as 
 was the case once in the French Assembly, who 
 did not belong here, that they stood up and were 
 counted by the monitors, and the final announce 
 ment of the vote had been made, when some gen 
 tleman should arise in his place and state that he 
 had reason to believe that the vote was incorrect, 
 and in order to verify the vote, and arrive at a 
 more satisfactory conclusion, he should demand 
 the yeas and nays. I want to know, if in such 
 a case as that, when such a demand is made, 
 that the yeas and nays would not be strictly in 
 order. Who is to say that it can be done in one 
 case, and cannot be done in another ? Therefore, 
 I am ready to sustain the decision of the Chair 
 upon that point, and shall also vote for the yeas and 
 nays which have been demanded. What are we 
 here for, but to arrive at the deliberate judgment 
 of this assembly ; to get at the feelings and wishes 
 of this body ? And I submit, if it is not a little like 
 child s play, that we are to be told because the 
 President has announced a vote after a division, 
 that there is no way of getting at the voice of this 
 Convention in a more certain manner ; that we 
 are to be tied hand and foot in our deliberations, 
 to be seized by a sort of snap- judgment from 
 which there is no escape. I ask is that according 
 to parliamentary principle and usage ? 
 
 The question was asked what is the deliberate 
 voice of this Convention upon a certain question ? 
 The vote was taken by a division ; a gentleman 
 having some doubt in regard to the result which 
 had been announced, desired to have the vote re 
 counted. It was accordingly done. Still it was 
 unsatisfactory, and the yeas and nays were de 
 manded for the purpose of verifying the vote with 
 greater accuracy. The yeas and nays were or 
 dered, and the gentleman from Boston appealed 
 from the decision of the Chair, and for what 
 reason ? Because, forsooth, the Convention had 
 voted once upon the question, and it was not in 
 order to verify that vote in another manner. 
 Upon questions of parliamentary usage, I have 
 many times yielded to him ; but on the present 
 occasion, I feel constrained to differ with him, and 
 shall therefore record my vote to sustain the 
 decision of the Chair, relying, as I said in the 
 beginning, more upon principle than precedent. 
 
 Mr. BRIGGS, of Pittsfield. I desire to say 
 but a single word upon this matter. I much re- 
 
69th day.] 
 
 QUESTION OF ORDER. 
 
 543 
 
 Thursday,] 
 
 BRIGGS DAVIS HALE WATERS. 
 
 [July 28th. 
 
 gret that a question of this character has arisen, 
 but since it has come before us, I trust that we 
 shall proceed to act upon and consider it with 
 deliberation and caution. But above all things, 
 in the last hours of the session, I hope we shall 
 not allow ourselves to be excited or irritated by 
 the introduction of such a subject As for my 
 self, I shall be compelled, from my construction 
 of the parliamentary law, to vote against the de 
 cision of the Chair. The President has stated 
 the true grounds on which the yeas and nays 
 were ordered that is, that they were for the pur 
 pose of making a record of the vote of every mem 
 ber of this Convention, upon one side or the 
 other, and not for the purpose of verification, as 
 some gentlemen have contended. If the Chair is 
 correct in this statement, the whole foundation of 
 the speech of the gentleman from Lowell is re 
 moved, but if not correct, his arguments would 
 certainly be very strong. 
 
 But let me inquire Avhat is the mode of verify 
 ing a vote ? The President rises, puts the ques 
 tion, takes the sound of the voice, and makes a 
 decision accordingly. The vote is doubted, and 
 the rule requires him to take a count. What is 
 the object of that? Simply for the purpose of 
 verifying the vote. The division of the House 
 takes place, and the Chair announces the result. 
 But what is the case here ? The result of the 
 first vote was questioned. A division was or 
 dered, and the monitors reported ; the Chair 
 announced that one hundred and twelve had 
 voted in the affirmative, and one hundred and 
 eighteen in the negative, so that the motion to 
 reconsider was lost. Some gentleman, not being 
 perfectly satisfied as to the correctness of that 
 vote, requested the President to reexamine his 
 figures ; he did so, and announced the same re 
 sult as before. After some little pause, the gen 
 tleman from Plymouth, (Mr. Davis,) arose, and 
 said, Mr. President, there is some mistake about 
 this matter. 
 
 Mr. DAVIS, of Plymouth. I arose and ad 
 dressed the Chair before the announcement of the 
 vote was made. 
 
 Mr. BRIGGS. Yes, Sir; he certainly did 
 address the Chair, but what did he say ? He said 
 that gentlemen here did not understand the vote, 
 and asked if the yeas and nays could not be 
 taken. But did he call for the yeas and nays 
 then ? or ask to have a record made ? No, Sir ; 
 but in the discussion as to what might be done, 
 the Chair suggested that the gentleman might 
 call for the yeas and nays ; and in accordance 
 with that suggestion, the yeas and nays, were de 
 manded. These, I believe, are the true facts of 
 the case. 
 
 Now, if the gentleman from Plymouth had 
 arisen in his seat before the Chair had made the. 
 second, affirmed statement, and had questioned 
 the vote, then, as the gentleman from Taunton 
 (Mr. Morton) says, it would have been the duty 
 of the Chair to have tried the vote again, if de 
 manded, by yeas and nays ; but he did neither. 
 The question stands, therefore, as I have stated. 
 As I said before, I am sorry to differ from the 
 Chair as to the congressional practice, but I under 
 stand the practice to be this : that any member 
 has a right to demand the yeas and nays at any 
 time before the result is announced by the Chair. 
 I am certainly desirous of acting liberally in this 
 matter, but I am equally desirous of observing 
 the law ; for the dignity, decorum, and character 
 of all bodies, depend entirely upon so doing. If 
 I supposed that, by allowing this matter to pass 
 by we should be acting in compliance with par 
 liamentary usage, I would, with pleasure, vote to 
 sustain the decision of the Chair ; but under the 
 present aspect of the case, I do not believe we 
 should be acting in accordance with that law, 
 and I shall therefore be compelled to give my 
 vote against him. 
 
 Mr. HALE, of Bridgewater. I do not propose 
 to discuss this question, after so much has been 
 said. As to precedent, I merely wish to observe 
 that in all the experience I have had, here or 
 elsewhere, in legislative bodies, I have never 
 known an instance where the demand for the 
 yeas and nays was made and sustained upon a 
 question after the decision of the Chair. I have 
 known them to be called for, but it was always 
 ruled by the Chair to be too late. 
 
 I do not understand that, in the present case, 
 the purpose of calling the yeas and nays was to 
 verify the vote, because the gentleman distinctly 
 stated that the object he had in view was to ac 
 commodate some gentlemen in his neighborhood, 
 who did not understand the question, and wished 
 to have the vote taken again. 
 
 Mr. WATERS, of Millbury. I call for the 
 previous question. 
 
 The PRESIDENT. By leave of the Conven 
 tion, the Chair desires to say to the gentleman 
 from Bridgewater, that there are many precedents 
 in the House of Representatives at Washington. 
 
 Mr. HALE. I merely referred to my own ex 
 perience and observation, and I believe that it is 
 the opinion of every ex-member of congress in 
 this body, that the yeas and nays would not be in 
 order after an announcement of a vote by the 
 Chair had been made. 
 
 The question being upon sustaining the de 
 cision of the Chair, the yeas and nays were taken, 
 with the following result yeas, 168 ; nays, 62. 
 
544 
 
 QUESTION OF ORDER. 
 
 [69th day. 
 
 Thursday,] 
 
 YEAS NAYS ABSENT. 
 
 [July 28th. 
 
 
 TEAS. 
 
 Richardson, Samuel H. 
 
 Turner, David P. 
 
 
 
 Ring, Elkanah, Jr. 
 
 Tyler, William 
 
 Abbott, Josiah GK 
 Adams, Benjamin P. 
 
 Freeman, James M. 
 French, Charles A. 
 
 Royce, James C. 
 Sanderson, Amasa 
 
 Wallace, Frederick, T. 
 Wallis, Freeland 
 
 Adams, Shubael P. 
 
 French, Rodney 
 
 Sanderson, Chester 
 
 Walker, Amasa 
 
 Allen, James B. 
 
 French, Samuel 
 
 Sherril, John 
 
 Ward, Andrew H. 
 
 Allen, Joel C. 
 
 Frothingham, R., Jr. 
 
 Sikes, Chester 
 
 Warner, Samuel, Jr. 
 
 Allen, Parsons 
 
 Gale, Luther 
 
 Simmons, Perez 
 
 Waters, Asa H. 
 
 Alley, John B. 
 
 Gates, Elbridge 
 
 Simonds, John W. 
 
 Weston, Gershom B. 
 
 Allis, Josiah 
 Alvord, D. W. 
 Austin, George 
 
 Gilbert, Washington 
 Giles, Charles G. 
 Giles, Joel 
 
 Sprague, Melzar 
 Spooner, Samuel W. 
 Stevens, Granville 
 
 White, George 
 Whitney, James S. 
 Williams, J. B. 
 
 Baker, Hillel 
 
 Green, Jabez 
 
 Stevens, "William 
 
 "Wilson Henry 
 
 Ball, George S. 
 
 Greene, William B. 
 
 Strong, Alfred L. 
 
 "\Vinslow, Levi M. 
 
 Bancroft, Alpheus 
 Bates, Moses, Jr. 
 Bennett, William, Jr. 
 Bennett, Zephaiiiah. 
 Bird, Francis W. 
 
 Griswold, Josiah W. 
 Griswold, Whiting 
 Hapgood, Lyman W. 
 Harmon, Phineas 
 Haskins, William 
 
 Sumner, Increase 
 Swain, Alanson 
 Thompson, Charles 
 Tilton, Horatio W. 
 
 Wood, Charles C. 
 Wood, Otis 
 Wood, William H. 
 Wright, Ezekiel 
 
 Booth, William S. 
 
 Hawkes, Stephen E. 
 
 N.A v<:! - 
 
 Bout well, George S. 
 
 Heath, Ezra, 2d 
 
 
 
 Bout well, Sewell 
 
 Howes, James 
 
 Aldrich, P. Emory 
 
 Jenkins, John 
 
 Breed, Hiram N. 
 
 Hobart, Henry 
 
 Andrews, Robert 
 
 Kellogg, Giles C. 
 
 Brown, Adolphus F. 
 Brown, Hammond 
 
 Hood, George 
 Howard, Martin 
 
 Aspinwall, William 
 Ayres, Samuel 
 
 Kinsman, Henry W. 
 Knowlton, J. S.* C. 
 
 Brown, Hiram C. 
 
 Howland, Abraham H. 
 
 Bartlett, Russel 
 
 Lincoln, Frederic W., Jr. 
 
 Brownell, Frederick 
 Brownell, Joseph 
 Bryant, Patrick 
 Bullock, Rufus 
 Bumpus, Cephas C. 
 Burlingame, Anson 
 Butler, Benjamin F. 
 
 Hoyt, Henry K. 
 Hunt, Charles E. 
 Huntington, George H. 
 Hyde, Benjamin D. 
 Ide, Abijah M., Jr. 
 Jacobs, John 
 Kendall, Isaac 
 
 Bartlett, Sidney 
 Bradbury, Ebenezer 
 Brewster, Osymn 
 Brinley, Francis 
 Briggs, George N. 
 Cogswell, Nathaniel 
 Conkey, Ithamar 
 
 Livermore, Isaac 
 Lord, Otis P. 
 Lothrop, Samuel K. 
 Loud, Samuel P. 
 Marvin, Theophilus R. 
 Miller, Seth, Jr. 
 Mixter, Samuel 
 
 Cady, Henry 
 Caruthers, William 
 
 Kingman, Joseph 
 Knight, Hiram 
 
 Curtis, Wilber 
 Dawes, Henry L. 
 
 Morey, George 
 Oliver, Henry K. 
 
 Case, Isaac 
 
 Knowlton, Charles L. 
 
 Ely, Homer 
 
 Orcutt, Nathan 
 
 Chapin, Chester W. 
 Childs, Josiah 
 
 Knowlton, William H. 
 Knox, Albert 
 
 Gardner, Henry J. 
 Gilbert, Wanton C. 
 
 Paige, James "W. 
 Parker, Samuel D. 
 
 Churchill, J. McKeaii 
 
 Langdon, Wilber C. 
 
 Goulding, Jason 
 
 Plunkett, William C. 
 
 Clarke, Alpheus B. 
 Cleverly, William 
 Cole, Sumner 
 
 Lawton, Job G., Jr. 
 Little, Otis 
 Loomis, E. Justin 
 
 Gray, John C. 
 Hale, Artemas 
 Hale, Nathan 
 
 Preston, Jonathan 
 Rockwell, Julius 
 Schouler, William 
 
 Cooledge, Henry F. 
 Crittenden, Simeon 
 
 Marvin, Abijah P. 
 Mason, Charles 
 
 Hallett, B. F. 
 Hapgood, Seth 
 
 Stevenson, J. Thomas 
 Stiles, Gideon 
 
 Cross, Joseph W. 
 Dana, liichard H., Jr. 
 
 Merritt, Simeon 
 Monroe, James L. 
 
 Heard, Charles 
 Henry, Samuel 
 
 Train, C. R. 
 Upham, Charles W. 
 
 Davis, Charles G. 
 Davis, Robert T. 
 
 Morton, Elbridge G. 
 Morton, Marcus 
 
 Hillard, George S. 
 Houghton, Samuel 
 
 Upton, George B. 
 Walcott, Samuel B. 
 
 Dean, Silas 
 
 Morton, Marcus, Jr. 
 
 Hubbard, William J. 
 
 Weeks, Cyrus 
 
 Deming, Elijah S. 
 
 Morton, William S. 
 
 Hunt, William 
 
 Wilkinson, Ezra 
 
 Denton, Augustus 
 Duncan, Samuel 
 
 Nash, Hiram 
 Nayson, Jonathan 
 
 Huntington, Asahel 
 Hurlburt, Samuel A. 
 
 Wilson, Milo 
 Woods, Josiah B. 
 
 Dunham, B radish 
 
 Nichols, William 
 
 
 
 Durgin, John M. 
 
 Nute, Andrew T. 
 
 ABSENT. 
 
 Eames, Philip 
 
 Osgood, Charles 
 
 Abbott, Alfred A. 
 
 Bigelow, Jacob 
 
 Earle, John M. 
 
 Packer, E. Wing 
 
 Allen, Charles 
 
 Bishop, Henry W. 
 
 Easland, Peter 
 
 Paine, Benjamin 
 
 Appleton, William 
 
 Blagden, George W. 
 
 Easton, James, 2d 
 
 Parker, Adolphus G. 
 
 Atwood, David C. 
 
 Bliss, Gad O. 
 
 Eaton, Calvin D. 
 
 Parris, Jonathan 
 
 Ballard, Alvah 
 
 Bliss, William C. 
 
 Edwards, Elisha 
 
 Partridge, John 
 
 Banks, Nathaniel P., Jr. 
 
 Bradford, William J. A. 
 
 Edwards, Samuel 
 
 Permiman, John 
 
 Barrows, Joseph 
 
 Braman, Milton P. 
 
 Ely, Joseph M. 
 
 Perkins, Daniel A. 
 
 Barrett, Marcus 
 
 Bronson, Asa 
 
 Fay, Sullivan 
 
 Phelps, Charles 
 
 Bates, Eliakim A. 
 
 Brown, Alpheus R. 
 
 Fellows, James K. 
 
 Phinney, Silvanus B. 
 
 Beach, Erasmus D. 
 
 Brown, Artemas 
 
 Fisk, Lyman 
 
 Pierce, Henry 
 
 Beal, John 
 
 Buck, Asahel 
 
 Foster, Aaron 
 
 Pomroy, Jeremiah 
 
 Beebe, James M. 
 
 Bullen, Amos II. 
 
 Foster, Abram 
 
 Rawson, Silas 
 
 Bell, Luther V. 
 
 Carter, Timothy W. 
 
 Fowle, Samuel 
 
 Richards,- Luther 
 
 Bigelow, Edward B. 
 
 Chandler, Amariah 
 
69th day.] 
 
 ELECTIONS BY PLURALITY, &c. 
 
 545 
 
 Thursday,] 
 
 ABSENT FRENCH. 
 
 [July 28th. 
 
 Chapin, Daniel E. 
 Chapin, Henry 
 Choate, Rufus 
 Clark, Henry 
 Clark, Ransom 
 Clark, Salah 
 Clarke, Stillman 
 Coggin, Jacob 
 Cole, Lansing J. 
 Cook, Charles E. 
 Copeland, Benjamin F. 
 Crane, George B. 
 Creasy, Oliver S. 
 Crockett, George W. 
 Crosby, Leander 
 Crowell, Seth 
 Crowninshield, F. B. 
 Cummings, Joseph 
 Cushman, Henry W. 
 Cushman, Thomas 
 Cutler, Simeon N. 
 Davis, Ebenezer 
 Davis, Isaac 
 Davis, John 
 Davis, Solomon 
 Day, Gilman 
 Dehon, William 
 Denison, Hiram S. 
 DeWitt, Alexander 
 Doane, James C. 
 Dorman, Moses 
 Eaton, Lilley 
 Eustis, William T. 
 Far well, A. G. 
 Fiske, Emery 
 Fitch, Ezekiel W. 
 Fowler, Samuel P. 
 French, Charles H. 
 Gardner, Johnson 
 Gooch, Daniel W. 
 Gooding, Leonard 
 Gculd, Robert 
 Goulding, Dalton 
 Graves, John W. 
 Greenleaf, Simon 
 Hadley, Samuel P. 
 Hall, Charles B. 
 Hammond, A. B. 
 Haskell, George 
 Hathaway, Elnathan P, 
 Hayden, Isaac 
 Hayward, George 
 Hazewell, C. C. 
 Hersey, Henry 
 Hewes, William H. 
 Hey wood, Levi 
 Hinsdale, William 
 Hobart, Aaron 
 Hobbs, Edwin 
 Holder, Nathaniel 
 Hooper, Foster 
 Hopkinson, Thomas 
 Huntington, Charles P. 
 Hurlbut, Moses C. 
 Jackson, Samuel 
 James, William 
 Jenks, Samuel H. 
 Johnson, John 
 
 Kellogg, Martin R. 
 Keyes, Edward L. 
 Kimball, Joseph 
 Knight, Jefferson 
 Knight, Joseph 
 Kuhn, George H. 
 Ladd, Gardner P. 
 Ladd, John S. 
 Lawrence, Luther 
 Leland, Alden 
 Lincoln, Abishai 
 Littlefield, Tristram 
 Lowell, John A. 
 Marble, William P. 
 Marcy, Laban 
 Meader, Reuben 
 Moore, James M. 
 Morss, Joseph B. 
 Newman, Charles 
 Norton, Alfred 
 Noyes, Daniel 
 Ober, Joseph E. 
 Orne, Benjamin S. 
 Paine, Henry 
 Park, John G. 
 Parker, Joel 
 Parsons, Samuel C. 
 Parsons, Thomas A. 
 Payson, Thomas E. 
 Peabody, George 
 Peabody, Nathaniel 
 Pease, Jeremiah, Jr. 
 Perkins, Jesse 
 Perkins, Jonathan C. 
 Perkins, Noah C. 
 Pool, James M. 
 Powers, Peter 
 Prince, F. O. 
 Putnam, George 
 Putnam, John A. 
 Rantoul, Robert 
 Read, James 
 Reed, Sampson 
 Rice, David 
 Richardson, Daniel 
 Richardson, Nathan 
 Rockwood, Joseph M. 
 Rogers, John 
 Ross, David S. 
 Sampson, George R. 
 Sargent, John 
 Sheldon, Luther 
 Sherman, Charles 
 Sleeper, John S. 
 Smith, Matthew 
 Souther, John 
 Stacy, Eben H. 
 Stetson, Caleb 
 Stevens, Charles G. 
 Stevens, Joseph L., Jr. 
 Storrow, Charles S. 
 Stutson, William 
 Sunnier, Charles 
 Taber, Isaac C. 
 Taft, Arnold 
 Talbot, Thomas 
 Taylor, Ralph 
 Thayer, Joseph 
 
 37 3 
 
 Thayer, Willard, 2d 
 Thomas, John W. 
 Tileston, Edmund P. 
 Tilton, Abraham 
 Tower, Ephraim 
 Turner, David 
 Tyler, John S. 
 Underwood, Orison 
 Viles, Joel 
 Yinton, George A. 
 Wales, Bradford L. 
 Walker, Samuel 
 Warner, Marshal 
 
 Wetmore, Thomas 
 Wheeler, William F. 
 White, Benjamin 
 Whitney, Daniel S. 
 Wilbur, Daniel 
 Wilbur, Joseph 
 Wilder, Joel 
 Wilkins, John H. 
 Williams, Henry 
 Wilson, Willard 
 Winn, Jonathan B. 
 Wood, Nathaniel 
 
 Absent, and not voting, 189. 
 
 So the decision of the Chair was sustained. 
 
 Elections by Plurality. 
 
 The question recurred on the motion to recon- 
 sider the vote on the subject of elections by plu 
 rality, upon which the yeas and nays had been 
 ordered. 
 
 Mr. FRENCH, of New Bedford, moved to re 
 consider the vote by which the yeas and nays 
 were ordered. 
 
 The motion was agreed to, and the question 
 being taken, the demand for the yeas and nays 
 was not sustained. 
 
 The question then being taken on the motion 
 to reconsider the vote on the subject of elections 
 by plurality, it was upon a division ayes, 138 ; 
 noes, 49 decided in the affirmative. 
 
 So the motion to reconsider, was agreed to. 
 
 The question being on the final passage of the 
 resolves on the subject of elections by plurality,, 
 they were read, as follows : 
 
 1. Resolved, That it is expedient to provide in 
 the Constitution, that a majority of all the votes 
 given, shall be necessary to the election of a Gov 
 ernor, Lieutenant- Governor, Secretary, Treasurer, 
 Auditor, and Attorney- General of the Common 
 wealth : provided, that if at any election of either 
 of the above named officers, no person shall have 
 a majority of the votes given, the House of Rep 
 resentatives shall, by a majority of viva voce 
 votes, elect two out of three persons who had the 
 highest, if so many shall have been voted for, 
 and return the persons so elected to the Senate, 
 from which the Senate shall, by viva voce vote, 
 elect one who shall be Governor. 
 
 2. Resolved, That in all elections of Senators 
 and Councillors, the person having the highest 
 number of votes, shall be elected. 
 
 3. Resolved, That it is expedient so to amend 
 the Constitution, as to provide that a majority of 
 the votes shall be necessary for the election of 
 Representatives to the General Court, until other 
 wise provided by law. 
 
 4. Resolved, That in the election of all city and 
 town officers, the same rule shall govern as in 
 case of Representatives to the General Court. 
 
 5. Resolved, That in the election of all county 
 
546 
 
 ELECTIONS BY PLURALITY. 
 
 [69th day. 
 
 Thursday,] 
 
 BIRD. 
 
 [July 28th. 
 
 and district officers, the person having the highest 
 number of votes shall he elected. 
 
 6. Resolved, That in all elections where the person 
 having the highest number of votes may be elect 
 ed, and there is a failure of election because two 
 persons have an equal number of votes, subse 
 quent trials may be had at such times as may be 
 prescribed by the legislature. 
 
 Mr. BIRD, of Walpole. I regret, exceedingly, 
 that I have been the cause of so much uneasiness 
 for the last hour, but as the matter has been 
 finally settled, I desire to submit a few amend 
 ments. I move to amend the first resolve by in 
 serting after the word " Commonwealth," in the 
 fourth line, the words " until otherwise provided 
 by law." If this amendment is adopted, I propose 
 to submit the following as a new resolve, to be 
 inserted after the third resolve : 
 
 Resolved, That any law providing that the Gov 
 ernor, Lieutenant- Governor, Secretary, Treasurer, 
 Auditor, Attorney- General, and Representatives to 
 the General Court, or either of them, shall be elect 
 ed by plurality instead of majority, shall not take 
 effect until one year after its passage. 
 
 I also propose to add the following in place of 
 the fourth resolve : 
 
 Resolved, That in the election of city and town 
 officers, such rules shall govern as the legislature 
 may prescribe. 
 
 It will be seen that the effect of the first amend 
 ment which I propose, will be to give to the legis 
 lature the power to prescribe that the plurality 
 shall elect the six State officers, instead of the 
 majority. The first resolve now provides that a 
 majority of the votes given shall be necessary to 
 the election of these six State officers. If this 
 amendment is adopted, the legislature will have 
 the power to provide for their election by plural 
 ity, but the fourth resolve provides that any such 
 change by the legislature, shall not go into opera 
 tion until one year after its passage. That is, if 
 the legislature pass a plurality law, an opportunity 
 shall be given to the people to revise the proceed 
 ings of that legislature by the election of another 
 body, who shall meet and act upon the matter. 
 If they please to repeal the proceedings of the 
 preceding legislature, they can do so, but if not, 
 the law stands ratified. One great object of this 
 change was to provide something which should 
 look, and be, in reality, more uniform, and which 
 would give something more of symmetry to the 
 system than it at present possesses. As a friend 
 of the majority rule, I feel that I can now retain 
 that rule as applied to the election of the six State 
 officers named in the resolution, until a majority 
 of the people of the Commonwealth, through their 
 
 representatives, express the desire that it shall be 
 changed ; but at the sarre time, provision is made 
 that such a change shall not take effect until one 
 year afterwards. The object of this is merely to 
 prevent an accidental majority from passing this 
 law, and also to prevent the trickery of politicians, 
 who may desire to subserve their own particular 
 and selfish ends. There is a slight change, also, 
 in the third resolve, to which I have proposed an 
 amendment. As the resolve now stands, repre 
 sentatives are to be chosen by majority until 
 otherwise provided by law. The only change 
 this amendment will make is, that this provision 
 will not go into operation until a year after its 
 passage. 
 
 The next proposition is to strike out the 
 fourth resolve. I can see no reason why the 
 election of town officers should be the same 
 as the election of State officers, and I have 
 therefore proposed to substitute a provision that 
 the election of those officers shall take place in 
 such manner as the legislature shall provide. 
 I take it there can be no objection to such a pro 
 vision, for it is evident that if the people desire to 
 have a different law, they may, through their rep 
 resentatives, obtain one. So far as my acquaint 
 ance extends, however, there is no practical diffi 
 culty in the election of town officers at the present 
 time, and I think none need be anticipated. 
 
 It is unnecessary to argue these points to any 
 great extent, for they are plain, intelligible, and 
 will be easily understood. We of the majority 
 would prefer to retain that rule in the Constitu 
 tion, without leaving it to the power of the legis 
 lature to change it ; but, for one, I am entirely 
 willing to submit this matter to the people. If 
 they are desirous of making this change, let them 
 have it; and we shall have an opportunity of 
 changing it, if necessary, at the succeeding legis 
 lature. At any rate, by adopting such a provis 
 ion, we shall be preventing any hasty action on 
 the part of legislative bodies. 
 
 I trust that those who have acted with, me in this 
 matter, and who are in favor of the majority prin 
 ciple, will look at these propositions carefully be 
 fore they vote against them. I am aware that it is 
 said we are yielding too much to plurality, but it 
 strikes me that this is not the case, strictly speak 
 ing. We yield to the will of the people and to 
 that alone, and if they demand the plurality let 
 them have it. No one will deny that the tendency 
 is towards the adoption of the plurality rule in ail 
 elections, and let us have an opportunity to try it 
 first in the election of county and district officers. 
 If we find that it works well in this instance, if 
 we find that the interests of the community will 
 be promoted by the change, we can make the 
 
69th day.] 
 
 ELECTIONS BY PLURALITY. 
 
 547 
 
 Thursday,] 
 
 TRAIN ALVORD GARDNER WILSON LORD GRAY. 
 
 [July 28th. 
 
 change, and apply the rule to the election of other 
 and more important officers. But if, on the con 
 trary, we do not like its operation, we can come 
 back to our present system and retain this. 
 
 Mr. TRAIN, of Framingham. I move to 
 amend the amendment to the first resolve, by 
 striking out, in the second line, the words " ma 
 jority of votes given;" also to strike out the 
 amendment of the gentleman from Walpole, (Mr. 
 Bird,) and add after the word " Commonwealth," 
 the words " and the person having the highest 
 number of votes shall be duly declared to be elect 
 ed." 
 
 The PRESIDENT. It is not competent, at 
 this stage of business, to submit such an amend 
 ment, as it is in the nature of a substitute to the 
 amendment proposed by the gentleman from 
 Walpole, (Mr. Bird). 
 
 Mr. ALVORD, for Montague, called for the 
 previous question. 
 
 Mr. GARDNER, of Boston. I trust that the 
 gentleman for Montague does not intend to 
 force us to a vote, by making such a demand. 
 
 Mr. ALVORD. I will withdraw my motion, 
 if the Convention will agree to take the vote 
 upon this question at a quarter before eight 
 o clock. 
 
 Mr. GARDNER. I really hope that the gen 
 tleman will not force the main question at this 
 time. Here is a new proposition made to us, un 
 der the color of an amendment, at the very last 
 stage of this question, a question of grave im 
 portance, and of great consequence to every por 
 tion of the State, and to every individual in it. 
 We have spent some three or four hours in the 
 discussion of preliminary questions, and now the 
 amendment of the gentleman from Walpole is 
 introduced. Hardly has it been stated to the 
 Convention, when the gentleman for Montague 
 rises and moves the previous question, before one 
 word can be said by any member of the House 
 except the gentleman who introduced these im 
 portant propositions. I believe that if the pre 
 vious question is ordered now, it will result in 
 the loss of much valuable time to this Conven 
 tion. There are gentlemen here, who desire to 
 express their views upon this subject, and I hope 
 that no attempt to gag them, or shut them off in 
 this manner, will be sustained. Gentlemen have 
 met here to discuss the propriety of making pro 
 visions which may probably be a part of the 
 organic law of the Commonwealth for the next 
 twenty years ; they are sent into this assembly for 
 the sacred, solemn purpose, of providing an, or 
 ganic law for this State, and I submit whether 
 they ought to be debarred from the privilege of 
 considering and debating such questions as may 
 
 come before them ? I do not believe that the ma 
 jority of this Convention will sanction such a 
 step, and, unless the gentleman withdraws his 
 motion, I shall be compelled to call for the yeas 
 and nays. 
 
 The question being taken on ordering the yeas 
 and nays, it was, upon a division ayes, 44 ; 
 noes, 94 one-fifth voting in favor, decided in the 
 affirmative. 
 
 So the yeas and nays were ordered. 
 
 Mr. WILSON, of Natick. I would suggest 
 to my friend for Montague, that it would be 
 better to withdraw his motion, so that we can 
 move to lay the subject upon the table for the 
 present. We have agreed not to adjourn until 
 eight o clock, and I think we can dispose of the 
 subject this evening. 
 
 Mr. LORD, of Salem. I understand that the 
 President of the Convention has ruled, that after 
 the yeas and nays have been ordered upon the 
 previous question, tho motion cannot be with 
 drawn but by universal consent. 
 
 The PRESIDENT. The Chair has made 110 
 such decision within his recollection. 
 
 Mr. LOUD. I am aware it was not the deci 
 sion of the present occupant of the Chair. 
 
 Mr. GRAY, of Boston. I believe that such a 
 decision was made by the President pro tempore, 
 the other day. 
 
 The PRESIDENT. The Chair is of the opin 
 ion, that the ordering of the yeas and nays would 
 not preclude the withdrawal of such a motion. 
 
 Mr. LORD. I supposed that such was the 
 case, although it was differently ruled by the gen 
 tleman who occupied the Chair of the Conven 
 tion the other day. Now, Sir, I do not want the 
 motion for the previous question withdrawn, for 
 the purpose of laying the orders upon the table, 
 for the purpose of rescinding a vote, for the pur 
 pose of having an evening session, to crowd 
 through this resolution which nobody knows any 
 thing about. But I think we had better adjourn 
 until to-morrow morning, and, in the meantime, 
 have the amendments printed, so that we may 
 know what they are. We are acting upon a 
 fundamental law, with which, perhaps, a few gen 
 tlemen may be fully acquainted ; but it is quite 
 important that the Convention should be, also, 
 fully acquainted with it. It is important, too, 
 that a proposition of the character of this, should 
 not be forced through in a single night, because 
 I do not think it would be right to adopt a prin 
 ciple in our Constitution, contrary to the recorded 
 judgment of this Convention. It is for this rea 
 son that I am opposed to going on with the con 
 sideration of this subject at the present time. We 
 do not, all of us, know what is the amendment 
 
548 ELECTIONS BY PLURALITY. 
 
 [69th day. 
 
 Thursday,] LORD YEAS NAYS. 
 
 [July 28th. 
 
 which has been proposed, and some gentlemen Bancroft, Alpheus 
 
 Hurlburt, Samuel A. 
 
 have not even heard it read. If we adjourn, 
 
 Bates, Moses, Jr. 
 
 Ide, Abijah M., Jr. 
 
 there are two desirable objects which would be 
 attained. In the first place, the Secretary will 
 
 Beal, John 
 Bennett, William, Jr. 
 Bird, Francis W. 
 
 Kendall, Isaac 
 Kingman, Joseph 
 Knowlton, J. S. C. 
 
 have the amendments printed, so that we can 
 
 Booth, William S. 
 
 Knowlton, William H. 
 
 know where we stand upon this matter, and be 
 
 Boutwell, George S. 
 
 Knox, Albert 
 
 ready to vote upon it in the morning. In the 
 
 Bout well, Sewell 
 
 Ladd, Gardner P. 
 
 next place, if we call the yeas and nays now 
 
 Breed, Hiram N. 
 
 Langdon, Wilber C. 
 
 upon ordering the previous question, they cannot 
 be taken before eight o clock, when the time will 
 
 Brown, Adolphus F. 
 Brown, Hammond 
 Brown, Hiram C. 
 
 Little, Otis 
 Loomis, E. Justin 
 Marcy, Laban 
 
 have arrived when this Convention must adjourn. 
 
 Brownell, Joseph 
 
 Marvin, Abijah P. 
 
 Now, Sir, in order to accomplish both of these 
 
 Bryant, Patrick 
 
 Mason, Charles 
 
 desirable results, and get rid of the previous ques 
 
 Bumpus, Cephas C. 
 
 Merritt, Simeon 
 
 tion, I move that the Convention do now adjourn. 
 The question was taken, and, upon a division 
 
 Burlingame, Alison 
 Butler, Benjamin F. 
 Cady, Henry 
 
 Monroe, James L. 
 Morton, Elbridge G. 
 Morton, Marcus 
 
 ayes, 56 ; noes, 103 the motion was not 
 
 Caruthers, William 
 
 Morton, Marcus, Jr. 
 
 agreed to. 
 
 Case, Isaac 
 
 Morton, William S. 
 
 Mr. LORD demanded the yeas and nays. 
 
 Chapin, Chester W. 
 
 Nash, Hiram 
 
 A division being called for on the motion, there 
 
 Churchill, J. McKean 
 
 Nute, Andrew T. 
 
 were ayes, 38 ; noes, 109 one-fifth voting in 
 the affirmative. 
 
 Clarke, Alpheus B. 
 Clark, Ransom 
 Cole, Sumner 
 
 Ober, Joseph E. 
 Osgood, Charles 
 Packer, E. Wing 
 
 So the yeas and nays were ordered. 
 
 Cushman, Thomas 
 
 Parris, Jonathan 
 
 The question recurred on the motion of the 
 
 Dana, Richard H., Jr. 
 
 Partridge, John 
 
 gentleman from Salem, to adjourn, and being 
 taken by yeas and nays, it was decided in the 
 negative yeas, 56 ; nays, 144 as follows : 
 
 Davis, Charles G. 
 Davis, Robert T. 
 Day, Gilman 
 Dean, Silas 
 
 Penniman, John 
 Phelps, Charles 
 Phinney, Sylvanus B. 
 Pierce, Henry 
 
 
 Deining, Elijah S. 
 
 Rawson, Silas 
 
 YEAS. 
 
 Denton, Augustus 
 
 Rice, David 
 
 Adams, Benjamin P. Hinsdale, "William 
 
 Earle, John M. 
 
 Richards, Luther 
 
 Aldrich, P. Emory Houghton, Samuel 
 
 Easland, Peter 
 
 Richardson, Daniel 
 
 Andrews, Robert Hubbard, William J. 
 
 Easton, James, 2d 
 
 Richardson, Samuel H. 
 
 Aspinwall, William Hunt, William 
 
 Eaton, Calvin D. 
 
 Rock wood, Joseph M. 
 
 Barrows, Joseph James, William 
 
 Edwards, Samuel 
 
 Ross, David S. 
 
 Bell, Luther Y. Jenkins, John 
 
 Ely, Joseph M. 
 
 Royce, James C. 
 
 Bliss, Gad O. Kellogg, Giles C. 
 
 Fay, Sullivan 
 
 Sanderson, Amasa 
 
 Bradbury, Ebenezcr Lincoln, Fred. W., Jr. 
 
 Fellows, James K. 
 
 Schouler, William 
 
 Brinley, Francis Livermore, Isaac 
 
 Fisk, Lyman 
 
 Sikes, Chester 
 
 Buck, Asahel Lord, Otis P. 
 
 Freeman, James M. 
 
 Simmons, Perez 
 
 Cogswell, Nathaniel Marvin, Theophilus R. 
 
 French, Charles A. 
 
 Simonds, John W. 
 
 Conkey, Ithamar Miller, Seth, Jr. 
 
 French, Rodney 
 
 Sprague, Melzar 
 
 Crittenden, Simeon Morey, George 
 
 Gale, Luther 
 
 Spooner, Samuel W. 
 
 Crosby, Leander Noyes, Daniel 
 
 Gardner, Johnson 
 
 Stevens, Charles G. 
 
 Crowell, Seth Oliver, Henry K. 
 
 Gates, Elbridge 
 
 Stevens, Granville 
 
 Davis, Solomon Orcutt, Nathan 
 
 Gilbert, Washington 
 
 Strong, Alfred L. 
 
 Dawes, Henry L. Parker, Samuel D. 
 
 Giles, Charles G. 
 
 Sumner, Charles 
 
 Dennison, Hiram S. Perkins, Daniel A. 
 
 Green, Jabez 
 
 Swain, Alanson 
 
 Edwards, Elisha Plunkett, William C. 
 
 Greene, William B. 
 
 Thayer, Joseph 
 
 Eustis, William T. Sherril, John 
 
 Griswold, Josiah W. 
 
 Tilton, Horatio W. 
 
 Gardner, Henry J. Stevenson, J. Thomas 
 
 Griswold, Whiting 
 
 Turner, David 
 
 Gilbert, Wanton C. Thompson, Charles 
 
 Hallett, B. F. 
 
 Turner, David P. 
 
 Goulding, Jason Train, Charles R. 
 
 Hammond, A. B. 
 
 Tyler, William 
 
 Gray, John C. Weeks, Cyrus 
 
 Hapgood, Lyman W. 
 
 Upton, George B. 
 
 Hale, Artemas White, Benjamin 
 
 Hapgood, Seth 
 
 Wallace, Frederick T. 
 
 Hale, Nathan Wilder, Joel 
 
 Hathaway, Elnathan P. 
 
 Wallis, Freeland 
 
 Harmon, Phineas Wilkinson, Ezra 
 
 Heath, Ezra, 2d 
 
 Ward, Andrew II. 
 
 Hillard, George S. Wilson, Milo 
 
 Hewes, James 
 
 Warner, Samuel, Jr. 
 
 
 Heywood, Levi 
 
 Waters, Asa H. 
 
 NAYS. 
 
 Hobart, Henry 
 
 Weston, Gershom B. 
 
 
 Hood, George 
 
 Whitney, James S. 
 
 Adams, Shubael P. Alvord, D. W. 
 
 Howard, Martin 
 
 Williams, Henry 
 
 Allen, James B. Austin, George 
 
 Howland, Abraham H. 
 
 Wood, Charles C. 
 
 Allen, Parsons Baker, Hillel 
 
 Hoyt, Henry K. 
 
 Wood, Otis 
 
 Allis, Josiah Ball, George S. 
 
 Huntington, George H. 
 
 Wood, William H. 
 
69th day.] 
 
 ELECTIONS BY PLURALITY. 549 
 
 Thursday,] 
 
 ABSENT STEVENSON. [July 28th. 
 
 
 ABSENT. 
 
 Mixter, Samuel Souther, John 
 
 Abbott, Alfred A. 
 Abbott, Josiah G. 
 Allen, Charles 
 Allen, Joel C. 
 Alley, John B. 
 Appleton, William 
 Atwood, David C. 
 Ayres, Samuel 
 Ballard, Alvah 
 Banks, Nathaniel P., 
 Bartlett, Russel 
 Bartlett, Sidney 
 Barrett, Marcus 
 Bates, Eliakim A. 
 Beach, Erasmus D. 
 Beebe, James M. 
 Bennett, Zephaniah 
 Bigelow, Edward B. 
 Bigelow, Jacob 
 Bishop, Henry W. 
 Blagden, George W. 
 Bliss, William C. 
 Bradford, William J. 
 Braman, Milton P. 
 Brewster, Osmyn 
 Briggs, George N. 
 Bronson, Asa 
 Brown, Alpheus R. 
 Brown, Artemas 
 Brownell, Frederick 
 Bullen, Amos H. 
 Bullock, Rufus 
 Carter, Timothy W. 
 Chandler, Amariah 
 Chapin, Daniel E. 
 Chapin, Henry 
 Childs, Josiah 
 Choate, Rufus 
 Clark, Henry 
 Clark, Salah 
 Clarke, Still man 
 Cleverly, William 
 Coggin, Jacob 
 
 Eames, Philip 
 Eaton, Lilley 
 Ely, Homer 
 Farwell, A. G. 
 Fiske, Emery 
 Fitch, Ezekiel W. 
 Foster, Aaron 
 Foster, Abram 
 Fowle, Samuel 
 Jr. Fowler, Samuel P. 
 French, Charles H. 
 French, Samuel 
 Frothirgham, R d, Jr. 
 Giles, Joel 
 Gooch, Daniel W. 
 Gooding, Leonard 
 Gould, Robert 
 Goulding, Dalton 
 Graves, John W. 
 Greenleaf, Simon 
 Hadley, Samuel P. 
 Hall, Charles B. 
 A. Haskell, George 
 Haskins, William 
 Hawkes, Stephen E. 
 Hayden, Isaac 
 Hayward, George 
 Hazewell, Charles C. 
 Heard, Charles 
 Henry, Samuel 
 Hersey, Henrv 
 Hewes, William H. 
 Hobart, Aaron 
 Hobbs, Edwin 
 Holder, Nathaniel 
 Hooper, Foster 
 Hopkinson, Thomas 
 Hunt, Charles E. 
 Huntington, Asahel 
 Huntington, Charles P. 
 Hurlbut, Moses C. 
 Hyde, Benjamin D. 
 Jackson, Samuel 
 
 Moore, James M. Stacy, Eben II. 
 Morss, Joseph B. Stetson, Caleb 
 Nayson, Jonathan Stevens, Joseph L., Jr. 
 Newman, Charles Stevens, William 
 Nichols, William Stiles, Gideon 
 Norton, Alfred Storrow, Charles S. 
 Orne, Benjamin S. Stutson, William 
 Paige, James W. Sumner, Increase 
 Paine, Benjamin Taber, Isaac C. 
 Paine, Henry Taft, Arnold 
 Park, John G. Talbot, Thomas 
 Parker, Adolphus G. Taylor, Ralph 
 Parker, Joel Thayer, Willard, 2d 
 Parsons, Samuel C. Thomas, John W. 
 Parsons, Thomas A. Tileston, Edmund P. 
 Payson, Thomas E. Tilton, Abraham 
 Peabcdy, George Tower, Ephraim 
 Peabody, Nathaniel Tyler, John S. 
 Pease, Jeremiah, Jr. Underwood, Orison 
 Perkins, Jesse Upham, Charles W. 
 Perkins, Jonathan C. Viles, Joel 
 Perkins, Noah C. Vinton, George A. 
 Pomroy, Jeremian Walcott, Samuel B. 
 Pool, James M. Wales, Bradford L. 
 Powers, Peter Walker, Amasa 
 Preston, Jonathan Walker, Samuel 
 Prince, F. O. Warner, Marshal 
 Putnam, George Wetmore, Thomas 
 Putnam, John A. Wheeler, William F. 
 Rantoul, Robert White, George 
 Read, James Whitney, Daniel S. 
 Reed, Sampson Wilbur, Daniel 
 Richardson, Nathan Wilbur, Joseph 
 Ring, Elkanah, Jr. Wilkius, John H. 
 Rockwell, Julius Williams, J. B. 
 Rogers, John Wilson, Henry 
 Sampson, George R. Wilson, Willard 
 Sanderson, Chester Winn, Jonathan B. 
 Sargent, John Winslow, Levi M. 
 Sheldon, Luther Wood, Nathaniel 
 Sherman, Charles Woods, Josiah B. 
 Sleeper, John S. Wright, Ezekiel 
 Smith, Matthew 
 
 Cole, Lansing J. 
 
 Jacobs, John 
 
 Absent and not voting, 219. 
 
 Cook, Charles E. 
 
 Jenks, Samuel H. 
 
 
 Cooledge, Henry F. 
 
 Johnson, John 
 
 So the Convention refused to adjourn. 
 
 Copelaiid, Benjamin 
 
 F. Kellogg, Martin R. 
 
 The PRESIDENT. The question is upon or 
 
 Crane, George B. 
 Cressy, Oliver S. 
 Crockett, George W. 
 Cross, Joseph W. 
 
 Keyes, Edward L. 
 Kimball, Joseph 
 Kinsman, Henry W. 
 Knight, Hiram 
 
 dering the main question, and upon that the yeas 
 and na} s have been ordered. 
 Mr. STEVENSON, of Boston. I hope that 
 
 Crowninshield, F. B. 
 
 Knight, Jefferson 
 
 the Convention will not, at this late stage of the 
 
 Cummings, Joseph 
 
 Knight, Joseph 
 
 proceedings, order the main question to be put ; 
 
 Curtis, Wilbur 
 Cushman, Henry W 
 Cutler, Simeon N. 
 Davis, Ebenezer 
 
 Knowlton, Charles L. 
 Kuhn, George H. 
 Ladd, John S. 
 Lawrence, Luther 
 
 and my reason is this : Here is a proposition for 
 a radical change in the Constitution, submitted, 
 which has never before been suggested in the 
 
 Davis, Isaac 
 
 Lawton, Job G., Jr. 
 
 Commonwealth ; a proposition entirely new, and 
 
 Davis, John 
 
 Leland, Alden 
 
 which has had none of the consideration of the 
 
 Dehon, William 
 DeWitt, Alexander 
 Doane, James C. 
 Dorman, Moses 
 
 Lincoln, Abishai 
 Littlefield, Tristram 
 Lothrop, Samuel K. 
 Loud, Samuel P. 
 
 members of this Convention upon this floor, what 
 ever may have been its consideration elsewhere ; 
 and, consequently, no opportunity has been al 
 
 Duncan, Samuel 
 
 Lowell, John A. 
 
 lowed to see what will be the effect produced by 
 
 Dunham, Bradish 
 
 Marble, William P. 
 
 its adoption, and how it will operate. And yet, 
 
 Durgin, John M. 
 
 Meader, Reuben 
 
 it is proposed here, that we shall vote, yea or nay, 
 
550 
 
 QUESTION OF ORDER, &c. 
 
 [69th day. 
 
 Thursday,] 
 
 HALE STEVENSON BUTLER SCHOULER. 
 
 [July 28th. 
 
 upon it, without having any such opportunity 
 afforded. 
 
 Now, I ask, for what reason can the previous 
 question be ordered, under such circumstances ? 
 It must be for the purpose of saving time ; but I 
 ask if it will save any time ? 
 
 Mr. HALE, of Bridgewater. I rise to a ques 
 tion of order. Is there not a vote of the Conven 
 tion, to adjourn at eight o clock ? 
 
 The PRESIDENT. The Chair has no knowl 
 edge of any vote to that effect. 
 
 Mr. HALE. I am confirmed in that opinion, 
 from the fact that the Chair proposed, a few mo 
 ments ago, that the subject be laid upon the table, 
 so that the Convention might be able to adjourn 
 at 8 o clock, to meet again this evening. 
 
 The PRESIDENT. The Chair will read the 
 Secretary s record, respecting the vote to which 
 the gentleman refers. It is as follows : 
 
 "Mr. Griswold moved that the session be ex 
 tended to eight o clock this evening, and it was 
 carried." 
 
 The Chair accordingly rules, that it is compe 
 tent for the Convention to sit as long as it may 
 feel disposed. The gentleman from Boston can 
 proceed with his remarks. 
 
 Mr. STEVENSON. I was observing, when 
 interrupted, that this is a question of saving time. 
 But I submit, that but one vote can be taken up 
 on these amendments which have been proposed, 
 and a motion may be made to reconsider to-mor 
 row, and the discussion would then probably 
 occupy a much longer time than it would this 
 evening. So that, in fact, there is little or no 
 time to be gained by it. There is another objec 
 tion, which I have, and that is, that I hold in my 
 hand an amendment, which. I desire to propose, 
 and which I believe will receive the approval of 
 many members of the Convention, and as yet no 
 opportunity has been allowed me to propose it. 
 
 Now, I appeal to gentlemen, as a matter of 
 justice is it right, in a body like this, to allow 
 the previous question to be sustained before mem 
 bers have had time or opportunity to reflect upon 
 the matter under consideration ? Is it right, that 
 the moment a gentleman has submitted an im 
 portant proposition, and given us his views in 
 regard to it, another member should at once rise 
 and demand the previous question, thus cutting 
 off all debate and amendments ? Is it the way in 
 which we have conducted our business hereto 
 fore, or the -way in which a body of the dignified 
 character and importance of this, should conduct 
 its labors at any time ? Is there any reason why 
 a member of this body should not have an oppor 
 tunity to ask the mover of a proposition, what is 
 
 its effect what is its purpose ? If we adopt the 
 previous question now, nobody can propose any 
 amendments. And I do not believe it is intended 
 to recommend to the people of Massachusetts to 
 adopt amendments to the Constitution of the 
 State, which we ourselves have never consider 
 ed. 
 
 I am perfectly aware that it is not in order to 
 state objections to the proposition of the gentle 
 man from Walpole, (Mr. Bird,) but it is in order 
 to state, that, as I heard it read, I saw objections 
 which would, I believe, if laid before this Con 
 vention, move the minds of gentlemen to no small 
 degree. 
 
 In regard to the other point, whether you shall 
 settle the question to-night or to-morrow morn 
 ing, that is a matter which must be left with the 
 Convention, who have a right to sit here as long 
 as they choose. But I submit, whether it is 
 proper for such a body as this to ask the people of 
 Massachusetts to alter the fundamental law in a 
 manner which they themselves have not consid 
 ered. As one of the minority of this Convention, 
 I appeal to the majority, in good faith, whether it 
 is right to drive members to vote upon a proposi 
 tion of this character ; and whether it is not due 
 to every individual here, that before he records 
 his vote upon any subject, he should be allowed 
 to express his views in regard to it. 
 
 I hope the previous question will not be sus 
 tained. No good motive for it has been or can be 
 shown, but on the contrary there are many pal 
 pable objections to such a course being taken at 
 this time. 
 
 Mr. BUTLER, of Lowell. I do not wish to 
 say but a single word upon this matter. And 
 first, the gentleman from Boston says there is no 
 good reason why we should sustain the previous 
 question. 
 
 Question of Order. 
 
 Mr. SCHOULER, of Boston. I rise to a point 
 of order. I desire to know, if the Chair has de 
 cided that this Convention did not vote to adjourn 
 at eight o clock ? 
 
 The PRESIDENT. The Chair has read the 
 vote which was passed. The Convention voted 
 it would hold an evening session until eight 
 o clock. 
 
 Mr. SCHOULER. I want the decision of the 
 Chair itself upon this point. 
 
 The PRESIDENT. The Chair will again read 
 the vote, from the journal. 
 
 The entry made by the Secretary was accord 
 ingly read. 
 
 The PRESIDENT. In. accordance with this 
 resolve, the Chair does not consider it imperative 
 
69th day.] 
 
 QUESTION OF ORDER. 
 
 551 
 
 Thursday,; 
 
 SCHOULER BUTLER DANA ALVORD GRISWOLD. 
 
 [July 28th. 
 
 upon him to adjourn the Convention at eight 
 o clock. 
 
 Mr. SCHOULER. Then I appeal from the 
 decision of the Chair. 
 
 Mr. BUTLER, of Lowell. I rise to a point of 
 order. 
 
 The PRESIDENT. The delegate from Bos 
 ton has appealed from the decision of the Chair. 
 
 Mr. BUTLER. Still, I rise to a point of order ; 
 and that is, that no gentleman has a right to 
 make inquiries while another is speaking, in order 
 to get a decision of the Chair upon which to base 
 an appeal. I wish farther to know whether the 
 decision of the Chair can take away my right to 
 the floor? 
 
 Mr. DANA, for Manchester. I would inquire 
 if the question before the House is upon the pre 
 vious question or upon the appeal ? 
 
 The PRESIDENT. The question was upon 
 ordering the main question, pending which the 
 gentleman from Boston (Mr. Schouler) appealed 
 from the decision of the Chair, that it is not im 
 perative for the Chair to adjourn the Convention 
 at eight o clock. 
 
 Mr. SCHOULER, of Boston. I will state the 
 grounds of my appeal. By a vote of the Conven 
 tion, we decided not to adjourn until seven 
 o clock. I had the floor, and was about to address 
 the Convention, when the gentleman for Erving 
 (Mr. Griswold) asked me to allow him to make 
 a motion. I complied with his request, and he 
 then moved to extend that rule to eight o clock. 
 That was the motion made, I care not what it 
 says upon the journal. And I will leave it to the 
 gentleman himself whether in making that motion 
 he intended to raise a quibble, or whether he 
 honestly expected to extend the time to eight 
 o clock when the Convention should adjourn ? 
 
 Mr. ALVORD, for Montague. I rise to a 
 point of order. Some little time ago, I under 
 stood the gentleman from Bridgewater, (Mr. 
 Hale,) to make an inquiry of the Chair concern 
 ing the hour of adjournment. The Chair in 
 reply read the resolution which had been passed, 
 and stated distinctly that in his opinion the Con 
 vention could remain in session as long as it 
 saw fit. No appeal was taken from that decis 
 ion, and I submit as other business has inter 
 vened before the gentleman from Boston rose to 
 a point of order whether it is not too late for an 
 appeal ? 
 
 Mr. SCHOULER. I ask the gentleman for 
 Erving to answer my question. 
 
 Mr. GRISWOLD, for Erving. As the gen 
 tleman has made a personal appeal to me t I am 
 perfectly willing to state what I did and what 
 was my object. My design in making that 
 
 motion to extend the session, was to give notice 
 to the Convention that there would be an even 
 ing session, so that we might close up the busi 
 ness as early as possible, and have it ready for the 
 Committee. That is the reason I made the mo 
 tion. I had no particular idea one way or the 
 other in regard to the hour of adjournment ; but 
 if any existed, it was that the Convention might 
 sit beyond that hour if it chose to do so. 
 
 Mr. ALYORD, for Montague. I rise to a 
 point of order. I submit that the appeal is too late. 
 
 The PRESIDENT. The Chair understands 
 the question to be this : The person now occu 
 pying the Chair was placed in it at a quarter past 
 eight o clock, when the question was raised by 
 the gentleman from Bridgewater, (Mr. Hale,) in 
 regard to the hour of adjournment. The Chair 
 read the vote of the Convention, and still believes 
 that under that vote he has no right to adjourn 
 this body, but the Convention must say for itself 
 when it will adjourn. 
 
 Mr. SCHOULER. I would inquire of the 
 Chair if I am in order ? I was called to order by 
 the gentleman for Montague. 
 
 The PRESIDENT. The Chair would say 
 that he does not desire to press this matter, or to 
 assume any arbitrary power, but merely desires 
 to act in accordance with what he believes to be 
 right. 
 
 Mr. SCHOULER. I know the good nature of 
 the Chair, and his desire to decide properly in 
 this matter, and I am the last man to take an 
 appeal from any decision that the Chair may 
 make, but I do not think that he understands the 
 motion of the gentleman for Erving, (Mr. Gris 
 wold,) as I understood it. A motion, however, 
 was made about seven o clock this evening, by 
 the gentleman now occupying the chair, to lay 
 the orders upon the table, in order that the time 
 of adjournment might be extended until eight 
 o clock, which is conclusive proof to my mind 
 that the Chair understood the order precisely as 
 I understood it. 
 
 Now, Sir, passing from that subject, we are 
 here very near the close of our session. There is 
 no desire on the part of any one to extend the 
 session, and after having thus far gone through 
 with our labors without any serious trouble, I 
 trust that we shall not make the last day s pro 
 ceedings a scene of excitement or uproar, but 
 allow every subject which is to come before us to 
 be acted upon in perfect harmony. I think that 
 if we adjourn now and have the amendments 
 printed, we can come in to-morrow and vote upon 
 them understandingly, and if necessary, I am 
 willing to vote to meet at eight o clock. 
 
 Mr. BUTLER, of Lowell. I rise to a point of 
 
552 
 
 QUESTION OF ORDER. 
 
 [69th day. 
 
 Thursday,] 
 
 SCHOULER LORD JEXKS EARLE DAVIS BUTLER. 
 
 [July 28th. 
 
 order. The gentleman is not discussing the ap 
 peal, but some other subject. 
 
 The PRESIDENT. The Chair rules that the 
 gentleman must confine his remarks to the ques 
 tion of appeal. 
 
 Mr. SCHOULER. If the Chair still rules that 
 this Convention ought not, in accordance with its 
 vote, to adjourn at eight o clock, I hold my ap 
 peal to be good. 
 
 The PRESIDENT. The Chair will state the 
 question as he understands it, and the gentleman 
 may then make such explanation as may be 
 necessary. The Chair understands the matter to 
 be this : The gentleman for Erving, (Mr. Gris- 
 wold,) moved that the Orders of the Day lie upon 
 the table. The motion was agreed to, and the 
 gentleman then moved that the session be ex 
 tended until eight o clock. That motion was also 
 agreed to, and under that vote the Chair holds 
 that it is not his duty to adjourn this Convention 
 until he is authorized by a specific vote to do so. 
 The delegate from Boston, (Mr. Schouler,) ap 
 peals from the decision of the Chair, and the 
 question therefore is, shall the decision of the 
 Chair be sustained ? 
 
 Mr. LORD, of Salem. I desire to make an 
 inquiry of the Chair. During almost the whole 
 of the session we have had a rule to adjourn at 
 one o clock, except on Saturdays, when the session 
 was extended by a vote of the Convention until 
 two o clock. I would ask whether the same 
 form of motion was not used in the present case, 
 as is used in extending the session on that day ? 
 if so, I contend that the same rule ought to be 
 applied here. 
 
 Mr. ELY, of Westfield. I would inquire if 
 there has been any rule by which the afternoon 
 session has been adjourned at a particular hour ? 
 
 Mr. LORD. Will the Chair be kind enough 
 to answer my inquiry, whether the vote by which 
 the Convention adjourned at two o clock in the 
 afternoon, is not precisely in the same form as 
 the order which has been read? 
 
 Mr. BATES, of Plymouth. I rise to a point 
 of order; the gentleman is not discussing the 
 question of appeal. 
 
 The PRESIDENT. The Chair must rule that 
 the questions propounded by the gentleman from 
 Salem, (Mr. Lord,) are not proper to be answered 
 by the Chair. If the gentleman requests it, the 
 Secretary will be directed to read the vote to which 
 he refers. 
 
 Mr. JENKS, of Boston. I would like to say 
 a word upon a question of order. It seems to me 
 that the vote taken by the Convention was this : 
 that the afternoon session shall be extended to 
 eight o clock. Now what did that vote mean ? 
 
 Did it mean to imply that the session should close 
 at eight o clock, this evening, or that we should 
 remain in session until eight to-morrow morning ? 
 I want to know whether a man who is sentenced 
 to be hung at eight, and is not hung until nine 
 o clock, is hung lawfully ? [Laughter.] 
 
 Mr. EARLE, of Worcester. I would inquire 
 of the Chair, whether he has decided the appeal 
 from the decision of the Chair to be in order ? 
 
 The PRESIDENT. The Chair has decided 
 that the appeal taken from the decision of the 
 Chair by the gentleman from Boston, (Mr. 
 Schouler,) is in order, and the question before the 
 Convention is, shall the decision of the Chair 
 stand as the judgment of this Convention ? 
 
 Mr. EARLE. I would inquire whether, when 
 a question has been settled and other business has 
 intervened, it is competent to take an appeal from 
 the decision of the Chair ? 
 
 The PRESIDENT. The Chair is not able to 
 decide that question. 
 
 Mr. DAVIS, of Plymouth. I rise to a point 
 of order. I submit that this is not an appeal from 
 the decision of the Chair ; but if anything, it is an 
 appeal from the record of the Convention, and there 
 would be just as much propriety in appealing 
 from a resolution which has been passed, as from 
 this vote, for such in fact it is, after it has once 
 been recorded upon the journal. 
 
 I think that it is not a matter upon which the 
 Chair is competent to decide, for I consider it to 
 be entirely beyond his jurisdiction, it being an 
 appeal from the record of the Convention, and 
 not from the decision of the Chair. I submit, 
 therefore, that it is not in order. 
 
 Mr. LORD, of Salem. In order to avoid this 
 difficulty which has arisen, and prevent the call 
 ing of the yeas and nays which have been ordered, 
 and in order also to be good natured all around, 
 believing still, however, that the outside limit 
 should be eight o clock, I move that this Conven 
 tion do now adjourn. 
 
 Mr. BUTLER, of Lowell. I rise to a question 
 of order. My legislative experience has been con 
 fined to the last winter, and then it was decided 
 over and over again, that after a motion to adjourn 
 had been made and decided in the negative, another 
 motion was not in order until some subsequent 
 business had been acted upon. I found fault 
 with this decision, not that there may not be 
 business intervening, but the question with me 
 was, what constitutes such business ? Does the 
 President decide that the motion to adjourn is in 
 order, under the present circumstances ? 
 
 The PRESIDENT. The question before the 
 Convention is on the appeal taken from the de 
 cision of the Chair by the gentleman from Bos- 
 
69th day.] 
 
 QUESTION OF ORDER. 
 
 553 
 
 Thursday,] BRADBURY BUTLER HILLARD WESTON LORD GARDNER. [July 28th. 
 
 ton, (Mr. Schouler,) and the gentleman from 
 Salem (Mr. Lord) moves that the Convention do 
 now adjourn. The Chair is of opinion that the 
 motion to adjourn is in order. 
 
 The question being taken, it was, upon a 
 division ayes, 68 ; noes, 118 decided in the 
 negative. 
 
 So the motion to adjourn did not prevail. 
 
 The question recurred on sustaining the de 
 cision of the Chair ? 
 
 Cries of " Question ! " " Question ! " 
 
 Mr. BRADBURY, of Newton. I have stood 
 here too many times in defence of my parliament 
 ary rights, to be silenced by this call for the ques 
 tion. 
 
 I rise merely to state the reasons why I cannot 
 concur in the decision of the Chair, that, under 
 the order adopted to-day, this session does not 
 terminate at eight o clock. The record which 
 has been read seems to indicate that this session 
 should close at that time. 
 
 But, in order to be certain what is demanded 
 by good faith, we must ascertain what is the ap 
 parent meaning of the order, and the manifest 
 understanding with which it was adopted ; and, 
 in order to this, I desire that the Secretary refer 
 to the language of the standing order terminating 
 our morning sessions at one o clock, and also to 
 the subsequent order by which, for Saturdays, it 
 was extended to two o clock. And it seems, if I 
 were occupying your Chair, Mr. President, that 
 the form in which I should find those orders, 
 would guide me in giving a decision in the present 
 instance. 
 
 Besides, Sir, under such an order as has been 
 read to us by the Secretary, gentlemen had reason 
 able ground to expect that this session would 
 terminate at eight o clock. It looks to me like a 
 breach of faith to absent members, to continue 
 this session beyond eight o clock, under existing 
 circumstances ; and I would as soon cut off a 
 right hand as vote to do so with these impressions. 
 
 Mr. BUTLER, of Lowell. I would inform the 
 gentleman that there has been no hour fixed, by 
 any rule whatever, for this Convention to adjourn 
 in the afternoon. 
 
 Mr. BRADBURY. The record will show us 
 the nature of the order. We are assembled here 
 to act upon grave questions, and they must soon 
 be settled definitively. We owe to ourselves and 
 the public our most considerate action upon these 
 questions. They should be settled in a full Con 
 vention, and if there is dereliction of duty in the 
 absence of members, I submit that it is not at this 
 time the fault of the minority. And I farther 
 submit to this Convention, whether, under exist 
 ing circumstances, we ought not now to adjourn, 
 
 to meet to-morrow morning, when we can act 
 upon the subjects before us more deliberately and 
 understandingly than by sitting here to-night ? 
 
 Mr. HILLARD, of Boston. In my younger 
 days I studied a book called " Paley s Moral 
 Philosophy," and in that is laid down this moral 
 rule, that when A makes a contract with B, A 
 shall execute it according to the way in which he 
 knows B to understand it. Now, I can, with 
 justice, apply that rule to this Convention. The 
 order which has been read, is a contract between 
 the majority and the minority ; and I ask 
 whether, in accordance with this moral rule, 
 the majority is not to interpret the contract, or 
 vote in the sense in which they suppose the 
 minority understand it ? Now, if the majority 
 vote that the session of the Convention shall be ex 
 tended to eight o clock, I should like to know 
 whether there is a man in that majority, possess 
 ing natural common sense, who does not believe 
 that it is the understanding of every person in the 
 minority that it is intended to adjourn at eight 
 o clock, and at no other time ? If that be so, I 
 put it to the moral sense of every gentleman here 
 if they are not now bound to stand by that con 
 struction. 
 
 The PRESIDENT. The motion made by the 
 delegate for Erving, (Mr. Griswold,) was, that 
 the session be extended to eight o clock this even 
 ing. The order of adjournment at one o clock, 
 reads as follows : 
 
 That the Convention hereafter adjourn at one 
 o clock in the afternoon, until otherwise ordered. 
 
 Mr. WESTON, of Duxbury. I am surprised 
 that gentlemen profess not to have understood the 
 motion of the gentleman for Erving. For their 
 information, I will state that when that motion 
 was made this morning, a gentleman arose and 
 asked the Chair whether, if the motion should 
 prevail, it would make it imperative upon the 
 Convention to adjourn at eight o clock, and it 
 was the decision of the Chair that it was not im 
 perative upon the Convention, but that it was an 
 open question, to adjourn at eight o clock, or ex 
 tend the session beyond that hour. 
 
 Mr. LORD, of Salem. If the gentleman will 
 allow me, I desire to make a correction. The 
 inquiry was this : whether we might not adjourn 
 before that time ; and the decision of the President 
 was, that the Convention might do so if they de 
 sired ; but there was no statement that the session 
 could be extended beyond eight o clock. 
 
 Mr. GARDNER, of Boston. I merely desire to 
 say, that when the gentleman for Erving (Mr. 
 Griswold) made that motion, I inquired of you, as 
 President pro tcmpore of the Convention, whether 
 
554 
 
 ELECTIONS BY PLURALITY, &c. 
 
 [69th day. 
 
 Thursday,] 
 
 WESTON BALL BUTLER TRAIN ALTORD HALE. 
 
 [July 28th. 
 
 that motion compelled us to remain in session 
 until eight o clock, and your reply was, that the 
 Convention might adjourn at any time it saw fit 
 before that hour. I understood nothing, however, 
 in regard to remaining in session after that time. 
 
 Mr. WESTON. The decision of the Chair, as 
 I understood it, was that the vote did not make it 
 imperative upon the Convention to adjourn be 
 fore or after eight o clock ; and it seems very 
 strange to me that gentlemen pretend that we 
 were to be confined to that hour. 
 
 Mr. BALL, of Upton. One of the gentlemen 
 who has risen to discuss this question, has laid 
 down a principle of moral philosophy, and I hold 
 that I am bound, and we are all bound, to act in 
 accordance with that principle. Now, this ques 
 tion was talked over by the gentlemen in the 
 eastern gallery, who are known by those who 
 have watched their votes, to be in favor of com 
 pleting the business of this Convention at the 
 earliest day possible, that we may go to our 
 homes and families ; and we decided, without the 
 dissent of a single member, that if the rest of the 
 Convention would do so, we would stay here un 
 til eight o clock to-morrow morning. The prop 
 osition was made in the Convention to extend the 
 session until eight o clock, but it was the under 
 standing of members in the gallery, that we 
 might extend that hour still farther, if the state 
 of the business should demand it ; and according 
 ly, gentlemen were prepared to remain here so 
 long as the session should continue. Now I ap 
 peal to gentlemen whether it is not about time to 
 close the labors of this Convention, and allow 
 those who reside at a distance, to return to their 
 families. My business requires that I should be 
 at home now, and there are many others equally 
 as impatient as myself, to be released from the 
 deliberations of this body. 
 
 In regard to another matter. I think that the 
 majority of the Convention will do themselves 
 great harm, if they order the main question to be 
 put at this stage of the proceedings. At any 
 rate, I shall be compelled to vote against it. I 
 hope that the Convention will be ready to come 
 together, and discuss the question which has been 
 proposed, in good spirit, as much so as may be 
 necessary, and take the vote upon it, and close up 
 the business at as early a day as possible. 
 
 The question was then taken on sustaining the 
 decision of the Chair, and it was decided in the 
 affirmative. 
 
 Elections by Plurality. 
 
 Mr. BUTLER, of Lowell. When interrupted, 
 I was about saying that I could adduce many 
 reasons why the main question should be put 
 
 now, and among others, was the action of certain 
 gentlemen who had a habit of calling for the 
 yeas and nays upon the most unimportant ques 
 tions, thus causing a delay in the proceedings of 
 the Convention. Another reason, and a very 
 important one, too, is, that I now see more of the 
 solid men of Boston in this hall, than I have seen 
 since the commencement of the session, and I do 
 not wish to have them detained from their fami 
 lies any longer than possible. I hope that the 
 main question will be ordered, if for no other 
 purpose than to accommodate them. Another rea 
 son is, that if we do not pass these resolves to 
 night, they will lie over until to-morrow, when 
 they would, in all probability, be postponed until 
 the next day, a result which, I trust, the good 
 sense of the majority will not permit to be brought 
 about. 
 
 Now I propose for I have not an overbearing 
 disposition to allow every gentleman who de 
 sires it, to discuss this question fully and fairly. 
 The gentleman from Boston, (Mr. Stevenson,) 
 says that he desires to submit an amendment, 
 and whether he desires to speak or not, we are 
 all here ready to sit and listen to him, though I, 
 myself, happen to be one of those unfortunate 
 men who have had to go without their suppers. 
 [Laughter.] I think, therefore, that it is better 
 that the previous question should be withdrawn, 
 and we will then fix the time at half-past ten for 
 the question to be taken. In the mean time, let 
 every gentleman prepare his amendments, and 
 we will proceed to consider them with all good 
 nature and harmony possible. 
 
 Mr. TRAIN, of Framingham. I hope gentle 
 men understand that this will be a final vote. 
 
 Mr. BUTLER. My friend from Framingham 
 says that this will be the final vote ; it certainly is 
 the case, but if necessary, a reconsideration may 
 be moved. 
 
 Mr. ALVORD, for Montague. I once offered 
 to withdraw my motion for the previous ques 
 tion, provided I could be permitted to substitute 
 a motion to close debate at a particular hour. I 
 am willing to do this at any moment, and place 
 that hour as late in the night as gentlemen may 
 think advisable. I therefore now withdraw my 
 motion for the previous question. 
 
 Mr. BUTLER moved that the Orders of the 
 Day be laid upon the table. 
 
 The motion was agreed to. 
 
 Mr. BUTLER. I now move that the debate 
 upon the question cease at ten o clock. 
 
 Mr. HALE, of Bridgewater. I admire the 
 good nature of the gentleman from Lowell, and 
 I hope that the Convention will follow his exam 
 ple, for by so doing, I believe we shall much 
 
69th day.] 
 
 ELECTIONS BY PLURALITY. 
 
 555 
 
 Thursday,] LIVERMORE SCHOULER DANA GARDNER ALVORD EARLE. [July 28th. 
 
 sooner arrive at the object we have in view. I 
 think that we may make a compromise in this 
 matter, provided gentlemen will agree to yield a 
 little to each other. As has been already sug 
 gested, I believe that we had better separate to 
 night, and fix upon some hour in the morning 
 for taking the question. This will give every 
 opportunity to members to express their views 
 upon this important subject ; but if it is settled 
 to-night, the result will be by no means satisfac 
 tory, and may even tend to extend the session 
 much longer than we now anticipate. I would 
 suggest, therefore, that the most appropriate course 
 for the Convention to pursue, will be to adjourn 
 to-night, after fixing some hour in the morning 
 for debate to cease upon this question ; we can 
 then meet and consider this subject in a much 
 more satisfactory manner than would be the case 
 if we continued in session to-night. 
 
 Mr. LIVERMORE, of Cambridge. I believe 
 I am as good natured as my friend from Lowell, 
 and just as desirous of closing up this session as 
 he is. But I cannot see that we shall gain any 
 thing by continuing our labors to-night. I there 
 fore move to amend the motion of the gentleman, 
 by substituting ten o clock to-morrow morning, 
 in place of the words half-past ten tins even 
 ing. 
 
 Mr. SCHOULER, of Boston. If this ques 
 tion is to be decided so good naturedly, I think I 
 may be allowed to say a word or two. [A laugh.] 
 I think that this is a perfectly fair proposition, 
 and it would be doing no more than justice to 
 the minority of the Convention, to give them the 
 opportunity which this proposition would afford, 
 of offering their amendments, and expressing 
 their views in regard to the question. It is true, 
 a little bad blood has been stirred up, but it has 
 now entirely subsided, and we are prepared to 
 act harmoniously and deliberately. 
 
 I hope that the gentleman from Lowell, (Mr. 
 Butler,) will consent to amend his motion, in the 
 manner suggested, to adjourn to-night, meet to 
 morrow morning, at an early hour, and, at ten 
 o clock, take the vote upon the question. 
 
 Mr. DANA, for Manchester. I would ask for 
 information, so that there may be no misunder 
 standing, whether this question can be again re 
 considered, the gentleman from Walpole having 
 once moved to reconsider it ? Many gentlemen 
 may vote under the impression that it can be re 
 considered after it has been finally disposed of. 
 
 The PRESIDENT. The Chair would inform 
 the gentleman for Manchester, that the question 
 before the Convention has been reconsidered, and 
 amendments have been submitted by the gentle 
 man from Walpole, (Mr. Bird,) so that it would 
 
 not be properly in order to entertain a motion to 
 reconsider a second time. 
 
 Mr. GARDNER, of Boston. I am afraid that 
 the Convention will think that all the good nature 
 is contained within the sixth division. I was 
 about to rise for the purpose of making the same 
 inquiry which the gentleman for Manchester has 
 made, because I felt a serious apprehension that 
 if the final vote was taken at ten o clock, this 
 evening, the question having once been recon 
 sidered, a second motion to reconsider could not 
 be entertained. 
 
 The PRESIDENT. That is the understanding 
 of the Chair. 
 
 Mr. GARDNER. Under these circumstances, 
 and as there are, moreover, but very few mem 
 bers of the Convention who have heard the 
 resolutions and amendments read, or know their 
 meaning, I submit to the good sense and judgment 
 of gentlemen, whether it is not best to postpone 
 farther action until to-morrow morning ? In the 
 meantime, the resolves and amendments can be 
 printed ; we can read and consider them at our 
 leisure, and submit, if necessary, such additional 
 amendments as may be suggested to our minds. 
 
 Mr. ALYORD, for Montague. I wish to call 
 the attention of gentlemen to the fact, that after 
 we have disposed of the matter now before the 
 Convention, we have still to act upon the motion 
 of the gentleman fromTaunton, (Mr. Morton,) in 
 reference to the submission of an alternative prop 
 osition to the people, on the subject of Represen 
 tation ; and also upon the Report of the Com 
 mittee on Revision. Members can judge for 
 themselves of the time which will be required to 
 complete this business ; and, if this motion is 
 adopted, to adjourn until to-morrow, I think it 
 will be utterly impossible to close our session 
 until sometime next week. I hope, therefore, we 
 shall dispose of this matter to-night, and leave 
 only those two questions I have named to be con 
 sidered by the Convention. 
 
 Mr. EARLE, of Worcester. I have endeavored 
 to get the floor for the purpose of making the 
 suggestions to which we have just listened. It 
 seems to me, that if we intend to get through with 
 our labors this week, we must finish the con 
 sideration of this question to-night. There are 
 present, as will be perceived from the last vote 
 which was taken, as many members as there are 
 at any time in the course of the day ; there is a 
 disposition to go on with the business, and I hope 
 that there will be no objection to our proceeding 
 and settling this matter to-night. The propositions 
 which have been submitted are simple in their 
 character, and have been discussed over and over 
 again, in all their bearings, and I have no doubt 
 
556 
 
 ELECTIONS BY PLURALITY. 
 
 [69th day. 
 
 Thursday,] UPTON BUTLER WALKER GARDNER SCHOULER STEVENSON. [July 28th. 
 
 that they can be decided in a very short time, if 
 members will consent to sit an hour or two longer. 
 Gentlemen are desirous of returning to their 
 homes as soon as possible, and are therefore 
 anxious to do as much as can be done when there 
 is an opportunity afforded, and I have not the 
 slightest doubt, if we settle this matter to-night, 
 that we shall be able to adjourn this week. 
 
 Mr. UPTON, of Boston. I cannot say like 
 some gentlemen here, that I am too full for utter 
 ance, for I have not yet had my supper. [Laugh 
 ter.] If there is -a disposition, however, on the 
 part of the majority to stop and make a night of 
 it, I am willing and ready to meet them. I 
 would, therefore, propose to the gentleman from 
 Lowell to withdraw his motion, and let us go on 
 with the discussion of the question. "We can 
 ascertain by midnight, whether the Convention is 
 ready to take a vote or not ; and if not, we can 
 then adjourn, and resume the discussion to-mor 
 row. 
 
 Mr. BUTLER, of Lowell. If the course sug 
 gested by the gentleman from Boston, can be 
 taken, I will withdraw my motion, with pleas 
 ure. 
 
 Mr. WALKER, of North Brookfield, moved 
 that the Orders of the Day be taken from the 
 table. 
 
 The motion was agreed to. 
 
 The question being on agreeing to the amend 
 ments to the resolutions, 
 
 Mr. GARDNER, of Boston, asked for the read 
 ing of the resolutions. 
 
 They were accordingly read by the Secretary. 
 
 Mr. SCHOULER, of Boston, moved that the 
 resolutions be acted upon separately. 
 
 The motion was agreed to. 
 
 The question was, therefore, upon adopting the 
 first amendment submitted by the gentleman from 
 Walpole, (Mr. Bird). 
 
 Mr. SCHOULER. If it is in order, I move to 
 amend the first resolution, by striking out the 
 words " a majority of all the votes given shall be 
 necessary to the election," and inserting the words 
 "the person having the highest number of votes 
 shall be deemed and taken to be elected," so that 
 if amended, it will read : 
 
 That it is expedient to provide in the Constitu 
 tion, that the person having the highest number 
 of votes shall be deemed and taken to be elected 
 in the election of a Governor, Lieu tenant -Gov 
 ernor, Secretary, Treasurer, Auditor, and Attor 
 ney-General of the Commonwealth. 
 
 The question being taken, the amendment was 
 rejected. 
 
 The question being on adopting the amendment 
 of the gentleman from Walpole, (Mr. Bird). 
 
 Mr. STEVENSON, of Boston. If I under 
 stand the amendment of the gentleman from 
 Walpole, he is making no constitutional provision 
 at all, except that the law which may be passed 
 by one legislature upon this subject, shall not take 
 effect until it shall have been ratified by a second 
 legislature, and then it may be made a part of the 
 Constitution. It seems to me, that by the adop 
 tion of such a provision, we shall be throwing 
 into that body every year a party quarrel in re 
 gard to the election of these six State officers 
 named, although the gentleman has attempted to 
 guard against such an occurrence, by providing, 
 that the plurality law which may be passed by 
 one legislature may stand, unless the people choose 
 a body the next year for the sole purpose of re 
 pealing it. Now, if the gentleman is correct in 
 saying, that this is submitting this question to the 
 people, I should like to know what is the ob 
 jection to our submitting it to the people at once ? 
 Surely, if he has so much confidence in them 
 as he professes to have, I see no reason why he 
 should have made it incumbent upon two succes 
 sive legislatures to establish the law. 
 
 While the Committee were considering this 
 subject, a compromise was proposed, not like 
 the one now introduced by the member from 
 Walpole ; but a compromise in which some dis 
 tinction could be drawn, to this effect : that an 
 arrangement should be made, providing for the 
 election of some officers by the plurality, and of 
 others by the majority principle ; but in both 
 cases, the election of officers of the Common 
 wealth to be left in the hands of the people. It 
 was proposed that the Convention should recom 
 mend, that the plurality should rule in those 
 cases where, after repeated trials, the failure to 
 elect was not provided for, and leave the majority 
 rule to be employed in those cases where election 
 would take place upon the first or second ballots 
 always leaving the power to elect, however, in the 
 hands of the people, instead of transferring it to 
 the legislature. 
 
 Now, I can see no advantage which will result 
 from the resolution, if it is amended in the man 
 ner proposed by the gentleman ; but, on the con 
 trary, it introduces not only into the legislature 
 a party contest as to what the law shall be, but 
 also at the polls, in regard to those who may be 
 sent here to legislate with reference entirely to 
 that one question. And, Sir, I do not believe, 
 that the people of Massachusetts desire to choose 
 representatives for any such purpose. If the 
 amendment suggested by the gentleman from 
 Walpole gives the question to the voters when 
 the law has been passed by the legislature, what 
 earthly reason can there be, why we should not 
 
69th day.] 
 
 ELECTIONS BY PLURALITY. 
 
 557 
 
 Thursday,] 
 
 STEVENSON HILLARD BIRD UPTON BUTLER. 
 
 [July 28th. 
 
 submit it to them directly ? Do not set a politi 
 cal firebrand of this character in the legislature ; 
 but let us recommend one or the other of these 
 two rules : The majority or plurality directly to 
 the people ; and let them determine which one 
 they will have, when they vote upon the adoption 
 of the Constitution. The gentleman gains noth 
 ing by his amendment, and the probability is, 
 that it would only result in producing disorder 
 and danger. 
 
 We all know the unpleasant consequences 
 which result in a legislature, where, in a con 
 test for election, members have been voted for 
 with reference, especially, to one particular 
 question. We know that the result has been 
 that that question has been log-rolled more 
 than any other question in the State House. 
 And in regard to forming a constitutional pro 
 vision, there is but one plain, proper mode of 
 dealing with the people, as to how they shall vote 
 for it ; and that is, to propose it to them directly, 
 fairly, and openly, instead of submitting it to 
 them in the indirect way proposed by the gentle 
 man from Walpole. It has been found, that 
 whenever there has been dragged into an election 
 of candidates to the legislature a question upon 
 which the people are divided, it has been made 
 the centre around which log-rolling has been going 
 on. There never was, and never will be, a legis 
 lative body where this will not be the case. The 
 amendment of the gentleman proposes nothing, 
 neither a majority nor a plurality rule, but simply 
 leaves it with the legislature to act upon the sub 
 ject or not, as it may feel disposed. 
 
 As I said before, I think that the Convention 
 has but one step to take in the premises ; and that 
 is, to submit the plurality principle to the people 
 with the Constitution, and let them vote upon it 
 as they please ; if they want it, they will, of 
 course, make it known by their votes ; but, I 
 hope that we shall not consent to let the matter 
 be placed in the hands of the legislature, to be 
 there made a matter of party contest and turmoil. 
 For these reasons, I hope that the amendment 
 will not be adopted. 
 
 Mr. HILLARD, of Boston. I desire to ask 
 but a single question, and that is, whether the 
 gentleman means to give to all subsequent legis 
 latures the power of repealing the act, and 
 whether it is a matter that may be hereafter acted 
 upon like any other legislative question ? 
 
 Mr. BIRD, of Walpole. I think that the gentle 
 man from Boston is far more competent to answer 
 that inquiry than I am. The question is simply 
 whether one legislature can repeal an act passed 
 by the preceding legislature. 
 
 Mr. UPTON, of Boston. I hope that the 
 
 amendment of the gentleman, as it now stands, 
 will not be ado? ted. Gentlemen who have been 
 in the legislature, know as well as I do, that 
 whenever any question of amendment to the 
 Constitution has been proposed, it has been kept 
 as a foot-ball for years, and especially would it be 
 the case were we to allow so important and vital 
 a question as this is, to be placed within their 
 reach. Sir, I hold it to be not only unsound in 
 principle, but it is sometliing to which I might 
 apply much stronger language, to leave the man 
 ner of electing the six State officers named in the 
 resolution, to be determined by a body so fluc 
 tuating and changeable in its character as the 
 legislature of our Commonwealth. I hope that 
 this Convention will not so settle a fundamental 
 law of Massachusetts. 
 
 As I understand this matter, if we adopt the 
 amendment now under discussion, the question 
 will arise in the next legislature, whether the 
 governor and other State officers shall be elected by 
 the plurality, or be elected as they are at the pres 
 ent time. If this question is passed upon affirm 
 atively, it then goes over to the succeeding legis 
 lature, when it will come up for consideration 
 again. 
 
 If that body do not repeal it, it will then, of 
 course, be an open question, and, from that time 
 henceforward, instead of amendments to the Con 
 stitution, you will for years and years have a use 
 less, exciting question, which will cost the Com 
 monwealth thousands upon thousands of dollars 
 to settle; when this Convention has the power 
 to submit it directly to the people, and ascertain 
 from them, at once, what are their wishes in re 
 gard to it. 
 
 Sir, I submit that it is trifling with the voters 
 of this Commonwealth, to undertake here, in the 
 fundamental law, to leave this question subject 
 to legislative action, year in and year out, unde 
 termined and undecided. I would either put in 
 the Constitution the majority rule or the plurality 
 rule, and decide one way or the other, before I 
 would consent to leave this an open question for 
 future legislation. It would be a shame, disgrace 
 ful to the Commonwealth of Massachusetts, and 
 disgraceful to the proceedings of this Convention, 
 were we to leave a proposition of the importance 
 of this, to be kicked about like a foot-ball, 
 from one legislature to the other. So far as the 
 amendment affects the first resolve, I hope that it 
 will not be adopted. 
 
 Mr. BUTLER, of Lowell. I would not have 
 spoken upon this question, were I not the chair 
 man of the Committee which reported these re 
 solves which are now proposed to be amended. 
 And, while I am in favor of them, I desire to 
 
558 
 
 ELECTIONS BY PLURALITY. 
 
 [69th day. 
 
 Thursday,] 
 
 BUTLER SCHOULER WHITNEY. 
 
 [July 28th. 
 
 state to the Convention the reasons why I hope 
 they will be adopted, and the inducements which 
 weigh upon my mind, trusting that they will 
 have the same effect upon the minds of gentlemen 
 of the Convention. When I made this report, 
 the thing which most troubled me was the charge 
 which has been brought by the minority, that we 
 have left these five or six great State officers to be 
 trucked and dickered about ; and they seemed to 
 intimate that it was for some foregone political 
 purpose that it was so. Well, Sir, I admit that it 
 did have a look which would give uncharitable 
 men an opportunity to suppose it was the case ; 
 and it occurred to me, that whatever could be 
 done to remove this apprehension, should be done. 
 Now, what do we propose to do ? One part of 
 the Convention want the majority rule, the other 
 part want the plurality rule ; neither know ex 
 actly what rule the people do desire, although we 
 of course, have our opinion. Now, we say we 
 will put the majority system forward as the judg 
 ment of the Convention, but in order not to tie 
 up the people, to confine them to this, we will 
 leave it to the legislature to alter it whenever the 
 people may feel disposed to choose a body for that 
 purpose. It may be, and is said, that the ques 
 tion will be used for political purposes ; but the 
 next amendment provides that that law shall not 
 take effect until the second legislature has passed 
 upon and agreed to it, and after it has been thus 
 passed upon, there can be no such thing as re 
 pealing it, because it has become the settled 
 policy of the Commonwealth. No man can cal 
 culate two years ahead as to what will be the 
 political state of the Commonwealth, and, conse- 
 sequently, it cannot possibly be made to subserve 
 political or party ends. 
 
 Mr. SCHOULER, of Boston. The third legis 
 lature may repeal it if the people do not like it. 
 
 Mr. BUTLER. So it may, provided the peo 
 ple desire it ; but it cannot be made a political 
 engine. If the people want the plurality, which 
 fact we shall know from their votes, the legisla 
 ture will adopt it, and so long as they have that 
 desire, it will be a moral impossibility to repeal 
 it. And it is for the sole purpose of removing 
 any unjust or uncharitable supposition on the 
 part of our minority friends, that this proposition 
 is intended to truck and dicker with, that we have 
 said that we will leave it with the people to fix 
 the matter as they please. If the majority of the 
 Convention, however, choose to establish the 
 plurality or majority principles, so be it ; I am 
 perfectly content with that result, and hope that 
 other gentlemen will regard it in the same man 
 ner. These are, briefly, my reasons why I shall 
 sustain the resolutions and amendments. 
 
 Mr. WHITNEY, of Conway. The gentleman 
 from Lowell has anticipated my remarks, but 
 there has been a single consideration urged here 
 against this amendment, which, I believe, has not 
 been met, and is not, in fact, entitled to much 
 weight, though it deserves a reply. It is this : 
 that if the legislature shall, in future, adopt the 
 plurality rule, it will become a foot- ball in that 
 body, to be constantly kicked about from one 
 session to the other. Now, I think we have some 
 of the past history of Massachusetts to guide us 
 upon this subject. In 1851, we adopted the plu 
 rality rule so far as it applied to the election of 
 members of congress. Has that been made a 
 foot-ball? No, Sir; nor do I believe that any 
 legislature for ten years to come will agitate the 
 question. It has been settled, permanently set 
 tled, that representatives to congress shall be 
 elected by the plurality rule. It has been said, 
 too, that this will prove a log-rolling machine ; 
 but, Sir, I think that is an argument entitled to 
 little weight. The gentlemen from Boston pre 
 dicted that such would be the case in regard to 
 the election of members of congress, but so far as 
 the rule has been applied there, it has been per 
 fectly successful and satisfactory. It has not been 
 a matter of agitation as yet, and there seems but 
 little probability, at the present time, that it ever 
 will be. 
 
 I desire, for a moment, to call the attention of 
 gentlemen to the history of these resolutions. 
 The subject of plurality was introduced in the 
 early part of the session, and was one of the first 
 matters discussed in Convention. When we 
 came to vote upon it, we found that the Conven 
 tion was about equally divided in regard to the 
 adoption of the plurality rule. Under these cir 
 cumstances, it was thought best to recommit the 
 subject to a Select Committee ; this was done, 
 and the Committee, in due time, reported resolu 
 tions to the effect, that in the choice of the follow 
 ing officers, to wit : senators, representatives, and 
 other officers elected by the people, where there 
 was a failure to elect by the first ballot, the plu 
 rality rule should be appplied thereafter. 
 
 Now, Sir, I like those resolutions as they then 
 stood, and, although they were once adopted, the 
 Convention afterwards reversed their original de 
 cision. The proposition is now made to leave so 
 much of the resolution as relates to the governor, 
 lieutenant-governor, and other State officers, to 
 the jurisdiction of the legislature, and, in my 
 opinion, it is a perfectly proper amendment. If 
 gentlemen desire the plurality rule they can reach 
 it there. Does the gentleman from Boston feel 
 that the legislature will not sustain the plurality ? 
 If he does, we ought not to put it in our Consti- 
 
69th day.] 
 
 ELECTIONS BY PLURALITY. 
 
 559 
 
 Thursday,] 
 
 WHITNEY HALE SCHOULER BIRD GARDNER. 
 
 [July 28th. 
 
 tution, where it cannot be reached. If the people 
 favor the plurality rule, we shall be sure to get it 
 through the legislature ; if not, the present system 
 will stand as heretofore. But it will not be made 
 a foot-ball, to be bandied and kicked about at the 
 mercy of some political party. There is nothing 
 in the history of the Commonwealth to warrant 
 such an intimation, or lead to any such conclu 
 sion, nor will it be the history of the Common 
 wealth if this amendment should prevail. 
 
 Mr. HALE, of Bridgewater. Was not an at 
 tempt made in the legislature, two or three years 
 ago, to adopt the plurality ? 
 
 Mr. WHITNEY. It may have been attempted 
 in one portion of the legislature, but it was not 
 sustained. I do not know that the proposition 
 cost much money, or produced much agitation in 
 the Commonwealth ; certainly I never heard that 
 such was the case. And, since gentlemen are so 
 nearly divided in their opinion in regard to the 
 majority and plurality, it has been proposed to 
 refer the matter to the decision of the legislature. 
 But, if it is incorporated in the Constitution, 
 without any power being allowed to the legisla 
 ture to act upon it, the probability is that we 
 should be necessitated to call another Convention 
 in the course of a few years, to provide against 
 the difficulties which would result from this pro 
 position. The question is one that may be safely 
 left with the legislature, and why will gentlemen, 
 who acknowledge themselves to be in favor of the 
 plurality principle in toto, object to such a course 
 being taken ? We have already referred to that 
 body so much of the resolution as relates to the 
 choice of representatives by this rule, and I can 
 not see what reason there is why we should not 
 also refer to them the clause in question. I hope 
 that gentlemen will consider this as a matter of 
 compromise. As for myself, I am entirely in 
 favor of the plurality rule, but I do not think it 
 would be acting wisely to incorporate it in the 
 Constitution before we have heard from the peo 
 ple their opinion in regard to it, and before it is 
 so fully matured as might be desired. Therefore, 
 I think it was wisely proposed to leave the mat 
 ter with the legislature. In regard to the diffi 
 culties which have been suggested as likely to 
 result from such a reference, I merely wish to say, 
 that all such intimations of danger, are founded 
 on no good, substantial reasons, growing out of 
 the past history, or from any prospective view 
 that we may take of the action of the people of 
 the Commonwealth ; and consequently no faith or 
 confidence should be placed in them. I hope 
 that the amendment will prevail. 
 
 Mr. SCHOULER, of Boston. I move to 
 amend the amendment of the gentleman from 
 
 Walpole, by adding after the words " until one 
 year after its passage," the words, " and if repeal 
 ed, the same shall not take effect until one year 
 after its passage." 
 
 Mr. BIIID. I accept the amendment. 
 
 Mr. GARDNER, of Boston. The gentleman 
 from Conway, (Mr. Whitney,) says he thinks 
 that the objection which was urged in debate, that 
 if this amendment was adopted by the Conven 
 tion, it would introduce log-rolling and party 
 spirit into the legislature, making this entirely a 
 political question, is entitled to great weight, pro 
 vided the past history of the Commonwealth sus 
 tained that idea ; and he has argued that the past 
 history of Massachusetts does not sustain that 
 idea. That is the point at which his remarks 
 were aimed. 
 
 Now, Sir, the gentleman from Conway is 
 usually pretty well informed in these matters ; 
 but, if he had been acquainted with the facts of 
 this case, he would not have arisen, as he did, for 
 this purpose of alluding to the past history of 
 Massachusetts as bearing upon this subject ; and 
 if I could convince him that the past history is 
 what my colleague claimed, I may safely say that 
 his vote would be cast against the proposition. 
 The facts are these : Three years ago, one branch 
 of the legislature, in this building, enacted that 
 electors and members of congress should be chosen 
 by the plurality rule, 011 the second trial ; and the 
 very next year, the other branch passed a law that 
 the electors for president and members of con 
 gress should be elected by the majority rule. 
 The qtiestion was discussed for several day?, and 
 when the vote was taken there were but live or 
 six majority who voted against changing the law. 
 My friend is mistaken when he says it caused no 
 party division ; it did. It commanded almost the 
 whole strength and support of a certain party, 
 and had it not been for three or four gentlemen 
 whom I see here to-night, who broke from party 
 and party trammels, it would have been repealed. 
 And one or two gentlemen who now sit near the 
 gentleman from Conway, were of the small band 
 who voted in favor of sustaining the plurality. 
 It came within a mere handful of votes of being 
 reconsidered and repealed. So much for the past 
 history of the Commonwealth in regard to this 
 matter. 
 
 Now the gentleman from Walpole, (Mr. Bird,) 
 has introduced a proposition here which varies 
 the action of the Convention hereafter in several 
 very important particulars, though the difficulty 
 which would result from it has been obviated to 
 some extent by his acceptance of the amendment 
 of my colleague, (Mr. Schouler,) so that it now 
 provides that it shall require the action of two 
 
560 
 
 ELECTIONS BY PLURALITY. 
 
 [69th day. 
 
 Thursday,] 
 
 GARDNER WHITNEY SCHOULER. 
 
 [July 28th, 
 
 consecutive legislatures to establish the plurality 
 principle, and the action of two consecutive legis 
 latures to repeal it. I should like to know if, 
 under such circumstances, any subsequent legis 
 lature could touch the subject thereafter ? But 
 why are gentlemen so much afraid of the people, 
 that instead of submitting the question directly 
 to them for their decision, they should provide 
 that two consecutive legislatures should be re 
 quired to create the law ? So that, in fact, the 
 people themselves have nothing to do or say 
 about the matter. Why is this invidious distinc 
 tion made ? 
 
 Then again, this Convention has decided that 
 members of the House of Representatives shall 
 be elected by a plurality vote, but the amend 
 ment of the gentleman makes it necessary that 
 two legislatures shall also be required to author 
 ize this law. Now, I ask, what are those who 
 are in favor of plurality to gain by such a com 
 promise as that ? The original compromise was 
 that members should be elected by the plurality ; 
 the second was that it should require one legisla 
 ture to enact the law, and now the third compro 
 mise is that two consecutive legislatures shall be 
 necessary for this purpose. 
 
 Sir, I fear that if this Convention does not 
 adjourn, we shall make another compromise still, 
 that a half-a-dozen legislatures shall be required 
 to pass upon this provision before it can become 
 a law of the land. The more talk there is, the 
 more compromises are made. 
 
 Now I want to ask where it is, what part of 
 the State it is, which is deprived of its representa 
 tives by a non-election ? Why, Sir, it is in those 
 towns which are entitled to one representative 
 only ; they are the ones upon whom the loss 
 most heavily falls. And I want to ask the dele 
 gates from those towns, thus situated, whether 
 they are in favor of piling Ossa upon Pelion ? 
 Now we require the sanction of two consecutive 
 legislatures to authorize the small towns to send 
 their representatives here by a plurality vote. If 
 the towns are to be represented, it is to be brought 
 about by the plurality principle, and by this alone. 
 In the early part of the session there was an 
 amendment submitted by a gentleman, proposing 
 a very important alteration ; it was introduced as 
 a kind of compromise, and was, in fact, the only 
 tub thrown to the whale, having been passed by 
 a majority of the Convention ; but of which I 
 have heard nothing since that time. And now 
 it is proposed to go back and change all that has 
 been done. 
 
 This is the advantage of compromises ; but I did 
 not expect this Convention to be so favorably 
 disposed towards them. I have heard the voices 
 
 of many of the prominent members of this body 
 raised in opposition. I have listened to the most 
 eloquent diatribes against this vile compromise ; 
 but yet, the only argument which can be adduced 
 in favor of the amendment under discussion is, 
 that it is in the nature of a compromise, and will 
 be more acceptable to the people. 
 
 As for myself, I have voted for this question of 
 plurality from the first to the last, in accordance 
 with my sentiments, uniformly and conscien 
 tiously, and I am free to say that I should prefer 
 to see the plurality question settled here, rather 
 than have the amendment of the gentleman from 
 Walpole adopted as the sense of this body. In 
 deed, I may say that I would vastly prefer to see 
 the majority principle reestablished, rather than 
 to have this hermaphrodite principle which gen 
 tlemen are endeavoring to instil into our minds. 
 I desire to stand fairly, honestly, and openly in 
 this matter ; to have something tangible upon 
 which to rely, so that when the question is asked 
 me, What has been the action of the Conven 
 tion ? I need not be compelled to search through 
 a half-a-dozen volumes of law books, constitu 
 tions, amendments, compromises, and public doc 
 uments for a reply. I desire to have the matter 
 plain and explicit ; so that it can be understood 
 by all the people. 
 
 If we do not adjourn on Saturday, I am afraid 
 we shall be undoing, or digging up other plain 
 questions that have already been acted upon and 
 decided by the Convention, and enclosing and 
 enveloping them in such obscurity that we our 
 selves cannot tell what has been the result of our 
 proceedings here. In conclusion, let me tell my 
 friends that if they expect the people to accept the 
 Constitution we shall present to them, they must 
 make such provision that when the people ask 
 for fish, we shall not give them a serpent ; and 
 when they ask for bread, they shall not receive a 
 stone ; we must give them something that when it 
 is presented to them, they will not be compelled 
 to stop and taste of it to ascertain its quality. 
 
 Mr. WHITNEY, of Conway. I directed my 
 remarks particularly to the question of the elec 
 tion of members of congress, and I believe that 
 I am right, so far as the matter of history is con 
 cerned. In the matter of the election of electors 
 for the office of president, it was agitated in the 
 legislature, but not to any extent among the 
 people. The subject of members of congress, 
 however, I am free to say, has had no very con 
 siderable agitation anywhere, though it is a matter 
 of considerable importance in times of high po 
 litical excitement, such as we have about the 
 period of the presidential election. 
 
 Mr. SCHOULER. The statement made by 
 
69th day.] 
 
 ELECTIONS BY PLURALITY. 
 
 561 
 
 Thursday, 
 
 BATES MIXTER. 
 
 [July 28th. 
 
 the gentleman from Conway, I believe, is perfectly 
 correct in regard to the action of the House upon 
 the repeal of that part of the plurality law which 
 relates to the election of electors. It passed the 
 Senate and came into the House, and without 
 debate was laid upon the table. 
 
 Now, Sir, I presume that the amendment of the 
 gentleman from Walpole is going to pass, and 
 as he has accepted my amendment, which I hope 
 will be adopted also, I have no farther doubt in 
 regard to it. 
 
 Mr. BATES, of Plymouth. I will detain the 
 Convention but a moment. I understood the 
 gentleman representing Barre, (Mr. Aldrich,) 
 when he first arose, to state that it had been con 
 ceded on all hands, that the people of Massachu 
 setts were unanimously in favor of the plurality 
 principle. 
 
 Mr. ALDRICH. The gentleman misunder 
 stood me. I did not say so. 
 
 Mr. BATES. Sir, I do not believe that the 
 people are so much in favor of the new principle, 
 as many gentlemen imagine. I shall vote for 
 this thing, because I believe it gives a little more 
 to the majority than it did before. I came here 
 in favor of the majority principle, and shall vote 
 with great reluctance for anything which goes to 
 sustain the plurality. I shall vote for the 
 amendment of the gentleman from Walpole, 
 however, because it gives the power to the legis 
 lature to regulate the election of the various offi 
 cers named, and if the people desire any change, 
 they can obtain it by electing representatives for 
 that purpose. 
 
 Mr. MIXTER, of New Braintree. I desire to 
 state my views in regard to the matter under 
 consideration, and as 1 have not before intruded 
 myself upon the Convention, it being the first 
 time I have addressed the Chair, I trust that I 
 may be indulged for a few moments. Nor would 
 I now break the silence which I have hitherto 
 preserved, did I not believe that the importance 
 of this question demanded that I should, in com 
 mon with other gentlemen, express my views in 
 regard to it. 
 
 Sir, I believe that the people of the town which 
 I represent, as well as of other towns in the 
 vicinity of my home, expected that this Conven 
 tion would establish the plurality principle 
 throughout, w r hen it came together ; and as near 
 as I can judge, I am led to believe that this was 
 the main reason why the people were willing and 
 ready to vote for the calling of this Convention. 
 From the beginning, I have been in favor of the 
 plurality system, and am so still ; but I am not in 
 favor of the system which will be established by 
 the adoption of this amendment. I think that we 
 
 33 8 
 
 came here for the purpose of making a Constitution 
 that should be acceptable to the people of this 
 Commonwealth ; we came here to consult and 
 deliberate as to the best mode of promoting their 
 interests and welfare, and not for the purpose of 
 making a sliding rule, so to speak, which may be 
 turned over and changed by the legislature. 
 While we are here, it is our duty to adopt either 
 the majority or plurality rule ; we have been 
 considering the plurality rule, but from the votes 
 which have been taken, I am inclined to believe 
 that we have in a great measure departed from 
 that principle. Certainly, there is no principle at 
 all in the course we have taken, and which gen 
 tlemen seem disposed to take this evening in 
 adopting this amendment. If we are to have 
 either of the systems, the majority or plurality, let 
 us have the principle of the thing, for when we 
 curtail it, it is no longer a principle, but simply a 
 rule of action. 
 
 Now, we have established the plurality rule 
 for the election of some officers of the govern 
 ment, and the majority rule for the election of 
 some others ; and this is the kind of Constitution 
 which we are to send out to our constituents as 
 the result of our labors here. But, this is not 
 all. The attempt is now made to establish a 
 sliding scale, by which we shall allow the legis 
 lature of Massachusetts to alter the organic law 
 of the land without the sanction of a direct vote 
 of the people, so that at any time when that body 
 is in session, it may make such amendments to 
 the Constitution as it may be disposed to make. 
 
 Again, by the adoption of this amendment, the 
 operation of the plurality law is to be suspended 
 for two years, in order to give time to two legis 
 latures to act upon it, and repeal or accept it, as 
 the circumstances may be. Amendments may 
 therefore be made to the Constitution by two 
 legislatures, without the concurrence of the peo 
 ple. And, mark ye, Sir, these legislatures are to 
 be assembled and elected under a rule established 
 by this Convention, which is admitted by every 
 gentleman who has examined it, to be unjust 
 and unsound. I ask why are we not willing to 
 make such a Constitution as we were sent here to 
 frame ? We have provided a basis of represent 
 ation whereby the legislature is to be elected by 
 less than a majority of the people, and it is to be 
 allowed to assemble here and make laws, and 
 amend our Constitution without the concurrence 
 of the people, and without allowing them to ex 
 press by their votes, their opinion upon those 
 changes. 
 
 Sir, I enter my protest against any provision of 
 this kind ; I do not believe that it is required ; I 
 do not believe we were sent here to vote upon 
 
562 
 
 ELECTIONS BY PLURALITY. 
 
 [69th day. 
 
 Thursday,; 
 
 WALKER LORD. 
 
 [July 28th. 
 
 any such proposition. I think that its operation 
 will be most injurious to the interests of the peo 
 ple, and that it will introduce difficulties in every 
 election that may hereafter take place. It is our 
 duty to make a Constitution such as our con 
 sciences may tell us is right, give it to the people, 
 and let them act upon it just as they may think 
 proper. But, as for this mongrel system, which 
 we are preparing to send out this unjust basis 
 of representation, this election of officers of gov 
 ernment partly by one rule and partly by another, 
 and last of all, this reposing of so much power 
 in the hands of the legislature I am entirely 
 opposed to it. For these reasons, I shall feel 
 bound to vote against the amendment. 
 
 Mr. WALKER, of North Brookfield. The 
 amendment now before us provides, that all the 
 State officers, governor, lieutenant-governor, sec 
 retary of state, attorney-general, &c., and also 
 all representatives to the general court, shall be 
 placed on one platform, and elected by a majority 
 of votes ; and, also, that the legislature shall 
 have power to provide by law, that they may be 
 elected by a plurality, the law making the change 
 not to take effect until one year after its passage. 
 
 That I understand to be the sum and substance 
 of this amendment. This is, in fact, to throw 
 the matter into the hands of the people, and if it 
 be their will that we shall be governed by a plu 
 rality instead of a majority, they will say so at 
 the polls and through their representatives ; and, 
 as one legislature will intervene, they cannot have 
 the measure sprung upon them contrary to their 
 wishes. They will understand the whole matter, 
 and have ample opportunity to repeal the act 
 should it be obnoxious to them. 
 
 Now, I think it marvellously strange, that cer 
 tain gentlemen here, belonging to the party now in 
 power in this Commonwealth, should manifest such 
 extreme anxiety to defeat the proposition before 
 us. They have been very solicitous, during the 
 whole session, to establish the plurality principle, 
 and now, when it is proposed to give the legisla 
 ture power to do this very thing, they are out in 
 violent hostility to the measure ! They have dis 
 covered that it is not safe and proper to trust the 
 people, through their representatives, with this 
 power, and they are in great alarm and trepida 
 tion about the matter. Such is the pretence, Sir ; 
 but I suppose the real fact is, that they foresee 
 that this provision, as it renders our Constitution 
 consistent, and virtually gives the people the al 
 ternative of majority or plurality, will make that 
 instrument so perfect and popular, that they shall 
 not be able to rally even their own party against 
 it. 
 
 They did expect to make a great deal of politi 
 
 cal capital out of the fact, that we had provided 
 that the governor, lieutenant-governor, &c., should 
 be elected in one way, and representatives in 
 another. Now they see, distinctly, that the pres 
 ent amendment is to remove that objection, and 
 destroy all reasonable ground of opposition. This 
 is the explanation of the affair. 
 
 I am opposed to the plurality system, but I 
 say if the people want it, let them have it. If 
 they want the majority rule, let them have it. I 
 have no faith in the plurality principle myself, 
 and I agree with the gentleman for Wilbraham, 
 (Mr. Hallett,) who has declared here, that, when 
 ever the government is chosen by any number 
 less than a majority, it ceases to be a democracy. 
 I believe that to be true, hence I am opposed, and 
 have been throughout, as every-body knows, to 
 the plurality system. But I cannot conceive any 
 thing inconsistent in my voting for this amend 
 ment, because it provides for election by majority 
 in all cases, except in that of senators and county 
 officers ; and, in regard to these, for obvious rea 
 sons, there cannot be two trials. But, in regard 
 to all the State officers, we establish the majority 
 principle, and, at the same time, generously throw 
 it out to the people, to say whether they prefer 
 the plurality principle. Now, if they want it, let 
 them have it. 
 
 Mr. LORD. I wish to ask the gentleman a 
 question. My difficulty is, I have not been able 
 to see this resolution, and I do not know whether 
 I understand it. I understand that for all the 
 higher officers, the majority rule is in force. Do 
 these resolutions propose to submit to the people 
 whether the plurality rule shall be adopted ? 
 
 Mr. WALKER. I have repeatedly said, the 
 majority principle is to be enforced hereafter, in 
 regard to those officers, until the legislature shall 
 otherwise determine. 
 
 Mr. LORD. I beg pardon. I understood it 
 was to be left to the people to pass upon the ques 
 tion. 
 
 Mr. WALKER. It is now proposed, by the 
 amendment before us, that it be left to the legis 
 lature, whether any change of principle shall be 
 made. 
 
 Mr. LORD. Then I understand that the gen 
 tleman does not wish to allow the people to de 
 cide it, but prefers to put it through the legisla 
 ture. 
 
 Mr. WALKER. That is one of the gentle 
 man s own inferences. I have said that I wish 
 to have the majority principle established by this 
 Convention, but am willing the legislature should 
 have power to change it, in the manner provided 
 in the amendment under consideration. That, I 
 regard the same thing, in effect, as submitting the 
 
69th day.] 
 
 ELECTIONS BY PLURALITY. 
 
 563 
 
 Thursday,] 
 
 SCHOULEB, DAVIS TRAIN. 
 
 [July 28th. 
 
 question directly to the popular vote, because, as 
 the law making the change cannot go into effect 
 until after one year, another legislature will inter 
 vene, and the people will have an opportunity to 
 reverse the action of the previous legislature if 
 they choose to do so. It is, therefore, virtually 
 submitting the question to the people in the best 
 manner possible. 
 
 Now, while I am most heartily and unequivo 
 cally in favor of the majority principle, I think I 
 am consistent in being in favor of the proposed 
 amendment, because it makes our Constitution 
 uniform in regard to all State officers, and places 
 the power of changing the principle really in the 
 hands of the people, jwhere, of course, it most 
 properly belongs. 
 
 Mr. SCHOULER, of Boston. I wish to ask 
 one question, which is, wherein this amendment 
 changes, substantially, the Constitution from what 
 it now is ? The legislature has already the power 
 to change the mode of voting in two years. 
 
 Mr. DAVIS, of Plymouth. I am extremely 
 reluctant to intrude upon the Convention, and I 
 do not do so to make an argument, but merely 
 to make a statement, inasmuch as I fully agree 
 with the opinion of the gentleman from North 
 Brookfield, (Mr. Walker,) in regard to the ques 
 tion of plurality and majority, but I am willing, 
 for one, to vote for this proposition. It seems to 
 me that those gentlemen who are opposed to the 
 plurality principle, may safely unite upon it, and 
 those who consider the majority system a matter 
 of principle, will be very unwilling to vote for 
 such a principle as one to be incorporated into the 
 organic law. 
 
 I merely rose to correct what I supposed might 
 be an erroneous impression in the mind of the 
 gentleman from Walpole, in regard to the amend 
 ment of the gentleman from Boston. I under 
 stand its effect to be this : that in case the plural 
 ity system be adopted by one legislature, and the 
 sanction of the next legislature be withheld, the 
 system not having gone into operation, might be 
 repealed without going into operation at all. I 
 submit that the original amendment, as it now 
 stands, is contradictory. The latter part of it con 
 tradicts the former. I suppose the intention was, 
 that it should be repealed after going into opera 
 tion, although such repeal should not take effect 
 until a year afterwards. As it now reads, if one 
 legislature passes the law, and the next repeals it, 
 it will go into effect notwithstanding. I would, 
 therefore, suggest to the gentleman from Walpole, 
 the propriety of amending his amendment. 
 
 The PRESIDENT. Did the gentleman from 
 Plymouth propose any amendment ? 
 
 Mr. DAVIS, of Plymouth. Yes, Sir. I move 
 
 to insert after the word " repeal," the words, 
 " and if repealed, such repeal shall not go into 
 operation until one year thereafter." 
 
 Mr. TRAIN, of Framingham. I rise to a 
 question of order. I believe this is an amend 
 ment in the third degree. 
 
 The PRESIDENT. No, Sir. The gentleman 
 from Walpole accepted the amendment of the 
 gentleman from Boston. 
 
 Mr. TRAIN. I am sorry, Sir, to detain the 
 Convention for a single moment upon this sub 
 ject, at this late hour. We have outlived the 
 moles and the bats. They have been with us and 
 have departed, save one solitary specimen of the 
 latter that I see flitting about still, within these 
 walls, wondering, no doubt, at this unusual in 
 trusion upon his domain. I, Sir, came to this 
 Convention a plurality man, that is, an advocate 
 of the plurality system ; I have continued to be 
 a plurality man, and shall go away a plurality 
 man. And I do not wish that this Convention 
 should submit any proposition to the people that 
 will require of me an effort to explain. And now 
 I say, if the Convention pass this provision, as 
 submitted by the gentleman from Walpole, they 
 will not only need to go to school to be enabled to 
 understand it, for it will be bad grammer, but it 
 will be necessary that we should go into a discus 
 sion in reference to it, in order to persuade the 
 people that it is suitable to be adopted. And there 
 are three sets of principles, or rules, to be advoca 
 ted. Sir, they cannot be successfully defended. 
 There is no consistency about the matter. And the 
 gentleman from North Brookfield, (Mr. Walker,) 
 and others, have no right to take the ground that 
 they concede something, and express surpise be 
 cause we are not satisfied with their concession. 
 Sir, who would be satisfied with the concession 
 which allows the people to say next November, 
 whether they will elect their representatives by 
 majority or plurality ? There is no concession 
 about it. It is neither fish, flesh, nor good red 
 herring. It is neither the will of the people ex 
 pressed at the polls, nor the will of the people 
 expressed through the legislature, but a mixture 
 of both. Sir, if I understand what was the sit 
 uation of this Convention, down to the time when 
 the resolutions on this subject were laid upon the 
 table, as stated in the leading journals of the day, 
 the plurality rule was opposed on the ground that 
 it was wrong in principle, and would be wrong 
 in practice. Sir, I find in the report of a speech 
 of the gentleman from Natick, the following : 
 
 " I oppose the plurality system, because I be 
 lieve it tends to degrade the politics of the country, 
 and to demoralize the politicians of the country. 
 I think this has been the experience of the coun- 
 
564 
 
 ELECTIONS BY PLURALITY. 
 
 [69th day. 
 
 Thursday,; 
 
 THA.IN SPOON KB. 
 
 [July 28th. 
 
 try. It has increased the power of the caucus, 
 the convention, party organizations, great combi 
 nations, great interests, and the influence of 
 political leaders, and it has diminished the power 
 of the people, who follow their higher and better 
 sentiments." * * 
 
 "The majority system gives the men of prin 
 ciples, ideas and sentiments, the power to resist 
 the schemes of party leaders, and to make them 
 feel, whenever they enter the caucus arid the 
 convention, that they must not outrage the higher 
 sentiments of the best men of their parties. Now, 
 Sir, adopt the plurality rule in all your elections, 
 and you make the caucus and the convention 
 omnipotent; you give full sway to the political 
 chiefs who are controlled by interest arid ambi 
 tion. The whole tendency of the system is to 
 debauch the public sentiment of the country, and 
 to enthrone the omnipotent power of the caucus 
 and the convention. Politicians go into the 
 caucus or the convention prompted by ambition 
 and interest, adopt their own schemes of policy, 
 and when the day of election comes, and the men 
 who are governed by their higher and better sen 
 timents assemble around the ballot-box, they are 
 told that they must take the choice of evils, that 
 they must vote for a candidate they know to be 
 unworthy, whose < nomination was not fit to be 
 made, or his and their political opponent will be 
 elected. The) - know the contest must be then 
 and there decided. They feel the pressure. They 
 pause, hesitate, yield, vote for a candidate they 
 know to be unworthy, and go home degraded in 
 their own eyes, and more ready to yield again to 
 the demands of the caucus and the convention. 
 The whole machinery of caucuses and conven 
 tions in this country is one of the worst features 
 of our democratic institutions. The majority 
 system gives the people the power to checkmate 
 their influence ; the plurality system lets them 
 have free course and be glorified." 
 
 Now, Sir, that gentleman is the exponent of the 
 views of his party. He spoke the faith of the 
 party. He was followed by his party. If it was 
 true in his belief then, it is true to-night. If 
 right then, they are bound to stand by it now. 
 And they have no right to concede to the friends 
 of plurality. 
 
 I put it to gentlemen, if they intend to be con 
 sistent. I oppose this amendment, because it does 
 not give me plurality. What does it propose ? 
 That the legislature every two years may agitate 
 the question. It is nothing but a miserable 
 make weight, and when you go to the people and 
 tell them here is plurality, when in fact it is not 
 so much as you have had for the last ten years. 
 And now gentlemen come in here with a propo 
 sition designed to cheat the people into the belief 
 that they are getting the plurality system, when 
 in fact they are getting no such thing at all. And 
 the gentleman from North Brookfield, (Mr 
 Walker,) who, I have no doubt, has read Ten 
 Thousand a Year, and will recollect a certain legal 
 
 gentleman therein described, and will have no 
 trouble in recognizing him as his own counter 
 part, tells us that if the people wish for the plu 
 rality system, they will express their opinion 
 through the legislature, and he will go home and 
 tell his constituents that he is consistent, beauti 
 fully consistent. If that is consistency, I know 
 not what consistency means. No, Sir, it is no 
 consistency. You propose to let the people pass 
 upon what shall be the fundamental law ; but you 
 cannot do it in this way. I am willing to let the 
 people say whether they will have plurality or 
 majority; but if you undertake to say that the 
 legislatute shall first pass a law to establish it, 
 and then be at liberty to pass another law repeal 
 ing it, what sort of a provision are you likely to 
 have ? It will have to stand for a year upon the 
 statute book before it will have any vitality. For 
 these reasons, I am opposed to the proposed 
 amendment. I wish to have a Constitution that 
 shall be consistent. I wish the people to have an 
 opportunity to say whether they will have the 
 majority or the plurality rule. And I challenge 
 gentlemen on the other side to defend, on principle, 
 this proposition if they can. The six highest 
 officers in the Commonwealth to be chosen by a 
 majority, and county and town officers by such 
 law as the legislature shall hereafter see fit to 
 direct. If the principle is right in the election of 
 any of your officers, it is right in relation to your 
 senators, your governor, &c. Sir, as we were 
 told by the gentleman from Natick, the difficulty 
 was, the truck and dicker stuck right straight out. 
 It left the highest officers to be bargained for. 
 Now, the same charge applies still. It still leaves 
 these officers to be made a matter of trade. The 
 plurality law is to be a matter of trade. Now I 
 have said substantially, earnestly, courteously, I 
 hope, what are my views in regard to this matter. 
 I trust the proposed amendment will be voted 
 down, and that we shall have a clear and distinct 
 proposition substituted for it, if we are to have 
 any provision on the subject. As an amendment 
 is not now in order, I suppose I must give notice 
 that at some time, when in order, I shall take 
 occasion to mqve to strike out " majority" and in 
 sert "plurality." 
 
 Mr. SPOONER, of Warwick. Will the gen 
 tleman tell us what he means by a legislature 
 chosen by one-third of the people ? If he refers 
 to the House of Representatives, particularly, I 
 will say to him there is no system of representa 
 tion, town, district, nor any other, which more 
 truly, fairly, thoroughly indicates the popular 
 sentiment of Massachusetts, than the House of 
 Representatives, as at present constituted. Com 
 pare it with the Senate. The Senate has been 
 
69th day.] 
 
 ELECTIONS BY PLURALITY. 
 
 565 
 
 Thursday,] 
 
 HURLBUT LORD. 
 
 [July 28th. 
 
 set forth as representing politically the people of 
 Massachusetts. Who are the people r What is 
 meant by the phrase people ? It means those 
 who have a voice in the election of representatives 
 Will the voters of Framingham and Berkshire, 
 have as much voice as those of the large cities in 
 this Commonwealth ? No, Sir. Far from it. 
 
 Gentlemen tell us that the people are asking 
 for the establishment of the plurality rule. They 
 are asking for no such thing. They do not want 
 it. They only want to adopt the plurality in 
 cases where they are obliged to have it, where 
 they cannot get along without it, and nowhere 
 else. Where the majority principle occasions 
 delay and expense beyond endurance, there the 
 psopie are willing that the plurality shall be used 
 to avoid the difficulty, and nowhere else. And, 
 this amendment does the very thing that is 
 wanted ; it provides for the plurality where the 
 people really want it, and must have it, and saves 
 the majority rule wherever it can be preserved 
 without occasioning inconvenience and delay. 
 The great cause of delay and inconvenience in 
 the legislature heretofore, has been in filling up 
 the Senate, the Governor s Council, &c. Well, 
 we have reduced the number of officers to be 
 chosen by the legislature, from fifty to about five. 
 This number does not furnish a sufficient capital 
 to trade upon ; it does not furnish an inducement 
 to create delay and difficulty. I hope the amend 
 ment will be adopted. 
 
 Mr. HURLBUT, of Sudbury. I do not pro 
 pose, at this late hour almost midnight as it is 
 to detain the Convention with any remarks at 
 length, but I desire, in a few words, to meet this 
 question in all candor. Gentleman are well 
 aware of the position which I have heretofore 
 taken and maintained on this subject. From the 
 beginning, until the present time, at the last hour 
 of the Convention almost, I have been a majority 
 man, and acknowledge none other as my princi 
 ple. I believe that none other is correct ; but I 
 am not prepared to say as the gentleman from 
 Framingham (Mr. Train) said, that I came into 
 this Convention a majority man, that I have con 
 tinued here a majority man, and that I will go 
 out of it a majority man, and will take nothing 
 else. No, Sir ; I am prepared to maintain here 
 and elsewhere that my views on this question are 
 correct; but, because I cannot have my desire 
 wholly gratified, I shall not act contrary to the 
 general will of this body. I am ready to meet the 
 gentleman from Framingham half way, and shake 
 hands with him over a compromise. That gen 
 tleman knows, as well as myself, that neither of 
 us can have what we should like in a matter of 
 this kind. But, what shall we do ? Shall he 
 
 stand up here and say, I will have nothing but 
 a plurality system, and shall I say I will accept 
 nothing but the majority system ? I acknowledge 
 the plurality as a principle; I see how that gen 
 tleman can advocate that principle according to 
 his views of it; but yet, I acknowledge the 
 majority as a still better principle. Neither of 
 us can carry out our principles here, however, 
 and the question arises, what shall we do ? I 
 thought the other day, when this question was 
 up, that it had been settled finally, complete 
 ly, so far as the action of the Convention was 
 concerned, and that I then surrendered all that 
 the general good required ; though when I did 
 this, I by no means surrendered the principle 
 which I shall ever maintain. It was for the sake 
 of compromise only. And now the subject has 
 again come up for Cunsideration, and an amend 
 ment has been offered, purporting to be what 
 gentlemen on the other side of the house call 
 nothing. Again I am called upon to surrender 
 something ; I am called upon to let the legisla 
 ture determine whether we shall have a plurality 
 in time or not ; and I am willing to concede even 
 that, if the people of this Commonwealth so 
 ordain. If thtft be their will, I say amen to it, 
 and still I retain my integrity in regard to the 
 great principle that the majority ought to rule. 
 As I said before without farther extending my 
 remarks if the gentleman from Framingham 
 will meet me half way in a compromise, I am 
 willing to go with him cordially ; but I trust that 
 the gentlemen of this Convention who are so 
 much in favor of the plurality system, will not 
 urge me to surrender yet another step by asking 
 my concurrence in any more amendments that 
 may be proposed. 
 
 Mr. LORD, of Salem. I was much amused 
 by the plain spoken, honest speech which came 
 from the gentleman on the other side of the 
 house. I mean the gentleman from Lowell, (Mr. 
 Abbott,) especially when he said that the lion s 
 skin was not one- quarter big enough to cover up 
 what was beneath it. He did not say right out 
 that there was a jackass there. That was not 
 necessary. They have endeavored to patch up 
 this plurality creature, but instead of covering it 
 with the lion s skin, as they intended, their ope 
 rations have only resulted in exposing a greater 
 part of the jackass beneath. 
 
 The gentleman from North Brookfield has 
 accepted tins proposition, under the pretence that 
 he was willing to yield his individual preference 
 to the judgment of the people. Why not put 
 into your Constitution this plurality doctrine, and 
 see whether the people will take it or not ? When 
 the majority are talking about a matter which 
 
566 
 
 ELECTIONS BY PLURALITY. 
 
 [69th day. 
 
 Thursday,] 
 
 LOUD STEVENSON BATES. 
 
 [July 28th. 
 
 they do not desire to be changed, or when they 
 wish to accomplish some end, do they say that they 
 will give the power to the legislature to do it ? 
 No, Sir ; they say that the legislature ought not 
 to be trusted ; and their whole action has been 
 upon this basis, that the legislature are not fit to 
 be trusted with the rights of the people. You 
 have said this very day, in an amendment which 
 you have adopted, that the legislature shall not be 
 trusted upon the question of calling another Con 
 vention, but that the people themselves shall act 
 directly upon it ? What new light is that which 
 has broke in upon the gentleman, that he is so 
 willing to allow the people to take charge of this 
 matter of plurality, and act as they feel disposed, 
 by means of the legislature ? 
 
 Now, Sir, I have no doubt at all that when the 
 enormity of this is exposed, that gentleman will 
 get up and say this certainly is an enormity, but 
 yet it is n t quite so bad as it might have been. 
 And in this manner they will answer every 
 objection that we may make. If we say you 
 have made the House of Representatives as 
 unequal as you could make it, they will reply, 
 what of that, have n t we made the Senate a great 
 deal worse ? If these are to be the arguments 
 employed by the advocates of the various propo 
 sitions which have been made, I must confess 
 they are fully prepared to sustain themselves in 
 any controversy that may arise. But, does it 
 satisfy the people, to say that though we have 
 done wrong, we might have done a great deal 
 worse ? Away then, with this sort of argument, 
 and let us begin to rectify before it is too late to 
 do so. 
 
 Now, Sir, in regard to this proposition, coming 
 as it does from the gentleman from Walpole, I 
 must confess it is much beyond anything I had 
 ever given him credit for ; he has mixed up more 
 elements even than there were at first, and made 
 this more of a mongrel creature than it ever was 
 before. And how is it that gentlemen get up one 
 after the other, and say I go for this proposition 
 because I have been persuaded to trade off such 
 and such proportion of my principle in return for 
 it. I think, says one, that the majority is the 
 correct principle, but my constituents have sent 
 me here to do what is right, but my conscience 
 requires me to stand by the majority of the Con 
 vention. Gentlemen bow with great submission 
 to the people, but yet are unwilling to let the 
 people act upon this matter. I say, give the 
 people their right to consider and decide upon 
 this question for themselves ; adopt the amend 
 ment which my friend from Framingham, (Mr. 
 Train,) proposes, and say that there shall be a 
 plurality unless the people alter it by their legis 
 
 lature. Let the majority and plurality principles, 
 I care not how, be so presented as to give the 
 sovereigns the privilege of choosing between the 
 two for themselves. But, gentlemen are not will 
 ing to let the people pass upon the subject ; the 
 member from North Brookfield, (Mr. Walker,) 
 dares not let the plurality system go before them ; 
 he will not let them decide but through a body 
 that does not represent them. Now, I submit to 
 that gentleman, whether it is not better to let the 
 people act upon this matter for themselves ; is he 
 wiser than they, or does he know their wants 
 better than they do themselves ? While here, if 
 we act in accordance with our own honest con 
 victions as to what is right, and leave to our coii- 
 stiuents to pass upon our doings, in the end, we 
 shall be better satisfied with ourselves, and with 
 the result which we have assisted to produce. 
 
 Mr. STEVENSON, of Boston. I wish to 
 remind gentlemen of the fact that if we pass this 
 resolve, the election will still go to the legislature, 
 unless a majority of the votes be cast for some 
 one or other of the candidates. The amendment 
 proposes to confer upon the legislature the power 
 to alter the Constitution without an appeal to the 
 people. I hope it will not prevail. 
 
 Mr. BATES, of Plymouth. I desire simply to 
 call the attention of the gentleman from Framing- 
 ham, (Mr. Train,) who has been talking about 
 inconsistency, to one fact which appears to have 
 escaped his scrutiny. He has read from the 
 debates of this Convention, as far back as May 
 27th, to show what the opinions of certain gen 
 tlemen were at that date. Now, I wish to refer 
 him to two or three other passages in the proceed 
 ings of the Convention on that day, which he did 
 not read. The gentleman from Boston, (Mr. 
 Hillard,) on that day made the following propo 
 sition : 
 
 " I propose," said Mr. Hillard, " in case the 
 amendment of the gentleman from Plymouth 
 (Mr. Bates,) should not be adopted, to offer 
 another amendment. I make this statement 
 now, because the amendment which I desire to 
 propose may influence the action of the Conven 
 tion upon the particular amendment now before 
 them, and therefore with your leave and that of 
 the Committee, I will state that at the proper 
 time, I shall move to amend the resolution by 
 striking out all after the word < resolved, and 
 insert the following : 
 
 " That it is expedient so to amend the Consti 
 tution as to give to the legislature the power of 
 enacting that in all elections by the people of offi 
 cers under the Constitution, the person receiving 
 the highest number of votes shall be deemed and 
 declared to be elected." 
 
 This, I apprehend, would be giving, in the 
 broadest possible manner, the power to the legis- 
 
69th day.] 
 
 ELECTIONS BY PLURALITY. 
 
 567 
 
 Thursday," 
 
 CHURCHILL TRAIN BATES. 
 
 [July 28th. 
 
 lature to decide that in all elections by the people 
 a plurality should determine the result. This 
 doctrine the gentleman from Framingham this 
 evening repudiates, and has had much to say in 
 favor of consistency upon this question. Now, 
 it may not be improper, as the gentleman is so 
 strongly in favor of consistency, to ascertain what 
 his own views were 011 the occasion referred to. 
 
 In the report of the proceedings of this Con 
 vention, on this same 27th of May, occurs the 
 following language : 
 
 " Mr. TRAIN, of Framingham. I have thus 
 far taken no part in this debate, nor do I desire 
 to do so now. J simply rise for the purpose of 
 suggesting which I shall do before I sit down 
 an amendment to the amendment of the gentle 
 man from Plymouth." 
 
 A little farther on in this same speech, and 
 before the gentleman sat down, he thus alludes to 
 his proposed amendment : 
 
 " I propose that they shall leave it to the legis 
 lature. Where they cannot go the source, let 
 them go as near to the fountain as they can ; if 
 we cannot get the people to pass upon the ques 
 tion, we will leave it in the hands of the legisla 
 ture ; and therefore I propose an amendment to 
 the amendment, to this effect : that all civil officers 
 whose election shall be provided for in the Con 
 stitution, may be elected by a majority or plural 
 ity, as the legislature shall hereafter determine." 
 
 Mr. CHURCHILL, of Milton. I was origi 
 nally, and on principle, and am still, in favor of the 
 majority rule; but, Sir, I shall vote in favor of the 
 proposition of the gentleman from "Walpole ; be 
 cause I think there is a great deal of force in the 
 argument which has been, used regarding the ex 
 pense and inconvenience attending a strict ad 
 herence to that rule hi all cases. The time and 
 expense that the same elections entail upon the 
 people, are arguments of so much force, that 
 they cannot fail to influence those of us who stand 
 on convenience before matter of principle, in this 
 respect. 
 
 I hardly think the gentleman from Salem 
 treated the gentleman from North Brookfield 
 with entire fairness, when he said, in one breath, 
 that he is unwilling, or rather that he dare not, 
 trust this qiiestion to the people, and in the next 
 breath taunts him with trusting part of it, at least, 
 to the people, Sir, I contend that this proposi 
 tion does trust the whole question to the people. 
 It allows the people to adopt the plurality system 
 out and out, in all elections, for it provides ex 
 pressly that several of the officers, senators and 
 others, shall be chosen upon the plurality princi 
 ple ; and that the people, through their legislature 
 may, if they see fit, ordain that all the other 
 
 officers may also be chosen by plurality. Thus, the 
 plurality principle is within the reach of the peo 
 ple ; the very thing they have been contending for 
 here, is within their reach. And yet we behold 
 the most strenuous opposition from all quarters, 
 because the thing does not come in that peculiar 
 shape which suits their views. Sir, I maintain 
 that, on principle, we should have stood by the 
 majority system here, as we should by the dis 
 trict system ; but as it is, to some extent, imprac 
 ticable, the only way to accomplish any reasona 
 ble result is to compromise on some such basis as 
 is proposed here. 
 
 Mr. TRAIN. The Convention has had a 
 laugh at my expense, and I enjoyed that laugh ; 
 for, in truth, the discovery of inconsistency made 
 by the gentleman from Plymouth, is rather more 
 fanciful than real. When the discussion to which 
 he has referred, was going on, the controversy was 
 what it should be here to-night whether we 
 should adopt the majority or the plurality rule. 
 I put it to the Convention then. and if the ques 
 tion were now the same, I should take the same 
 ground that if the question be submitted to 
 the people, whether they will have plurality or ma 
 jority, it should not be left to the legislature to de 
 termine. Well, now the Convention has deter 
 mined that they will submit to the people the 
 question whether they will elect one portion of 
 their officers by plurality or by majority, and will 
 leave the question, so far as relates to the remain 
 der, to the legislature. If they will not leave the 
 whole matter to the people, without reservation, 
 then, I say, leave the whole to the legislature. I 
 maintain, that when you yield the principle, you 
 have no right to send one portion to the people 
 for their decision, and reserve another portion. 
 
 Mr. BATES, of Plymouth. The question on 
 the occasion which has been referred to, was pre 
 cisely what the question is here to-night. It was 
 proposed that certain officers should be elected by 
 a majority, until otherwise ordered by the legisla 
 ture. That was the purport of the amendment 
 proposed by the gentleman from Boston. The 
 gentleman from Framingham got up and said 
 he gave notice that he should move an amend 
 ment, which was the very same as the amend 
 ment now before the Convention, only it went far 
 ther. Now, if it is proposed to leave the election 
 of a part of the officers in the hands of a majority, 
 unless otherwise directed by the legislature, I ask 
 if the principle is not the same as when it was 
 proposed to have all officers so elected, unless 
 otherwise determined by the legislature ? I pre 
 sume it to be precisely the same. There is no 
 escape for the gentleman ; he need not squirm, or 
 dodge. He comes in here, and argues against tne 
 
568 
 
 ELECTIONS BY PLURALITY. 
 
 [69th day. 
 
 Thursday,] 
 
 TRAIN HATHAWAY. 
 
 [July 28th. 
 
 amendment before the Convention, as a matter of 
 principle ; yet I have shown that in the very same 
 page, or the one preceding that from which he 
 has quoted, he proposes an amendment to leave 
 this matter to be regulated by the legislature, pre 
 cisely as the amendment of the gentleman from 
 Walpole, now under discussion, proposes to 
 *Leave it. There is no possible difference in the 
 two cases ; and it is useless for the gentleman to 
 attempt an escape from his position, uncomforta 
 ble as it is. 
 
 Mr. TRAIN. My friend from Plymouth cer 
 tainly misapprehended my ideas on this subject, 
 or else I cannot read. The closing sentence is 
 this : 
 
 " If gentlemen are afraid to leave this matter 
 to the people, I propose that they shall leave it to 
 the legislature. Where they cannot go to the 
 source, let them go as near to the fountain as they 
 can : if we cannot get the people to pass upon 
 the question, we will leave it in. the hands of the 
 legislature, and, therefore, I propose an amend 
 ment to the amendment of the gentleman from 
 North Brookfield, to this effect : That all civil 
 officers whose election shall be provided for in the 
 Constitution, may be elected by a majority or by 
 a plurality, as the legislature shall hereafter deter 
 mine. My idea is, that instead of leaving a por 
 tion of the officers to be elected by the legislature, 
 as suggested by the member for North Brooktield, 
 to leave the whole to the legislature." 
 
 I said, if we could not have the question of 
 plurality submitted to the people, leave it, as the 
 next best thing, to the legislature. Now, I want 
 to have the Convention remember another thing, 
 that my proposition, as well as that of the gentle 
 man from Boston, was to leave to the legislature 
 an open question. I would prefer to leave it to 
 the people to say whether the elections should be 
 by majority or plurality, and leave to the legisla 
 ture to alter it if they choose to do it. Where, 
 then, k-; the inconsistency which the gentleman 
 thinks he has discovered ? 
 
 Mr. HATHAWAY, of Freetown. I do not 
 rise, at this late hour, for the purpose of making 
 an argument. I do not know but we have fallen 
 upon times similar to those we read of in the 
 Good Book, when, to avoid much importunity, 
 the unjust judge granted the prayer of the widow. 
 There is no question that has been so much 
 agitated here as this question of elections by plu 
 rality, since this Convention met. This has been 
 the foremost of all, and it is likely to be the last. 
 
 There have been many matters introduced into 
 the debate this evening that seemed to me to have 
 very little to do with the question. Perhaps it is 
 owing to the obtuseness of my perceptions that I 
 do not see the force of the arguments that have 
 
 been used. It has been said that we have tried 
 the experiment in reference to our representation 
 in congress. I had occasion to say, some time 
 since, that that was a matter entirely beyond our 
 reach. ; one with which neither we nor the people 
 of Massachusetts had anything to do. It is a 
 matter that is settled by the Constitution of the 
 United States, which directs the legislature to 
 prescribe the time, place, and manner of holding 
 elections for members of congress. All that the 
 people have to do with it, is to comply with the 
 directions given by the legislature, to whom the 
 Constitution of the United States has given this 
 power. We have nothing to do in reference to 
 putting in operation that part of the machinery of 
 our government. That is already settled. 
 
 I have had occasion upon this question, hereto 
 fore, to say, in reference to a proposition that had 
 been introduced here, that I did not understand 
 quite so clearly as some of those associated with 
 me do, or pretend to do, the precise nature of the 
 proposition. I have asked several times for the 
 reading of such propositions as were offered in 
 the shape of amendments. Unfortunately, some 
 times, I have not been accommodated. And I 
 have made up my mind, long ago, that I would 
 not ask for the reading of any proposition in fu 
 ture, but I meant always to vote on the safe side, 
 by voting against any proposition that I did not 
 understand. I would inquire of you, Sir, and I 
 put it to every member of this Convention, how 
 shall we stand, if we adopt the amendment 
 of the gentleman from Walpole ? If we look at 
 the proposition as it originally stood, and at his 
 proposition, we shall find a very great discrep 
 ancy a very great inconsistency. The gentle 
 man s proposition is, that until otherwise pro 
 vided, the legislature may enact a law by which 
 these officers may be elected by plurality ; but 
 the law shall not go into operation until one year 
 from the date of its enactment. Then, if you 
 look at the latter part of yoxir constitutional law, 
 where this provision comes in, you will find, that 
 in case the individual voted for does not have a 
 majority of all the votes given, he shall not 
 may he shall be elected by a majority of the 
 legislature, by viva voce vote I mean as to the 
 whole catalogue of officers there named. Well, 
 now, what sort of patch- work is this ? And yet, 
 gentlemen would have us adopt this at midnight, 
 and force it upon the people for their approval. 
 
 But I have another objection, and it has been 
 adverted to by those who have spoken upon this 
 question. It is this : You do not propose, under 
 this amendment, to enact an organic law for the 
 people to pass upon, but you propose to enact an 
 organic law that the municipal corporations of 
 
69th day.] 
 
 ELECTIONS BY PLURALITY, die. 
 
 569 
 
 Thursday,] 
 
 UPTON PERKINS HUBBARD TRAIN LORD BATES. 
 
 [July 28th. 
 
 this Commonwealth are to pass upon. And thus 
 a majority of those municipal corporations, so far 
 as their representation is concerned, is to make 
 your Constitution. 
 
 Mr. UPTON, of Boston. When this debate 
 commenced, I made a suggestion, in good faith, 
 that the yeas and nays should not be called on 
 ordering the previous question. Now, I am per 
 fectly willing to forego any remarks I might de 
 sire to make upon the subject under discussion, 
 if gentlemen will allow the question to be now 
 taken on the first amendment. There must be 
 an end to the debate, at some time or other, and 
 it appears to me we had better close it now. 
 
 Mr. BIRD, of Walpole, accepted the amend 
 ment of the gentleman from Plymouth, as a mod 
 ification of his own, and made a farther modifica 
 tion in accordance with the suggestion of the 
 gentleman from Boston. 
 
 Mr. PERKINS. It appears to me, that this 
 subject has been pretty well argued, and that it is 
 about time to put it to the people, and let us see 
 how it will work. We have got rather a compli 
 cated proposition before us, and the longer it is 
 considered and debated, the more complicated it 
 becomes. I have always thought, until this eve 
 ning, that I would vote for the amended Constitu 
 tion. I do not say that I will not now ; but let me 
 tell gentlemen, that I doubt very much whether it 
 will be accepted by the people. They will hardly 
 be able to understand what it means. 
 
 Mr. HUBBARD, of Boston. I wish to call the 
 attention of the Convention to one single provision 
 of the amendment, which seems to me very ob 
 jectionable. I allude to the amendment of my 
 colleague in regard to the repealing provision. 
 Power is given to the legislature to adopt the 
 plurality rule. The majority rule is to prevail, 
 until otherwise provided. Now, my impression 
 is, that having exercised the power once, they 
 will have no farther control. I should like to 
 have it withdrawn from the control of the legis 
 lature. I therefore move that that part be 
 stricken out. 
 
 The motion was not agreed to. 
 
 The question being on the amendment proposed 
 by the gentleman from Walpole, as modified, 
 
 Mr. WEEKS asked for the yeas and nays. 
 
 They were not ordered. 
 
 The amendment was, upon a division ayes, 
 77 ; noes, 62 adopted. 
 
 The question being on the final passage of the 
 resolves, as amended, 
 
 Mr. TRAIN, of Framingham. I give notice 
 that I wish to offer an amendment, but I do not 
 wish to offer it at this late hour. Let it go over 
 until to-morrow morning. 
 
 39 s 
 
 Mr. LORD, of Salem. The mover of the 
 amendment which has just been adopted, has 
 found it necessary to make three or four altera 
 tions in his amendment ; I therefore suggest, that 
 it had better not be finally acted upon to-night, 
 but that the vote be taken five minutes after the 
 subject shall be taken up to-morrow. 
 
 Mr. BUTLER. I think the proposition is a 
 reasonable one, and if no one else makes the mo 
 tion, I will move that the question on the final 
 passage of the amended resolves, be taken at ten 
 o clock, on Friday morning. 
 
 Mr. DAVIS, of Plymouth. I hope the motion 
 will not prevail. It has been the understanding, 
 that if the debate was allowed to go on, the ques 
 tion might be taken to-night, on the amendment, 
 and on the final passage of the resolves, without 
 the yeas and nays, and many gentlemen have 
 stayed here for that purpose. 
 
 Mr. TRAIN. The gentleman seems to think 
 we are under an obligation to vote upon the final 
 passage of these resolves to-night. If so, I for 
 one, am willing to withdraw all opposition. 
 
 Mr. WHITNEY, of Conway. I think the 
 proposition that we will take the question at ten 
 o clock, is a fair one, and for one, I am decidedly 
 in favor of adjourning. 
 
 Mr. ELY, of Westfield, moved that the Conven 
 tion adjourn. 
 
 The motion did not prevail. 
 
 The question was taken on the final passage of 
 the resolves respectively, excepting the fourth, 
 which had been amended by the adoption of the 
 amendment of the gentleman from Walpole, and 
 they were passed. 
 
 Mr. BUTLER renewed his motion, that the 
 question be taken on the final passage of the 
 fourth resolve, as amended, this (Friday) morn 
 ing at ten o clock. 
 
 The motion was agreed to. 
 
 Reports from a Committee. 
 
 Mr. BATES, of Plymouth, from the Commit 
 tee on Reporting and Printing, submitted two 
 Reports, which, without being read, were placed 
 upon the Orders of the Day. 
 
 Mr. OLIVER, of Lawrence, moved, that the 
 Convention adjourn until half past eight o clock. 
 
 Mr. CHURCHILL suggested that a great pro 
 portion of the members would not be apprized of 
 the change of the hour of meeting. 
 
 Mr. OLIVER withdrew his motion, and moved 
 that the Convention adjourn. 
 
 The motion was agreed to, and the Convention, 
 at half past one o clock, adjourned until nine 
 o clock, A. M. 
 
570 
 
 HOUSE OF REPRESENTATIVES, &c. 
 
 [70th day. 
 
 Friday,] 
 
 LIVERMORE BATES MORTON. 
 
 [July 29th. 
 
 FRIDAY, July 29, 18-53. 
 
 The Convention assembled pursuant to ad 
 journment, and was called to order by the Presi 
 dent, at nine o clock. 
 
 Prayer by the Chaplain. 
 
 The journal of yesterday was read by the Sec 
 retary. 
 
 Leave of Absence. 
 
 The PRESIDENT read a communcation from 
 Mr. Crowell, of Dennis, asking for leave of ab 
 sence, for the remainder of the session, on ac 
 count of sickness in his family. 
 
 On motion by Mr. DAYIS, of Worcester, 
 leave was granted. 
 
 The Pay Roll. 
 
 Mr. LIVERMORE, of Cambridge, from the 
 Committee on the Pay Roll, reported the follow 
 ing order : 
 
 Ordered, That the pay accounts of members, 
 for attendance and travel, be made up, including 
 Monday next. 
 
 Mr. LIVERMORE. I believe it is generally 
 understood that this Convention can adjourn to 
 morrow, although it will, of course, be at a late 
 hour, and not in season to enable members re 
 siding at a distance to reach their homes before 
 Monday next. It is possible that our session 
 may be protracted so as to include a part of the 
 day on Monday. It is expected, however, that 
 we can adjourn to-morrow night. But it must 
 be perfectly understood, by all the members of 
 this Convention, that some time is necessary for 
 the Committee on the Pay Roll to make up the 
 roll, which will embrace some four hundred and 
 twenty names. I have offered this order at this 
 time, in order to have the pay roll made up to 
 morrow in season to have a warrant drawn upon 
 the treasury, by the Governor and Council, who, 
 I understand, will be in session to-morrow after 
 noon, for that purpose. The order includes 
 Monday next, because the members will, un 
 doubtedly most of them, at least be detained 
 Jiere over Sunday, and cannot reach home until 
 Monday. It is the usual custom, I believe, in 
 (he legislature, to make up the pay roll including 
 Sunday, when they adjourn on Saturday. 
 
 The question being on the adoption of the 
 -order, 
 
 Mr. BATES, of Plymouth, moved to amend 
 the same, by adding thereto the following words : 
 
 And no member shall be entitled to pay be 
 yond that time. 
 
 The amendment was agreed to, and the order 
 as amended, was adopted. 
 
 Representation. 
 
 The Convention proceeded to the consideration 
 of the Orders of the Day, the first item being 
 the resolve submitted by the gentleman from 
 Taunton, (Mr. Morton,) respecting the mode of 
 submitting the question of representation to the 
 people. 
 
 The resolve was read, as follows : 
 
 Resolved, That the Committee " 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 rati 
 fication," be instructed so to prepare the amend 
 ments in relation to the House of Representa 
 tives, as to submit to the people the following 
 questions : 
 
 First. Shall the twelfth amendment in the 
 present Constitution be abrogated ? 
 
 Second. Shall the system of representation by 
 towns, in the form accepted by the Convention, 
 be ratified and adopted as a substitute for the 
 said twelfth amendment ? 
 
 Or, shall the system of representation by dis 
 tricts, in the form hereto subjoined, be ratified 
 and adopted as a substitute for the twelfth amend 
 ment aforesaid ? 
 
 And if a majority of the legal voters voting 
 thereon, shall be in favor of abrogating the said 
 twelfth amendment, then the one of the two 
 proposed systems of representation which shall 
 receive the greatest number of votes, shall be 
 deemed and taken to be ratified, and shall become 
 a part of the Constitution, in lieu of the twelfth 
 amendment of the present Constitution : provided, 
 that if the two proposed systems shall receive an 
 equal number of votes, then the system agreed 
 upon by the Convention, shall be deemed and 
 taken to be ratified, and shall become a part of 
 the Constitution, as above stated. 
 
 [Proposed system of Representation by Districts, before re 
 ferred to.] 
 
 The House of Representatives shall consist of 
 two hundred and sixty- one members. Said mem 
 bers shall be apportioned among the several coun 
 ties, as nearly as possible, according to the number 
 of legal voters in each. 
 
 The Senate, at its first session after the ratifi 
 cation of this amendment, and at its first session 
 after each decennial census, shall divide each 
 county into such representative districts, com 
 posed of contiguous territory, as they may deem 
 expedient, so that the basis of each representative 
 shall be the same number of legal voters, as 
 nearly as possible, without the division of towns, 
 or the wards of cities : provided, that no district 
 shall be so large as to entitle it to more than three 
 representatives ; and provided, that Nantucket and 
 Dukes County, shall each form one district, and 
 be entitled to at least one representative. 
 
 Mr. MORTON, of Taunton. I will ask the 
 attention of the Convention for a very short time. 
 They may be sure I shall not detain them long 
 I would say less than fifteen minutes, but I be- 
 
70th day.] 
 
 HOUSE OF REPRESENTATIVES. 
 
 571 
 
 Friday,] 
 
 MORTON. 
 
 [July 29th. 
 
 lieve it would be safer to go on and say what I 
 have to say, in as few words as possible, without 
 making any promise. It is impossible under the 
 rule and I do not object to it to go into any 
 argument upon the general subject ; and I will 
 therefore state as briefly as possible, my reasons 
 for presenting the resolve before the Convention, 
 and leave the question to their consideration and 
 decision, without going into any discussion of the 
 principal matter. 
 
 I had hoped that this proposition would come 
 up under rather more favorable auspices ; and I 
 must confess, that at the present time there is but 
 one unpropitious circumstance, that is, the late 
 ness in the session, and the consequent necessary 
 impatience of members. 
 
 I think there is much in the conciliatory ten 
 dency and fairness of the proposition to recom 
 mend it to the favorable consideration and the 
 adoption of the Convention. I must hope that, 
 even at this late period of the session, gentlemen 
 will give me their attention upon this proposition 
 for ten or fifteen minutes, and I have no doubt 
 they will. 
 
 Mr. President : This resolve applies to the most 
 interesting and important subject which has been 
 before the Convention during its session, one 
 which has been most fully discussed, maturely 
 considered, and one upon which, as might be ex 
 pected, there is very much difference of opinion. 
 The various projects which have been offered, have 
 been thoroughly investigated, and, I presume, 
 every gentleman has made up his mind in relation 
 to them. One project is founded upon town 
 representation, and the other upon representation 
 by districts. The advantages and disadvantages 
 of these two systems have been fully examined ; 
 and if they had not, I have no time to discuss 
 them now. 
 
 There is a settled difference of opinion in rela 
 tion to these systems, among the members of the 
 Convention. A portion of them the majority 
 are in favor of representation by towns ; and a 
 minority a respectable minority, in numbers at 
 least are in favor of representation by districts. 
 There is, then, these settled and well-matured 
 opinions, differing as they do, between these two 
 sections of the Convention, which no one can 
 expect to change. But, I hope, however, and 
 believe, there is a disposition upon each side to 
 conciliate and yield a little, for the purpose of 
 bringing their opposing views nearer together. 
 will not say compromise, for it is a word I dis 
 like ; it is sometimes used for proper and honest 
 purposes, and then it is well enough ; but it is so 
 often employed to cover up log-rolling intrigue 
 and fraud, that I dislike very much to use it at 
 
 all. I hope, however, there is a spirit of concili 
 ation among us which will enable us to meet 
 upon some neutral ground, without much yield 
 ing of opinion upon either side. 
 
 I suppose that every member of the Convention 
 s willing that our constituents should have such 
 a mode of representation as they like. It has 
 been said that we here represent the whole people 
 of the Commonwealth, and that we are, therefore, 
 virtually an assembly of the whole people. I 
 suppose in some sense that may be true, but in 
 others it is not, because if it were, our decision 
 upon the questions before us would be final. I 
 maintain, therefore, that no decision of ours has 
 directly, or by implication, or in any other way, 
 indicated that the people would prefer the town 
 system to the district system. 
 
 Now, I propose, by these resolves, to submit 
 the whole question directly to the people. I 
 suppose I may say, for both sides, that the mem 
 bers of the Convention are willing that the people 
 should settle the question. I trust there is no 
 gentleman present who would be disposed to say 
 that we shall arbitrarily determine this question 
 for the people. I suppose they are willing to al 
 low the people to express their wishes upon the 
 subject, and that a majority of the people should 
 decide the question finally. If that is really the 
 desire of the Convention if they really wish the 
 people to settle the question what system of rep 
 resentation they shall have, I have now presented 
 a scheme by which that wish may be easily and 
 fairly accomplished. Here is now an opportunity 
 by which, so far as it is possible to accomplish it, 
 every member can be exactly satisfied. 
 
 I am not tenacious as to the details of a system 
 of representation, if it provides for an equal, right 
 eous representation. But these two systems have 
 been matured as far as we have been able, and I 
 now desire that the people should have the op 
 portunity of judging between the two, and of 
 deciding whether they will have the district sys 
 tem or the town system. If this is not a reason 
 able proposition 1 if it is not one that will com 
 mend itself to every gentleman, and meet the 
 wishes of every one, 1 certainly have mistaken 
 their reasonable wishes, and the desires which 
 all have earnestly professed. 
 
 It really seems to me, that if gentlemen wish, 
 to have the people judge of the relative merits of 
 the two systems, here is an opportunity, which 
 presents no obstacle in the way. The motion 
 may be submitted to the people, and they can 
 take town representation or district representa 
 tion, just as they choose. 
 
 If gentlemen want the Convention to decide 
 the matter finally, and to deprive the people of 
 
572 
 
 HOUSE OF REPRESENTATIVES. 
 
 [70th day. 
 
 Friday,] 
 
 MORTON. 
 
 [July 29th. 
 
 the opportunity of expressing their opinions upon 
 the subject, they can do it by voting down, this 
 proposition, and by refusing to submit the ques 
 tion to them. If, on the other hand, we are really 
 willing and desirous that our constituents all over 
 the Commonwealth should be allowed to say yes 
 or no to this proposition, why certainly we have 
 now an opportunity to do it. I am at a loss to 
 find any reasonable objection to such a proposi 
 tion, and therefore I know of no argument to 
 combat upon this subject. 
 
 But there are some things which I think spe 
 cially commend these resolves to our favorable 
 consideration and adoption. It does seem to me 
 a measure of conciliation between the different 
 sections of the Convention. It presents itself in 
 that peculiar form that both the minority and the 
 majority may be gratified. It is an instance, very 
 rarely occurring, in which both sides may be suc 
 cessful. The minority would be satisfied with 
 an opportunity of presenting their scheme to the 
 people, and as the action of the Convention can 
 avail nothing of itself, the majority should be sat 
 isfied with the same opportunity of presenting to 
 the people their plan, with the indorsement of 
 the adoption by the Convention. If the majority 
 are willing that the people should express their 
 minds upon the merits of the two systems, I see 
 no possible objection that they can have to passing 
 the resolves. 
 
 But there are other considerations which are 
 entitled to much more weight. There is not only 
 a difference of opinion on the merits of the differ 
 ent systems between the different sections of the 
 Convention, but the members seem to differ 
 widely, very widely, as to the relative favor with 
 which each of the different systems is regarded 
 by the people of the Commonwealth. All are, I 
 doubt not, honest and sincere in their convictions ; 
 each side seems to be fully persuaded and entirely 
 confident that the people are with them that the 
 people prefer their system. I have no doubt, as 
 I remarked, that both are equally honest. In 
 my opinion and it is worth but little if this 
 question goes to the people, they will prefer the 
 district system for the sake of equality of repre 
 sentation, and of justice and fairness. Other gen 
 tlemen are equally confident that the people will 
 prefer town representation. Let the people decide 
 between us. This is all we ask. 
 
 There are a portion of the members of this 
 Convention who have very strong objections to 
 town representation ; who think it unreasonable, 
 unequal, and unjust. There are individuals in 
 and out of this Convention, whether they are 
 right or wrong in their opinions, who think it so 
 unrighteous they cannot vote for a Constitution 
 
 containing it. If, therefore, the Constitution is 
 submitted to the people without this proposition 
 if they are compelled to vote upon only one system 
 of representation I submit there is great dan 
 ger that they will vote against the whole, and 
 that all our labor will be lost. There is great 
 danger that the people will prefer the old system 
 to the new, so that gentlemen will not only lose 
 their new system of town representation, but they 
 will also fail in the accomplishment of many other 
 objects which they have in view, and which the 
 people desire. But, on the contrary, if you sub 
 mit these alternative propositions to the people, 
 you will gain very many votes for the whole 
 work. The friends of each system would suppose 
 that his favorite system w r ould prevail, and there 
 fore would vote for the whole. Many who prefer 
 the district system will vote for the whole, for the 
 purpose of obtaining their object, and many 
 others who prefer the town system, will vote for 
 the whole, for the purpose of obtaining their sys 
 tem of representation. This, therefore, is a very 
 strong argument in favor of submitting this prop 
 osition to the people. Deny the right of the 
 people to select for themselves, and you will 
 arouse a spirit which will reject the whole. 
 
 There are one or two other facts which I think 
 will recommend this proposition very strongly 
 and I believe the facts to which I am about to 
 refer are well known to the Convention. I have 
 not made the computation myself, but I am told 
 that it is susceptible of demonstration, that in no 
 one instance has a majority of the people of this 
 Commomvealth, as represented in this Conven 
 tion, voted in favor of a system of town repre 
 sentation. Those who have examined the subject 
 and I understand it has been explained in the 
 Convention have ascertained to a certainty that 
 whenever this matter of town representation has 
 been presented in this Convention and voted 
 upon, in no one instance have one-half, or any 
 thing near one-half of the people of the Common 
 wealth, by their representatives upon this floor, 
 voted for it. If you will compute the number of 
 the constituents, upon the strongest vote given 
 here in favor of town representation, the constit 
 uents of the gentlemen who voted for that system 
 will be found to be less, by more than fifty thou 
 sand, than one-half the people of the Common 
 wealth, so that those who did not, by their repre 
 sentatives, vote for it, exceeded those who did, by 
 more than one hundred thousand people. 
 
 Now, if you will carry that computation a little 
 farther, and see how many voted, through their 
 representatives, in favor of a district system, you 
 will find in some respects a similar result, though 
 in other respects you will find a wide difference. 
 
70th day.] 
 
 HOUSE OF REPRESENTATIVES. 
 
 573 
 
 Friday,] 
 
 MORTON PHELPS. 
 
 [July 29th. 
 
 Although on no occasion has one-half of the 
 people of the Commonwealth, through their rep 
 resentatives, voted for the district system, yet, if 
 you look at the number of the constituents of the 
 respective parties, you will find that those who 
 voted for the district system represented more 
 than thirty- five thousand people more than those 
 who voted against it. 
 
 Now, under these circumstances, ought it not 
 is it not entirely reasonable is it not entirely 
 just, that this thing should be submitted to the 
 people to say whether they will decide in favor of 
 those who advocate the town system, or those 
 who advocate the district system ? Will the mi 
 nority, because they have by unequal representa 
 tion the control of this Convention, exercise the 
 power which accident has given them, not only to 
 dictate to the majority here, but to unjustly and 
 unfairly deprive the people of the power to act on 
 the system of the majority, and compel them to 
 take the system of the minority or nothing ? I 
 will not believe until I see it done. 
 
 These are some of the reasons, without going 
 into the general merits of the question, why I 
 think we should submit this question to the 
 people. There are some otber reasons, however, 
 which might be presented. We have had a pro 
 tracted session ; we have had discussions upon a 
 great variety of subjects upon which there has 
 been a great variety of opinion, and the opinions 
 entertained by gentlemen upon the different sides 
 of the questions that have been before us, have 
 been adhered to pertinaciously ; but it has given 
 me great pleasure to notice the amenity of deport 
 ment and debate that has been observed, the 
 suavity of manner and courtesy which has pre 
 vailed between the members of the Convention. 
 I think we may be proud of the dignity and de 
 corum of our discussions, and the conciliatory 
 disposition of which members who advocated 
 pertinaciously, perhaps their different opinions, 
 have uniformly manifested towards each other. 
 I am happy to be able to say, that during the 
 whole of our proceedings there has been that de 
 corum, that gentlemanly deportment, that parlia 
 mentary regard for rules and orders, which is a 
 prominent characteristic of a patriotic, intelligent, 
 and high-minded body. I am told, Mr. Presi 
 dent I am glad I did not witness it that upon 
 one occasion the debate became a little squally. 
 I believe that no voyage, however successful and 
 prosperous, and however happy the passengers 
 and seamen may have been, was ever brought to 
 a close without some clouds. Indeed, a little 
 rough weather is quite necessary to break the 
 monotony, and to give interest to the voyage. 
 I am told that upon a recent occasion, the very last 
 
 evening, there appeared some threatening clouds 
 which interrupted the composure, and disturbed, 
 to some little extent, the pleasant intercourse 
 which had heretofore prevailed. But I am de 
 lighted to know that, like all other squalls, it 
 cleared off, and was succeeded by sunshine and 
 fair weather, the more pleasant for having been 
 interrupted. I hope we shall be able to carry this 
 out till the close of our labors, and that we shall 
 have nothing but the kindest feelings towards 
 each other. 
 
 Now, in relation to the resolves before the Con 
 vention, let us meet the subject fairly and favor 
 ably. Let us submit the question to the people. 
 No one can lose anything by it, unless it be an 
 unjust advantage. We have important reforms 
 Avhich we all wish the people to adopt, some upon 
 which we are pretty generally agreed, and others 
 upon which there is much difference of opinion. 
 But, Sir ,let us conciliate upon this great question ; 
 let us submit this to the people, and then, I trust, 
 the others will meet a favorable reception. So 
 far as our labors have terminated for good, the 
 people will ratify them, and if in any respect they 
 have been injudicious, the community will sift 
 out the chaff and save the wheat. At any rate, I 
 hope we shall impress upon the minds of the 
 community that we desire to recommend to their 
 fuvorable consideration, the labors of the Conven 
 tion. 
 
 I will say, in conclusion, that I have very 
 strong fears that unless upon this all-important 
 subject, in which we all feel so deep an interest, 
 which we all consider so vital to the welfare and 
 increasing prosperity of the Commonwealth, I 
 say, that unless we concur in some proposition by 
 which the subject may be thrown open for the 
 consideration and decision of the people, I fear 
 our whole labors may be lost. Let us give them, 
 what I am sure we all desire, a system of repre 
 sentation that shall be in exact conformity with 
 the wishes of the community. [Here the hammer 
 fell.] I have watched the clock, and was just 
 going to add that I was very glad to conclude 
 what I had to say without the interposition of the 
 President s hammer. 
 
 Mr. PHELPS, of Monroe. Mr. President: 
 I feel a degree of reluctance to occupy the time of 
 the Convention under the circumstances in which 
 we find ourselves this morning. After the able 
 and eloquent speeches which we have had, and 
 the instruction we have received, it seems almost 
 a work of supererogation for me to attempt to en 
 lighten this Convention ; and especially do I feel 
 as though I could expect to receive but little 
 attention, when the pay roll is about to be made 
 up, and there seems to be considerable interest in 
 
574 
 
 HOUSE OF REPRESENTATIVES. 
 
 [70th day. 
 
 Friday,] 
 
 PHELPS. 
 
 [July 29th. 
 
 that matter. But if I could gain the attention of 
 the Convention for a few moments, I should be 
 very glad to do it, inasmuch as I represent one of 
 the small towns, which has a deep interest in the 
 result of this question relating to the basis of the 
 House of Representatives as great, perhaps, as 
 any town can have. Nevertheless, I made up 
 my mind, when this discussion commenced, that 
 I would not say a word upon the subject. And 
 I would have adhered to that determination, had 
 it not been for certain ideas advanced by gentle 
 men on both sides of the question, and especially 
 the idea advanced by the gentleman who repre 
 sents Wilbraham, when this question was up be 
 fore. I am sorry that I do not see that gentleman 
 in his seat at the present time. He advanced an 
 idea which has gone to the country, and gone upon 
 the record, giving an impression upon the mem 
 bers from the small towns which is rather un 
 pleasant. That gentleman said that if the 
 members from the small towns did not come 
 to the rescue and help hold up the hands of 
 Moses, he should have to vote for the district 
 system. That statement has gone upon the 
 record, and to the country, audit implies that the 
 small towns have some Moses here to take care of 
 their interests, or else their interests will not be 
 taken care of. I do not believe that gentleman 
 meant what he said ; but it is upon record, and it 
 will have the same effect, as it goes out to the 
 country. That gentleman, I suppose, argued the 
 question of town representation as a principle ; 
 and I never knew that gentleman forsake what 
 he considered a principle, in regard to any matter 
 whatever. 
 
 Sir, it seemed rather hard, after that gentleman 
 had become as it were a sort of acknowledged 
 leader for the small towns, and after he had 
 acknowledged our right in the disputed conflict, 
 and led us on to victory, and the enemy began to 
 scatter in all directions, just because we made one 
 false step, to have the general faco about and say : 
 " Soldiers, if you do that again, I will throw up 
 my commission, and go over to the enemy and 
 enlist as a private soldier." 
 
 The members from the small towns have occu 
 pied but a small part of the time of this Conven 
 tion, comparatively ; and if any apology is wanted, 
 I would say for myself, and I might for many 
 others, that one reason why the members from 
 the small towns have not said more in this Con 
 vention, is because speech- making is not their 
 trade or their occupation. They came here with 
 the intention of voting according to the best of 
 their judgment, and only talking when it was 
 actually necessary ; to hear all that was said on 
 all sides, and making up their minds so as to vote 
 
 understandingly, and in a manner to meet the 
 views of their constituents, and accomplish the 
 great object for which this Convention was called. 
 
 Another reason why they have not spent the 
 time in speaking upon many questions, is, that 
 there have been plenty of advocates among all 
 parties gentleman who knew how to talk, who 
 wanted to talk, and did talk. Having plenty of 
 advocates, we thought it not necessary to spend 
 the time in speech-making upon any question 
 whatever. If this is not apology enough, I would 
 say, for one, that after hearing some fifteen or 
 twenty sixty-four pounders, one after another, 
 fired off in regular succession, which had been 
 loaded to the muzzle and rammed down with the 
 iron ramrod of intellect, by men of great ex 
 perienceafter hearing the booming of those 
 mighty cannon, I could not expect to accomplish 
 much by throwing up fire crackers. 
 
 After the chairman of the Committee who 
 made thus Report had made his candid, able, and 
 telling argument upon this question, and in favor 
 of town representation, we were satisfied to rest 
 the matter there for the time being. But that 
 gentleman was soon assailed and accused of 
 selfishness ; figures were made and results an 
 nounced, showing, as they said, great injustice 
 and inequality. Then, Sir, came forward the 
 untiring, energetic members from Lowell, and 
 they offered to sacrifice, upon the altar of princi 
 ple, a part of their own power, to preserve town 
 representation. But here it soon became evident 
 that there must be a yielding on both sides. We 
 of the small towns were asked to meet them on 
 some ground of compromise. Yes, Sir, gentlemen 
 from both sides came and urged the members from 
 the small towns to yield something, and give up 
 some portion of their representation, and enter into 
 what was called a compromise. We did so ; and 
 over fifty towns consented to yield one-half, so as to 
 be represented every other year. Well, Sir, what 
 thanks did we get for that ? The first thing they 
 did was to twit us of surrendering our principle. 
 Yes, Sir, they tell us we abandoned our princi 
 ple ; and, having no principle to stand upon, they 
 very politely ask us to come over to the district 
 system. After each of us had consented to be 
 come half a man, or we had yielded up one-half 
 of our representation, we supposed we might ask 
 something from the other side. 
 
 The next thing we hear from them is, that it 
 takes three men in Boston to equal one in the 
 country ; and they very gravely ask, is it right 
 that one man in the country should equal three 
 in the city ? That question has been repeated 
 here time and again. 
 
 I would now ask gentlemen who opposed the 
 
70th day.] 
 
 HOUSE OF REPRESENTATIVES. 
 
 575 
 
 Friday,] 
 
 PHELPS. 
 
 [July 29th. 
 
 calling of this Convention, if they were satisfied 
 with the existing Constitution ? That is a ques 
 tion which I wish to put distinctly to gentlemen, 
 whether they were satisfied with the present Con 
 stitution? I take it for granted they were 
 satisfied ; because, if they were not satisfied, why 
 did they not vote for calling the Convention ? 
 
 I now come to the question of inequality, and 
 I will answer that question by asking another. 
 Is it right for one man in the city of Boston to be 
 made equal to two hundred and twenty men in 
 the country ? I wish gentlemen who opposed 
 calling this Convention, to understand that I 
 consider that they were satisfied with the existing 
 Constitution ; and now I ask them if it is right, 
 as that Constitution provided, that one man in 
 Boston should be considered equal to two hun 
 dred and twenty in the country r For that is the 
 fact under the present Constitution. My proof is 
 this : Every legal voter in the city of Boston has 
 a right to vote for forty-four representatives, every 
 year casting forty-four votes. Well, Sir, I have 
 the right to cast one vote once in five years for a 
 representative so that they can vote five times 
 forty-four times while I vote once. Now, I ask 
 if that is right ? We have not heard a word of 
 complaint on their part on account of its not being 
 right, though it is beyond all dispute a fact that 
 one man in Boston equals two hundred and 
 twenty in some of the small towns. 
 
 After having voted down proposition after prop 
 osition on the districting system and the last time 
 by over one hundred majority then the gentle 
 man from Taunton proposes to put in his old re 
 jected claim, a claim which we had time and again 
 declared we would not indorse. With all due re 
 spect to the gentleman who introduced it, I con- 
 eider it a great absurdity. 
 
 Does the gentleman wish to carry out the prin 
 ciple ? Then why does he select this particular 
 and take no other ? Why take up a proposition 
 which has been voted down by so large a major 
 ity, and say nothing about other matters which 
 were passed with a very close vote ? Why not 
 send out the whole judiciary question in all its 
 bearings, and let the people say whether they will 
 have the judges elected or appointed whether 
 they will have the tenure of their office five, 
 seven, ten, or fifteen years, or for life ? HOAV do 
 we know how the people would like to have it ? 
 Is he afraid to trust the people ? If not, then let 
 them have their choice. Then send an alternate 
 proposition concerning the Council, and let the 
 people say whether they will have them elected 
 or appointed. There is a great difference of opin 
 ion as to which is the true principle, the majority 
 or plurality. Why do the friends of plurality, 
 
 who have talked so long and loud upon the sub 
 ject, ask leave to send both propositions to the 
 people, so that the people can have what they 
 want ? Why not say to the people, and done 
 with it, that their delegates cannot agree, unani 
 mously, upon anything ; and therefore they, the 
 dear people, may look over our discussions and 
 vote upon all the propositions, and those that 
 receive a majority of votes shall become part of 
 the Constitution. Sir, the people sent us here 
 for no such purpose as this. We were sent here 
 to say what alterations were wanted, to discuss 
 the matter, then vote upon it, and whatever the 
 majority voted for, send to the people ; and if it 
 suited them they would accept it ; if not, they 
 would reject it. Sir, they did not send us here 
 to get up a proposition for districting the State, 
 and send it back to them, saying that we rejected 
 it in Convention by a very large vote, and we 
 thought it a miserable concern ; nevertheless, we 
 did not know but the people might take a fancy 
 to it. So we concluded that if you wanted it, 
 you might have it. Mr. President, I for one, 
 cannot think the people will thank us for pelting 
 them with rotten eggs. 
 
 Not a word was said about a district system, 
 before the calling of this Convention. No, Sir ; 
 but the argument was : see to it, you of the small 
 towns, go for the Convention, that you may not 
 be annihilated ; now is your last chance to pre 
 serve town representation. That was the argu 
 ment. Now, where are those gentlemen who 
 threw the documents all over the country, calling 
 upon us to take our last chance and be saved \ 
 Sir, I trust that they are here, and ready to tell 
 by their votes what they have told with their 
 mouths. I trust, Sir, that this project of the 
 gentleman from Taunton will be rejected, with. 
 as much unanimity as the others have been. It 
 is high time that we said less and did more. We 
 have already remained here longer than it was 
 expected we should. The people are getting im 
 patient, and no one can blame them. If we had 
 discussed nothing but what was reasonably ex 
 pected we could carry, and had confined ourselves 
 to the question before us, we might have been at 
 home long ago. 
 
 But, Sir, not only the fugitive slave law, but a 
 variety of other subjects have been discussed, that 
 had no relation to our duties here. Sir, mem 
 bers from the small towns will remember with 
 gratitude, not only the able and persevering mem 
 ber for Erving, (Mr. Griswold,) but also the 
 untiring exertions of the very able delegate from 
 the city of Lowell, (Mr. Butler,) and the mild, 
 pleasant, and able arguments of the learned mem 
 ber from Worcester, (Mr. Earle,) the musical and 
 
576 
 
 HOUSE OF REPRESENTATIVES. 
 
 [70th day. 
 
 Friday,] 
 
 WHITNEY. 
 
 [July 29th. 
 
 earnest arguments of the gentleman from New 
 Bedford, (Mr. French,) and many others whom 
 it is not necessary to indicate by name. 
 
 Mr. WHITNEY, of Boylston. I wish to say 
 a word or two on the proposition which is now 
 submitted. It seems to me to be a very extraor 
 dinary proposition. It amounts to this simply : 
 that inasmuch as the large towns and cities have 
 got precisely what they want, they turn round 
 and ask us in tbe small towns to accept what we 
 do not want. Why cannot gentlemen be satisfied 
 with having their own way in the cities and large 
 towns ? If you are districted as you wish to be 
 in the cities and large towns, why do you wish to 
 have the small towns put the rope around their 
 own necks and be drawn up to what they do not 
 want ? It seems to me to be a very strange prop 
 osition that we of the small towns are to come 
 here and give the large towns what they want, 
 and then put the rope upon our necks and put the 
 other end in their own hands, and let them hang 
 us up to kick. That is the whole of the proposi 
 tion. I think the cities and towns should be 
 satisfied if they have got all they want. Cannot 
 they permit that Mordecai shall sit at the king s 
 gate if they can have all they desire, until they 
 strangle him upon their gallows ? I think we 
 will not consent to it. But if the Convention, 
 contrary to what has been expected all along, 
 should permit this double proposition to go forth 
 to the people, I wish to amend it. I have a prop 
 osition or two which I wish to have go to the 
 people. Now, with all due deference to the 
 learning and judgment of the delegate from Taun- 
 ton, I must be permitted to say that I think the 
 enfranchisement of one- half the people of the 
 Commonwealth, right straight out, is of more 
 consequence than a little inequality which may 
 exist now. And I think the disfranchisement of 
 five hundred, either in the city or country, is of 
 more importance than these side issues where 
 there is a little inequality. 
 
 I wish to say one word on the subject of of 
 ficial oaths, whether they shall be abolished. I 
 wish that question to go out among the questions 
 which are to go to the people. And, in the sec 
 ond place, I wish the word " male " to be stricken 
 from the qualification for voting, in the Consti 
 tution. I have an inkling that the people are a 
 little ahead of the Constitution in that respect. 
 They are satisfied that no good comes from swear 
 ing, and that no evil would come from striking 
 out the word " male." I wish it to go to the 
 people. I will not say that I shall be satisfied 
 with their decision, because I will not be satisfied 
 with anything that is wrong, whether it is done 
 by a million or by one man. I may submit to it. 
 
 I am not satisfied with the decision that eighteen 
 millions may trample on the rights of three mil 
 lions. I say it is wicked and cowardly, and we 
 have no right to do it, either as Democrats, as 
 Christians, or as men. 
 
 I wish to say one word as to the limitation of 
 the exercise of power by majorities. There is a 
 limitation of majorities. They may not do every 
 thing. You may refuse my proposition here, but 
 suppose this Convention say I shall be hung 
 on the Common, have they a right to do it, or 
 have all the men in Massachusetts a right to do 
 it, or have all the men in the Union a right to do 
 it ? I say no, and I do not submit to it. Sup 
 pose you act on the question of my liberty. 
 Without my being convicted of any crime, have 
 you a right to take away my liberty ? I say no. 
 If every man in Massachusetts is engaged in 
 doing it, would that make it right ? I say no ; 
 and if the whole Union engage in it, I still say 
 no. I feel that I have a right to liberty and life, 
 and there is no principle in democracy or religion, 
 which will authorize you to deprive me of them. 
 If there is a single human being in this great 
 family of nine hundred millions, who is to be 
 deprived of liberty without being convicted of 
 crime, I see no reason why I should not be the 
 man. Therefore, I do not consent to any man s 
 being subjected, without being convicted of crime, 
 either to the penalty of death, or to the penalty 
 of slavery. There is a great disposition in this 
 Convention, it seems to me, to puff up and adore 
 this Union, and to express a great reverence for 
 it. Permit me to say, Mr. President, that I have 
 some misgivings upon this topic. I cannot con 
 sent to glorify this Union while it refuses to give 
 freedom to its people. I say it is cowardly for 
 nineteen millions of Anglo Saxons to tread upon 
 three millions of negroes and mixed races. It is 
 un- democratic and un- Christian, and against the 
 Bible ; and, although some of our doctors of 
 divinity have caved in, and have carried some of 
 our old friends away with them, by proclaiming 
 that the Bible sanctions slavery, yet, Sir, I choose, 
 so far as I am concerned, to interpret the Bible 
 for myself, and not to have doctors of divinity 
 interpret it for me. 
 
 Now some things have been said, in this Con 
 vention, with reference to these two propositions 
 which I bring forward here, and considerable 
 liberty has been taken, as I understand ; for, al 
 though I was not here, I have been informed that 
 some of my friends have been assailed in a man 
 ner which was not altogether becoming to the 
 dignity of such a Convention as this. A great 
 many harsh things have been said here, against 
 the rights of women, and against come-outers. 
 
70th day.] 
 
 ELECTIONS BY PLURALITY, &c. 
 
 577 
 
 Friday,] 
 
 WHITNEY DAVIS CHAPIN WILSON TRAIN. 
 
 [July 29th. 
 
 Sir, I have a great reverence for come- outers. 
 Abraham came out from his father s house, and 
 from the religion of his fathers. The Puritans 
 were also come-outers, and came over the seas to 
 enjoy their religious sentiments unmolested. I 
 believe, Sir, that if the truth was known, we are 
 all come-outers, more or less, but some of our 
 friends are older, and have gone to seed a little. 
 They came over so long ago that they have for 
 gotten it, and have gone to seed ; and perhaps we 
 shall go to seed too, if we live long enough. It 
 seems to me, that if gentlemen have nothing 
 better to say against this proposition, than to 
 apply the term " Mr." to one of the most woman 
 ly women in this Commonwealth, one who is 
 educated and refined, and who has graduated at 
 one of your colleges ; and to apply the term 
 " Miss " to such a man as Wendell Phillips, they 
 must be in a desperate situation for want of ar 
 guments ; and we are driven to institute a com 
 parison between the blackguardism and wit of 
 the fish market and the grog saloons, and that 
 which is introduced here by a distinguished doc 
 tor of divinity we are driven to institute a com 
 parison to see which is the most dignified, and 
 which is to be regarded as the most worthy of 
 men who take part in the proceedings of this 
 body. 
 
 Mr. DAVIS, of Fall River. I rise to a ques 
 tion of order. I desire to know what the ques 
 tion is, and if the gentleman from Boylston is 
 speaking to the question ? 
 
 The PRESIDENT. The gentleman from Boyls 
 ton will be good enough to state his amendment. 
 
 Mr. WHITNEY. I propose to amend the 
 proposition of the gentleman from Taunton, by 
 adding to it the following questions : " Shall 
 official oaths and affirmations be abolished ? " and 
 " Shall the term male be stricken from the Con 
 stitution ? " 
 
 The PRESIDENT. The gentleman from 
 Boylston will perceive that both of these proposi 
 tions relate to a subject different from that which 
 is under consideration, and are therefore excluded 
 by the rule. He can introduce them in a separate 
 resolve, but they are not in order at this time. 
 
 Mr. CHAPIN, of Webster, moved the previous 
 question. 
 
 Mr. WILSON, of Natick. I hope the gentle 
 man will withdraw that motion, and that we shall 
 proceed to act upon the special assignment. That 
 can be taken up and disposed of in a few minutes. 
 
 Mr. CHAPIN. I had concluded from the two 
 last speeches that have been made, that it was 
 about time to take the question. I have no ob 
 jection to withdrawing the motion, if the gentle 
 man from Natick desires it. 
 
 Mr. WILSON. I now move to lay this sub 
 ject on the table, with a view of taking up the 
 special assignment, being the resolves upon the 
 subject of plurality. 
 
 The motion to lay upon the table was agreed to. 
 
 The Plurality Question. 
 
 On motion by Mr. WILSON, the Convention 
 proceeded to consider the first and fcurth resolves 
 on the subject of plurality, which were read, as 
 follows : 
 
 1. Resolved, That it is expedient to provide in 
 the Constitution that a majority of all the votes 
 given shall be necessary to the election of a Gov 
 ernor, Lieutenant- Governor, Secretary, Treasurer, 
 Auditor, and Attorney- General of the Common 
 wealth, until otherwise provided by law ; but no 
 such law, providing that the Governor, Lieuten 
 ant- Governor, Secretary, Treasurer, Auditor, 
 Attorney- General, and Representatives to the 
 General Court, or either of them, shall be elected 
 by plurality, instead of a majority of votes given 
 in, shall take effect until one year after its pas 
 sage ; and if at any time after the enactment of 
 any such law, and the same shall have taken 
 effect, such law shall be repealed, such repeal 
 shall not become a law until one year after the 
 passage of the repealing act; and, in default of 
 any such law, if at any election of either of the 
 above named officers, except the Representatives 
 to the General Court, no person shall have a ma 
 jority of the votes given, the House of Represent 
 atives shall, by a majority of viva voce votes, elect 
 two out of three persons who had the highest, if 
 so many shall have been voted for, and return the 
 persons so elected to the Senate, from which the 
 Senate shall, by viva voce vote, elect one who shall 
 be Governor, or other officer to be thus elected. 
 
 4. Resolved, That in the election of all city or 
 town officers, such rule of election shall govern as 
 the legislature may by law prescribe. 
 
 The question being on the final passage of the 
 resolves, 
 
 Mr. TRAIN moved to amend the first resolve, 
 so that it shall read as follows : 
 
 1. Resolved, That it is expedient to provide in 
 the Constitution that a plurality of the votes given 
 shall be necessary to the election of a Governor, 
 Lieutenant- Govern or, Secretary, Treasurer, Audi 
 tor, and Attorney- General of the Commonwealth, 
 until otherwise provided by law ; but no such 
 law, providing that the Governor, Lieutenant- 
 Governor, Secretary, Treasurer, Auditor, Attor 
 ney-General, and Representatives to the General 
 Court, or either of them, shall be elected by a ma 
 jority of votes given in, shall take effect until one 
 year after its passage ; and if at any time after 
 the enactment of any such law, and the same 
 shall have taken effect, such law shall be repealed, 
 such repeal shall not become a law until one year 
 after the passage of the repealing act ; and in de 
 fault of any such law, if at any election of either 
 
578 ELECTIONS BY PLURALITY. 
 
 [70th day. 
 
 Friday,] B IBD YEAS NAYS. 
 
 [July 29th. 
 
 of the above named officers, except the Repre- French, Charles A. 
 
 Orne, Benjamin S. 
 
 sentatives to the General Court, no person shall 
 
 French, Rodney 
 
 Osgood, Charles 
 
 have a plurality of the votes given, the House of 
 
 French, Samuel 
 
 Packer, E. Wing 
 
 Representatives shall, by a plurality of viva voce 
 
 Gale, Luther 
 
 Paine, Benjamin 
 
 votes, elect two out of three persons who had the 
 
 Giles, Charles G. 
 
 Paine, Henry 
 
 highest, if so many shall have been voted for, 
 
 Gooch, Daniel W. 
 
 Parris, Jonathan 
 
 and return the persons so elected to the Senate, 
 
 Gooding, Leonard 
 
 Partridge, John 
 
 from which the Senate shall, by viva voce vote, 
 
 Green, Jabez 
 
 Peabody, Nathaniel 
 
 elect one who shall be Governor, or other officer 
 
 Griswold, Josiah W. 
 
 Penmman, John 
 
 to be thus elected. 
 
 Griswold, Whiting 
 
 Perkins, Noah C. 
 
 
 Hadley, Samuel P. 
 
 Phelps, Charles 
 
 Mr. BIRD, of Walpole. I believe that pre 
 
 Hapgood, Lyman W. 
 
 Phinney, Silvanus B. 
 
 cisely the same amendment was moved yesterday 
 
 Hapgood, Seth 
 
 Pool, James M. 
 
 in the Convention, and it was rejected. The 
 proposition was made, I think, by the gentleman 
 from Boston, Mr. Schouler. 
 
 Haskins, William 
 Hawkes, Stephen E. 
 Hayden, Isaac 
 Heath, Ezra, 2d, 
 
 Putnam, John A. 
 Rantoul, Robert 
 Richards, Luther 
 Richardson, Daniel 
 
 The PRESIDENT. The Chair has inquired 
 
 Hewes, James 
 
 Richardson, Nathan 
 
 of the Secretary, and finds no record of such a 
 
 Hewes, William H. 
 
 Richardson, Samuel H. 
 
 motion. The Chair supposes that this precise 
 question has not been presented. 
 The question being then taken on the motion 
 of Mr. Train, on a division, there were ayes, 
 
 Hobart, Henry 
 Holder, Nathaniel 
 Hood, George 
 Hooper, Foster 
 Howard, Martin 
 
 Ring, Elkanah, Jr. 
 Rockwood, Joseph M. 
 Rogers, John 
 Ross, David S. 
 Sanderson, Amasa 
 
 120 ; noes, 194 so it was not agreed to. 
 
 Hunt, Charles E. 
 
 Sanderson, Chester 
 
 The question then recurring on the final pas 
 
 Huntington, Charles P. 
 
 Simmons, Perez 
 
 sage of the resolves, Mr. BUTLER asked for the 
 
 Huntington, George H. 
 
 Simonds, John W. 
 
 yeas and nays, and they were ordered; and, 
 being taken, resulted yeas, 184 ; nays, 159 as 
 
 Hurlbut, Moses C. 
 Hyde, Benjamin D. 
 Jacobs, John 
 
 Sprague, Melzar 
 Spooner, Samuel W. 
 Stevens, Joseph L., Jr. 
 
 follows : 
 
 Johnson, John 
 
 Stevens, William 
 
 
 Kendall, Isaac 
 
 Stiles, Gideon 
 
 YEAS. 
 
 Kimball, Joseph 
 
 Strong, Alfred L. 
 
 Abbott, Josiah G. Childs, Josiah 
 Adams, Shubael P. Churchill, J. McKean 
 Allen, James B. Clark, Henry 
 Allis Josiah dirk SilaVi 
 
 Knight, Hiram 
 Knight, Jefferson 
 Knowlton, Charles L. 
 Knowlton, William H. 
 
 Thayer, Joseph 
 Thayer, Willard, 2d 
 Tilton, Abraham 
 Turner, David P. 
 
 **AA*O| uuaidii V^lclrK., Ottlall 
 
 Alvord, D. W. Clarke, Stillman 
 Austin, George Cleverly, William 
 Baker, Hillel Crane, George B. 
 Barrett, Marcus Cressy, Oliver S. 
 Bates, Eliakirn A. Cross! Joseph W. 
 Bates, Moses, Jr. Cushman, Henry W. 
 Beal, John Cushman, Thomas 
 Bennett, Zephaniah Cutler, Simeon N. 
 Bigelow, Edward B. Dana, Richard H., Jr. 
 Bird, Francis \V. Davis, Charles G. 
 
 Knox, Albert 
 Langdon, Wilber C. 
 Lawrence, Luther 
 Lawton, Job G., Jr. 
 Leland, Alden 
 Lincoln, Abishai 
 Little, Otis 
 Littlefield, Tristram 
 Loomis, E. Justin 
 Marble, William P. 
 
 Tyler, William 
 Underwood, Orison 
 Vinton, George A. 
 Walker, Amasa 
 Ward, Andrew H. 
 Warner, Samuel, Jr. 
 Waters, Asa H. 
 Weston, Gershom B. 
 White, George 
 Whitney, Daniel 8. 
 
 Bliss, Gad O. Davis, Isaac 
 
 Marcy, Laban 
 
 Whitney, James S. 
 
 Booth, William S. Davis, Robert T. 
 Boutwell, Geo. S. Day, Gilman 
 
 Marvin, Abijah P. 
 Merritt, Simeon 
 
 Wilbur, Daniel 
 Wilbur, Joseph 
 
 Boutwell, Sewell Deming, Elijah S. 
 Bradford, William J. A Denton, Augustus 
 Breed, Hiram N. Duncan, Samuel 
 Bronson, Asa Dunham, Bradish 
 Brown, Adolphus F. Durgin, John M. 
 Brown, Artemas Eames, Philip 
 Brown, Hammond Earle, John M. 
 
 Moore, James M. 
 Morton, Marcus, Jr. 
 Morton, William S. 
 Nash, Hiram 
 Nayson, Jonathan 
 Nichols, William 
 Nute, Andrew T. 
 
 Williams, J. B. 
 Wilson, Henry 
 Winn, Jonathan B. 
 Winslow, Levi M. 
 Wood, Charles C. 
 Wood, Nathaniel 
 Wood, Otis 
 
 Brownell, Frederick Easland, Peter 
 
 Ober, Joseph E. 
 
 Wright, Ezekiel 
 
 Brownell, Joseph Edwards, Elisha 
 
 
 
 Bryant, Patrick Fay, Sullivan 
 
 NAYS. 
 
 Burlingame, Anson Fellows, James K. 
 
 Adams, Benjamin P. 
 
 Atwood, David C. 
 
 Butler, Benjamin F. Fisk, Lyman 
 
 Aldrich, P. Emory 
 
 Ayres, Samuel 
 
 Cady, Henry Fiske, Emery 
 
 Allen, Charles 
 
 Ball, George S. 
 
 Caruthers, William Foster, Aaron 
 
 Allen, Joel C. 
 
 Bancroft, Alpheus 
 
 Case, Isaac Foster, Abram 
 
 Allen, Parsons 
 
 Barrows, Joseph 
 
 Chapin, Daniel E. Fowle, Samuel 
 
 Andrews, Robert 
 
 Bartlett, Russel 
 
 Chapin, Henry Freeman, James M. 
 
 Aspinwall, William 
 
 Bartlett, Sidney 
 
70th day.] 
 
 ELECTIONS BY PLURALITY. 579 
 
 Friday,] 
 
 NATS ABSENT. [July 29th. 
 
 Beebe, James M. 
 
 Hunt, William Wetmore, Thomas Williams, Henry 
 
 Bell, Luther V. 
 
 Huntington, Asahel 
 
 Wheeler, William F. Wilson, Milo 
 
 Bennett, William, Jr. 
 
 Hurlburt, Samuel A. 
 
 White, Benjamin Wilson, Willard 
 
 Bigelow, Jacob 
 
 James, William 
 
 Wilder, Joel Woods, Josiah B. 
 
 Bradbury, Ebenczer 
 
 Jenkins, John 
 
 Wilkinson, Ezra 
 
 Brewster, Osmyn 
 
 Kellogg, Giles C. 
 
 
 Brinley, Francis 
 
 Kinsman, Henry W. 
 
 ABSENT. 
 
 Briggs, George N. 
 
 Knight, Joseph 
 
 Abbott, Alfred A. Kellogg, Martin R. 
 
 Buck, Asaliel 
 
 Knowlton, J. S. C. 
 
 Alley, John B. Keyes, Edward L. 
 
 Bullock, Rufus 
 Bumpus, Cephas C. 
 
 Kuhn, George, H. 
 Ladd, Gardner P. 
 
 Appleton, William Kingman, Joseph 
 Ballard, Alvah Ladd, John S. 
 
 Chandler, Amariah 
 
 Lincoln, Frederic W., Jr. 
 
 Banks, Nathaniel P., Jr. Mason, Charles 
 
 Chapin, Chester W. 
 
 Livermore, Isaac 
 
 Beach, Erasmus D. Meader, Reuben 
 
 Clark, Ransom 
 Clarke, Alpheus B. 
 Coggin, Jacob 
 
 Lord, Otis P. 
 Lothrop, Samuel K. 
 Loud, Samuel P. 
 
 Bishop, Henry W. Morton, Elbridge G. 
 Blagden, George W. Newman, Charles 
 Bliss, Willam C. Norton, Alfred 
 
 Cole, Lansing J. 
 Cole, Sumner 
 Conkey, Ithamar 
 
 Lowell, John A. 
 Marvin, Theophilus R. 
 Miller, Seth, Jr. 
 
 Braman, Milton P. Paige, James W. 
 Brown, Alpheus R. Parker, Joel 
 Brown, Hiram C. Parker, Samuel D. 
 
 Cook, Charles E. 
 
 Mixter, Samuel 
 
 Bullen, Amos H. Parsons, Samuel C. 
 
 Cooledge, Henry F. 
 Copeland, Benjamin F. 
 Crittenden, Simeon 
 Crockett, George W. 
 
 Monroe, James L. 
 Morey, George 
 Morss, Joseph B. 
 Morton, Marcus 
 
 Carter, Timothy W. Parsons, Thomas A. 
 Choate, Rufus Payson, Thomas E. 
 Cogswell, Nathaniel Peabody, George 
 Crowell, Seth Perkins, Jonathan C. 
 
 Crosby, Leander 
 Davis, Ebenezer 
 Davis, John 
 
 Noyes, Daniel 
 Oliver, Henry K. 
 Orcutt, Nathan 
 
 Crownmshield, F. B. Powers, Peter 
 Cummiiigs, Joseph Preston, Jonathan 
 Curtis, Wilber Prince, F. O. 
 
 Davis, Solomon 
 Dawes, Henry L. 
 Dean, Silas 
 
 Park, John G. 
 Parker, Adolphus G. 
 Pease, Jeremiah, Jr. 
 
 DeWitt, Alexander Putnam, George 
 Easton, James, 2d Sampson, George R. 
 Eaton, Calvin D. Sheldon, Luther 
 
 Dehon, William 
 
 Perkins, Daniel A. 
 
 Edwards, Samuel Sherman, Charles 
 
 Denison, Hiram S. 
 Doane, James C. 
 Dorman, Moses 
 
 Perkins, Jesse 
 Pierce, Henry 
 Plunkett, William C. 
 
 Ely, Joseph M. Stacy, Eben H. 
 Eustis, William T. Stevenson, J. Thomas 
 Fitch, Ezekiel W. Storrow, Charles S. 
 
 Eaton, Lilley 
 
 Pomroy, Jeremiah 
 
 Graves, John W. Stutson, William 
 
 Ely, Homer 
 
 Rawson, Silas 
 
 Greene, William B. Sumner, Charles 
 
 Farwell, A. G. 
 
 Read, James 
 
 Greenleaf, Simon Swain, Alanson 
 
 Fowler, Samuel P. Heed, Sampson 
 French, Charles H. Rice, David 
 Frcthingham, Rich d, Jr.Rockwell, Julius 
 Gardner, Henry J. Royce, James C. 
 Gardner, Johnson Sargent, John 
 Gates, Elbridge Schouler, William 
 Gilbert, Wanton C. Sherril, John 
 
 Hall, Charles B. Taber, Isaac C. 
 Huskell, George Talbot, Thomas 
 Hillard, George S. Taylor, Ralph 
 Hobbs, Edwin Tower, Ephraim 
 Hubbard, William J. Tyler, John S. 
 Ide, Abijah M., Jr. Warner, Marshal 
 Jackson Samuel "Wilkins, John H. 
 
 Gilbert, Washington 
 
 Sikes, Chester 
 
 Jenks, Samuel H. Wood, William H. 
 
 Giles, Joel 
 
 Sleeper, John S. 
 
 
 Gould, Robert 
 
 Smith, Matthew 
 
 Absent and not voting, 76. 
 
 Goulding, Dalton 
 
 Souther, John 
 
 
 Goulding, Jason 
 
 Stetson, Caleb 
 
 So the resolves were passed. 
 
 Gray, John C. 
 
 Stevens, Charles G. 
 
 The whole series is as follows : 
 
 Hale, Artemas 
 
 Stevens, Granville 
 
 
 Hale, Nathan 
 
 Sumner, Increase 
 
 1. Resolved, That it is expedient to provide in 
 
 Hallett, B. F. 
 
 Taft, Arnold 
 
 the Constitution that a majority of all the votes 
 
 Hammond, A. B. 
 
 Thomas, John W. 
 
 given shall be necessary to the election of a Gov 
 
 Harmon, Phineas 
 
 Thompson, Charles 
 
 ernor, Lieutenant- Govern or, Secretary, Treasurer, 
 
 Hathaway, Elnathan P. 
 
 Tileston, Edmund P. 
 
 Auditor, and Attorney- General of the Common 
 
 Hayward, George 
 
 Tilton, Horatio W. 
 
 wealth, until otherwise provided by law; but 
 
 Hazewell, Charles C. 
 
 Train, Charles R. 
 
 no such law providing that the Governor, Lieu 
 
 Heard, Charles 
 
 Turner, David 
 
 tenant- Governor, Secretary, Treasurer, Auditor, 
 
 Henry, Samuel 
 
 Upham, Charles W. 
 
 Attorney- General, and Representatives to the 
 
 Hersey, Henry 
 
 Upton, George B. 
 
 General Court, or either of them, shall be elected 
 
 Hey wood, Levi 
 
 Viles, Joel 
 
 by plurality, instead of a majority of votes given 
 
 Hinsdale, William 
 
 Walcott, Samuel B. 
 
 in, shall take effect until one year after its pas 
 
 Hobart, Aaron 
 
 Wales, Bradford L. 
 
 sage ; and if at any time after the enactment of 
 
 Hopkinson, Thomas 
 
 Wallace, Frederick T. . 
 
 any such law, and the same shall have taken effect, 
 
 Houghton, Samuel 
 
 Wallis, Freeland 
 
 such law shall be repealed, such repeal shall not 
 
 Howland, Abraham H. 
 
 Walker, Samuel 
 
 become a law until one year after the passage of 
 
 Hoyt, Henry K. 
 
 Weeks, Cyrus 
 
 the repealing act ; and in default of any such 
 
580 
 
 HOUSE OF REPRESENTATIVES. 
 
 [70th day. 
 
 Friday,] 
 
 MORTON WILSON. 
 
 [July 29th. 
 
 law, if at any election of either of the above 
 named officers, except the Representatives to the 
 General Court, 110 person shall have a majority of 
 the votes given, the House of Representatives 
 shall, by a majority of viva voce votes, elect two 
 out of three persons who had the highest, if so 
 many shall have been voted for, and return the 
 persons so elected to the Senate, from whom the 
 Senate shall, by viva voce vote, elect one who shall 
 be Governor, or other officer thus to be elected. 
 
 2. Resolved, That in all the elections of Senators 
 and Councillors, the person having the highest 
 number of votes shall be elected. 
 
 3. Resolved, That it is expedient so to amend the 
 Constitution as to provide that a majority of votes 
 shall be necessary for the election of Representa 
 tives to the General Court, until otherwise pro 
 vided by law. 
 
 4. Resolved, That in the election of all city or 
 town officers, such rule of election shall govern as 
 the legislature may by law prescribe. 
 
 5. Resolved, That in the election of all county 
 and district officers, the person having the highest 
 number of votes shall be elected. 
 
 6. Resolved, That in all elections where the per 
 son having the highest number of votes may be 
 elected, and there is a failure of election because 
 two persons have an equal number of votes, subse 
 quent trials may be had at such times as may be 
 prescribed by the legislature. 
 
 Representation. 
 
 On motion by Mr. MORTON, of Taunton, 
 the Convention resumed the consideration of the 
 resolves submitted by him, respecting the mode 
 of submitting the question of representation to 
 the people. 
 
 Mr. WILSON, of Natick. Mr. President : It 
 seems to me that the proposition of the distin 
 guished gentleman from Taunton, (Mr. Morton,) 
 to submit to the people an alternate plan for the 
 basis of the House of Representatives, will have 
 a tendency to distract, divide, and embarrass the 
 friends of the amended Constitution. I may be 
 mistaken, my apprehensions may be groundless. 
 I admit that the plan may be clearly compre 
 hended, fully understood by the people, so that 
 the friends of reform, upon whom we are to rely 
 to carry through the amendments which the Con 
 vention has adopted, may not be at cross purposes 
 during the canvass ; but it does appear to me, 
 that it will, if adopted, lead to a diversity of sen 
 timents, opinions, and actions among the friends 
 of constitutional reform. Looking at the propo 
 sition as I cannot but look at it in this light I 
 cannot give my humble support to it. On the 
 contrary, I feel it to be my duty to do all I can do 
 honorably to prevent its adoption by this Con 
 vention. 
 
 After days weeks of debate after listening to 
 a discussion distinguished for its profound ability, 
 the Convention has expressed its deliberate judg 
 
 ment upon the question. The Convention, by a 
 majority of about one hundred, has decided in 
 favor of a mixed system, based upon corporate 
 rights and population. That system, as it now 
 stands in the amended Constitution, is the delib 
 erate judgment of the Convention. It will go out 
 to the people of Massachusetts as the sense of the 
 Convention. Unequal as it is unequal as any 
 system that preserves town representation must 
 be it is the product of the deliberations of the 
 Convention, and it will go out to the people with 
 the sanction of men presumed to embody and 
 express the popular will. Yes, Sir, unequal as it 
 is, it will be sustained by the ideas, habits, associ 
 ations, and prejudices of the people. For more 
 than six generations the people of this old Com 
 monwealth have maintained the system of town 
 representation, under some modifications. Gen 
 tlemen who expect the people to relinquish a 
 system endeared to them by the associations of 
 two centuries, undervalue the force of old habits, 
 associations and ideas. There are, it cannot be 
 denied, members of the Convention, representing 
 large constituencies, who do not prefer the plan 
 adopted, who have not supported that plan, and 
 who are in favor of a district system, based upon 
 population or legal voters. 
 
 It is well known, Sir, that there are very many 
 members of the Convention who are in favor of a 
 district system, but who hesitate to vote for it, 
 believing that the people are not yet prepared to 
 abandon town representation, and to adopt a dis 
 trict system. These members have voted for town 
 representation, thus swelling the majority for the 
 plan adopted. 
 
 There are several members who doubt whether 
 the Convention has decided in accordance with 
 the wishes of the people or not. These members 
 are divided in their action. Some of them have 
 given reluctant votes for the plan adopted ; others 
 of them have voted for a district system through 
 out. These members are united in the wish to 
 take the sense of the people, if it is practicable to 
 do so, without endangering the whole of the con 
 stitutional amendments. 
 
 Now, Sir, I am willing to incorporate into the 
 Constitution a provision that shall give the people 
 an opportunity to pass upon the question here 
 after, whether they will have the State divided 
 into districts for the choice of representatives or 
 not. The friends of town representation of the 
 system which is now determined upon have 
 carried here, that system, by an immense majority. 
 If this Convention reflects the popular will and 
 gentlemen think it does I am sure the friends of 
 that system cannot object to giving the people an 
 opportunity to vote upon the district system when 
 
70th day.] 
 
 HOUSE OF REPRESENTATIVES. 
 
 581 
 
 Friday,] 
 
 WILSON. 
 
 [July 29th. 
 
 that system is perfected and presented to them in 
 detail. 
 
 I cannot give my vote for the proposition now 
 pending, introduced by the member from Taun- 
 ton, (Mr. Morton,) because in my judgment it 
 will tend to complicate affairs, to embarrass and 
 distract the people, and possibly to defeat the chief 
 object of the Convention. I am willing to go for 
 a plan like the one I hold in my hand. I will 
 read the proposition for the information of the 
 Convention which I shall move when the proper 
 time for doing so shall have arrived as an amend 
 ment to the proposition offered by the delegate 
 from Taunton. It is as follows : 
 
 Resolved, That it is expedient so to amend the 
 Constitution as to provide, that the legislature 
 which shall be chosen at the general election in 
 November, 1855, shall be required to divide the 
 State into forty single districts for the choice of 
 Senators, such districts to be of contiguous terri 
 tory, and as equal in the number of qualified 
 voters contained in each district as may be ; and 
 also to divide the State into single or double dis 
 tricts for the choice of not less than two hundred 
 and forty nor more than three hundred and twenty 
 representatives, such districts to be of contiguous 
 territory, and as equal in the number of qualified 
 voters contained in each disirict as may be, with 
 proper provisions for redistricting the State as 
 aforesaid, in the year 1866, and every tenth year 
 thereafter, and with all other provisions necessary 
 for carrying such system of districts into opera 
 tion ; and to submit the same to the people at a 
 general election to be held in the year 1856 for 
 their ratification ; and, if the same shall be rati 
 fied by the people, it shall become part of this 
 Constitution, in place of the provision herein con 
 tained for the apportioning of Senators and Ilep- 
 resentatives. 
 
 Now, Sir, this is not an alternative proposition. 
 It is simply a provision for the future amendment 
 of the Constitution. It is plain, clear, simple 
 easily comprehended by all. It provides that the 
 legislature, which will be the second legislature 
 chosen under this amended Constitution, in the 
 year 1855, shall, in the session of 1856, district 
 the State into forty single senatorial districts, 
 and into single or double representative districts, 
 making a House of Representatives of not less 
 than two hundred and forty, nor more than three 
 hundred and twenty ; and to submit the question 
 to the people, at the November election of 1856. 
 The people will then have tested the system 
 agreed upon by this Convention. It will have 
 been in full operation ; they will have had it for 
 two years ; its benefits, if benefits it have, they will 
 have enjoyed ; and its evils, if evils it have, they 
 will have suffered ; and they will be able to say 
 whether they are in favor of the continuation of 
 that system or not. They will, at the same time, 
 
 have presented to them a district system, based 
 upon legal voters for the Senate and House of 
 Representatives, carried into full detail, so that 
 every one will know into what senatorial or rep 
 resentative district he goes. Then the whole 
 question will be fairly presented to the people ; 
 and the issue will be between the system then 
 existing and the district system presented to them 
 in detail, full and complete, with provisions for 
 re- districting the State in 1866, and every tenth 
 year thereafter. 
 
 Now, Mr. President, this proposition is simple, 
 plain, and clear easily comprehended by all men. 
 There is nothing in it calculated to complicate 
 the question at issue, or to embarrass the friends 
 of constitutional reform, in or out of the Conven 
 tion. The Convention, by a decisive majority, 
 has adopted the system of town representation, 
 modified by population. That system, if sanc 
 tioned by the people, will go into operation in 
 1854. The legislature chosen under that system 
 will, in 1856, district the Commonwealth for sen 
 ators and representatives, based on legal voters. 
 The friends of town representation can vote for 
 the Constitution with this provision in it. By so 
 doing, they secure the adoption of this system 
 they secure its benefits to the people. The friends 
 of the district system can vote for the Constitu 
 tion with this provision in it. By so doing, they 
 secure, three years hence, the privilege, the right, 
 to vote for a district system, which they desire, 
 and which they believe the people of Massachu 
 setts also desire. 
 
 Yes, Sir, the friends of both systems, if they 
 have confidence in their systems, and confidence 
 in the people, can vote for the Constitution with 
 both systems embodied in it. If the people want 
 town representation, they will take and keep it. 
 If they want the district system, they will, in 
 1856, accept it. Adopt the amendment I pro 
 pose adopt the Constitution, as amended, next 
 autumn, and then trust the two systems of rep 
 resentation to the people, and abide the popular 
 verdict. This is all any one can desire, who is 
 willing to trust the people to settle the question 
 for themselves. 
 
 I may be told, Mr. President, that the adop 
 tion of the amendment I propose, expresses dis 
 trust of the system agreed upon. I do not think 
 so. It is a fair and liberal proposition. The 
 Convention has expressed its views in language 
 not equivocal. The majority simply say to the 
 minority : " We are for town representation, you 
 are for a district system. We are confident that 
 the people are for town representation ; you say 
 they are for the district system. We have secured 
 town representation, but we have confidence in 
 
582 
 
 HOUSE OF REPRESENTATIVES. 
 
 [70th day. 
 
 Friday,] 
 
 WILSON. 
 
 [July 29th. 
 
 our system and in the people ; we will be fair 
 and liberal. We will vote to submit, three years 
 hence, a detailed district system to the people, 
 and we will cheerfully abide the result." 
 
 Sir, there is no distrust, no weakness in this. 
 There is confidence in the plan adopted, confi 
 dence in the judgment of the people, and a spirit 
 of liberality and magnanimity in it. The friends 
 of constitutional reform cannot but appreciate the 
 spirit of liberality which this act of the friends of 
 town representation manifests. I appeal to the 
 advocates of town representation to support the 
 amendment I have proposed ; and I call upon the 
 friends of the district system to respond to the 
 action of their associates, and to unite in placing 
 this provision into the Constitution. By so doing, 
 they will secure the adoption of the Constitution 
 by the people, and thus incorporate into the fun 
 damental law, the reforms which have received 
 the sanction of the Convention. 
 
 But I may be told, Mr. President, that nothing 
 will be gained by the adoption of the plan I pro 
 pose. Gentlemen who entertain this idea are 
 mistaken, altogether mistaken. We have pro 
 vided for future amendments of the Constitu 
 tion, in the following ways : A majority of the 
 Senate, and two-thirds of the House of Repre 
 sentatives, of two successive legislatures, may 
 propose specific amendments to the Constitution, 
 for the ratification of the people. The legisla 
 ture may submit, at any session, to the people, 
 the question of calling a Convention. The peo 
 ple, in 1873, and every twentieth year thereafter, 
 shall vote upon the question of calling a Conven 
 tion ; the legislature shall submit the question to 
 the people, if one- third of the legal voters voting 
 at the annual election shall require it. These are 
 the modes provided in the amended Constitution 
 for future amendments. No one can reasonably 
 expect that the people will at present vote for 
 another Convention, even should the amended 
 Constitution fail to meet the just expectations of 
 the people. No one can reasonably expect that 
 the legislature, constituted as the House is, will 
 frame a district system, to be submitted to the 
 people. He must be a sanguine man who sup 
 poses that two successive legislatures will, by a 
 majority of the Senate and two-thirds of the 
 House of Representatives, frame a district sys 
 tem. The friends of the district system cannot 
 reasonably hope to obtain such a system within a 
 few years, either by a Constitutional Convention 
 or by the action of the legislature, by either of 
 the provisions for future amendments. Now the 
 amendment I propose, makes it the duty of the 
 legislature chosen in 1855, to divide the Com 
 monwealth into senatorial and representative dis 
 
 tricts, and to submit the plan to the people at 
 the general election in 185G, for their ratification. 
 This duty, the legislature of 1856 must perform, 
 or it must fail to perform its constitutional duties. 
 This, Sir, is what is secured by the proposition I 
 intend to submit. It secures all that the friends 
 of the district system can reasonably demand ; 
 more than they have had reason to anticipate at 
 the hands of this Convention, after the adoption 
 of the plan agreed upon by a majority of more 
 than one hundred. 
 
 Gentlemen will say that the legislature of 1856 
 will not district the State fairly that the district 
 system will not have a fair chance before the peo 
 ple. The amendment I propose, provides that the 
 districts shall be based upon legal voters as equal 
 in number in each district as may be and each 
 of the districts to be of contiguous territory. 
 The system must necessarily be fair and equitable. 
 The Senate is based upon population it repre 
 sents the popular sentiments in the fullest man 
 ner. That body will not consent to an unjust 
 and unequal district system, even if the House 
 of Representatives should be disposed to adopt 
 such an one. I have the fullest confidence that 
 the legislature of 1856 will fairly and faithfully 
 discharge and perform its constitutional obliga 
 tions that it will frame a just and equitable dis 
 trict system for the ratification of the people. 
 
 But, I may be told, Sir, that a detailed district 
 system, even if fairly made, will not receive the 
 support of the people ; that such a system goes 
 to the people under peculiar disadvantages ; that 
 men in favor of a district system may not like 
 the districts adopted. To this objection, I reply, 
 that the friends of the district system have no 
 right to ask and no reason to expect, that the 
 simple proposition " Shall the State be divided 
 into districts for the election of members of the 
 House of Representatives ?" shall ever be sub 
 mitted to the people. The town representation 
 plan goes to the people in detail the people know 
 where they are to go. If a district system is to 
 be submitted to the people, it is fair and just that 
 it should go to them in detail, so that they may 
 know into what districts they are to be classed. 
 The people ought not to be required to abandon 
 town representation for an ideal district system. 
 And, I venture to say, that no legislature will 
 consent to submit the district system to the people, 
 unless that system is perfected so framed as to 
 give the people a fair view of its workings. 
 
 If the advocates of the district system are not 
 willing to allow the question to go to the people 
 in a detailed form, they show a want of confi 
 dence in the system, and a distrust of the senti 
 ments of the people. I am for the district sys- 
 
70th day.] 
 
 HOUSE OF REPRESENTATIVES. 
 
 583 
 
 Friday,] 
 
 WILSON HOOPER. 
 
 [July 29th. 
 
 tern, and I am willing to submit the question to 
 the people, completed, and to abide the popular 
 verdict. 
 
 It cannot be denied, Mr. President, that there 
 is great hostility to the plan adopted by the Con 
 vention. Some of the ablest friends of the 
 Convention in and out of it are opposed to it. 
 Some of these gentlemen will acquiesce in the 
 plan agreed upon, and will do all in their power 
 to secure the ratification of the amended Consti 
 tution, for the sake of other reforms which have 
 been adopted. A few other gentlemen tell us 
 that they shall not vote for the Constitution that 
 they shall do all in their power to defeat it before 
 the people. Now, Sir, I have the fullest confi 
 dence in the people. I believe that they will 
 ratify the doings of the Convention by a decisive 
 majority. Upon this point I feel the confident 
 assurance of victory. But, I see and feel that 
 we are to carry it by great efforts and labors 
 efforts and labors we know how to make, and 
 which we shall make. 
 
 If the Constitution goes out to the people in its 
 present form, I tell its friends that it is to encoun 
 ter the fiercest opposition. Powerful interests are 
 combining to defeat its ratification. Money will 
 be poured out like autumnal rains to defeat it. 
 They must be prepared to carry it by main 
 strength before the people. It will demand im 
 mense efforts to repel the onslaughts that will be 
 made upon it, and to carry it safely through the 
 storms of denunciation which its opponents will 
 hurl upon it. The presses of the opposition to 
 the Convention have opened their batteries upon 
 the plan adopted. They are preparing to pour 
 upon the friends of that plan, and upon the 
 friends of constitutional reform, an unremitting 
 fire to be continued from this time to November 
 next. 
 
 Sir, I have watched, with some little care and 
 interest, the course of the presses opposed to this 
 Convention, and I am constrained to say, that 
 from the hour of the meeting of the Convention 
 to this day, the?e presses have done all in their 
 power to misrepresent the acts of the Convention, 
 and the members of the majority of the Conven 
 tion ; they have done all in their power to pre 
 pare the minds of the people to reject the doings 
 of the Convention. These presses, the exponents 
 of the party whose organs they are, have seized 
 upon the inequalities of the plan adopted as the 
 basis of the House of Representatives, with the 
 hope that they may defeat the amended Constitu 
 tion, and bury its friends beneath its ruins. 
 
 Sir, the adoption of the proposition I intend to 
 submit as an amendment to the plan proposed by 
 the gentleman from Taunton, (Mr. Morton,) will 
 
 spike these batteries silence them, and break the 
 power and force of the opposition now forming 
 to assail the amended Constitution. Sir, I have 
 reflected upon this proposition ; I have slept upon 
 it ; and I am sure its adoption will crush all oppo 
 sition, and carry the amended Constitution trium 
 phantly before the people. Leaving to the friends 
 of the district system a fair opportunity to obtain 
 it three years hence an opportunity which they 
 cannot have unless such a provision be incorpo 
 rated into the Constitution it will bring it must 
 bring to the support of the amended Constitution, 
 friends and supporters from all parties. Yes, Sir ; 
 its adoption will unite all the friends of Constitu 
 tional Reform, and it will draw thousands from 
 the ranks of that party whose opposition to this 
 Constitutional Convention its best and most saga 
 cious men feel to have been a political blunder. 
 
 To the advocates of the district system I appeal 
 to support this amendment, because it secures to 
 you the right and the privilege of taking the sense 
 of the people upon that system three years hence. 
 To the friends of town representation I appeal to 
 support this amendment, because it secures to you 
 the adoption and fair trial for two years of your 
 favorite system of representation. To the friends 
 of the amended Constitution I appeal, to vote for 
 this amendment, because its adoption will draw 
 the fire of the batteries of the opposition break 
 the force of the opposition to the ratification by 
 the people of the work of the Convention, and 
 carry gloriously through the reforms which we 
 have adopted at so much cost of toil, time and 
 expense. 
 
 Mr. President : I give notice that I shall, at the 
 proper time, submit the plan I have read to the 
 Convention. I have read it, so that gentlemen of 
 the Convention may understand what are its 
 principal provisions. 
 
 Mr. HOOPER, of Fall River. I am glad that 
 the gentleman from Natick, (Mr. Wilson,) has 
 come forward with a proposition of this charac 
 ter, and which I hope his friends will support. 
 Although I much prefer the proposition of the 
 gentleman from Taunton, (Mr. Morton,) and 
 shall do what I can to support it, yet I am wil 
 ling, if I cannot get that, to accept even this, be 
 cause it gives me some ground on which 1 can 
 stand. I believe, that if the Constitution goes 
 out to the people without some provision of this 
 character, it is destined to be defeated. I am 
 confident of it, Sir, for I hear it said, over and 
 over again, every day, by those who have the 
 means of knowing something of the views and 
 feelings of the people, that the friends of this 
 Convention cannot be brought to support this 
 Constitution, without the adoption of a plan of 
 
584 
 
 HOUSE OF REPRESENTATIVES. 
 
 [70th day. 
 
 Friday, 
 
 HOOPER. 
 
 [July 29th. 
 
 this kind. I apprehend, Sir, that the plan which 
 has been adopted, is more defective than it is 
 generally supposed to be ; and. Sir, every provis 
 ion for its future amendment, only goes to per 
 petuate these defects, and make the plan even 
 worse for the future than it is for the present. If 
 its operation were to remain precisely as applied 
 to the existing condition of things, it is quite pos 
 sible that the people might accept it and let it 
 stand. But, Sir, what is to be the future effect 
 of it ? Let us suppose that the whole increase of 
 the population of this State, is to be confined to 
 the large towns and cities sending more than one 
 representative. Let us suppose, also, that within 
 the next twenty years we should increase in pop 
 ulation to three millions what would be the 
 result ? Simply that the number of inhabitants 
 required to elect more than one representative in a 
 town or city, will be enormously increased, while 
 those towns, no matter how large their popula 
 tion, that are now entitled to send more than one 
 member to the House of Representatives, will 
 still only have the power of sending their present 
 number, unless their individual rate of increase 
 shall exceed that of the whole State. Under the 
 present provision, should such an increase take 
 place in large towns only, it might result that 
 less than one-fifth, or even one-eighth of the 
 people of the Commonwealth might elect the ma 
 jority of the House of Representatives, and you 
 propose that all future Conventions shall be called 
 and constituted on the same unequal basis. 
 What, then, is the chance of ever peaceably get 
 ting an equal system, unless some provision of 
 this kind shall be incorporated into the Constitu 
 tion ? 
 
 Sir, I am surprised to see gentlemen undertake 
 to support such a system here ; and I was not 
 less surprised to hear the gentleman from Boyl- 
 ston, (Mr. Whitney,) who professes to have a con 
 science, and who appears to be very conscientious 
 and honest on all other subjects, supporting the 
 unequal system which has been adopted. Let 
 me put this matter in its right point of view. 
 Suppose that the political franchise, as bequeathed 
 to us by our fathers, was a legacy involving a 
 money consideration in the shape of an annuity 
 to each voter, each to share equally. How would 
 you divide it? By giving to one man six or 
 eight times as much as you give to another ? I 
 ask if that would be regarded as right or honest, 
 by the gentleman from Boylston, or if any man, 
 under such circumstances, could be found, who 
 would claim a larger portion for himself, than he 
 would concede to every other man, as his just 
 right ? I do not believe that any just or honest 
 man would do it. 
 
 Now, so far from the proposition of the gentle 
 man from Taunton tending to complicate this 
 matter, I think its tendency is quite the reverse. 
 What is the proposition ? In the first place, 
 every man is called upon to say whether the old 
 system shall be abrogated or not. If the majori 
 ty vote for abrogating the old system, why of 
 course it will be done away with. Then every 
 man who is called upon to say whether he is in 
 favor of sustaining or abrogating the old system, 
 is called upon, at the same time, to vote in favor 
 of one of the two propositions here offered either 
 the town system we have already adopted, or the 
 proposition of the gentleman from Taunton. 
 And, Sir, I must say that that seems to me to be 
 a very plain proposition, one very easily under 
 stood, and one with which I could cheerfully and 
 confidently go before my constituents, with an 
 expectation of success ; and, with such a provision, 
 I could advocate the Constitution in every other 
 respect, because I could then take my stand in 
 the affirmative, on a question involving a matter 
 of fundamental equality. I should, therefore, 
 much prefer the proposition of the gentleman 
 from Taunton, to the old system, and should 
 consequently vote for the abrogation of that sys 
 tem, as would every other man who should prefer 
 either of these new propositions to it, and the 
 result would necessarily be the abrogation of the 
 old system, and the adoption of one or the other 
 of these new propositions, as the people should 
 prefer. In that way you will let the people vote 
 upon the matter as they please. And why should 
 they not ? 
 
 But the gentleman from Natick says, that the 
 system we have adopted has been adopted by an 
 overwhelming majority of the Convention, and 
 that the Convention reflects the sentiments of the 
 people of the Commonwealth. Is that so ? Has 
 that gentleman examined the yeas and nays as 
 they have been taken on this question, and ascer 
 tained how many of the people are represented 
 by that majority ? Sir, you will find that the 
 majority of the people of the Commonwealth, 
 who are represented by the minority on this ques 
 tion, on this floor, have voted against it ; and if 
 these representatives have represented the views 
 of their constituents correctly, it must follow, as 
 inevitably as night follows day, that this plan 
 cannot be accepted by the people of the State. 
 Sir, the representatives of nearly three- fifths of 
 the people have voted against it, while the dele 
 gates of only about two-fifths have voted for it. 
 Sir, that fact is ominous of its fate, unless it shall 
 be accompanied with an alternative proposition, 
 or some scheme by which its monstrous inequali 
 ty can be remedied. 
 
70th day.] 
 
 HOUSE OF REPRESENTATIVES. 
 
 585 
 
 Friday,] 
 
 ALVORD ABBOTT. 
 
 [July 29th. 
 
 Now, Sir, let us have a system upon which we 
 can unite. I prefer the plan of the gentleman 
 from Taunton, (Mr. Morton,) but if we cannot 
 have that, let us have the plan of the gentleman 
 from Natick, (Mr. Wilson,) as a ground upon 
 which we can stand ; and we can say to the peo 
 ple, if you do not like this, you have the power 
 to change it two years hence, and the power of 
 obtaining something like an equal plan. It is 
 true that bases it upon legal voters, but I am 
 willing to put both House and Senate upon the 
 basis of legal voters, if we cannot have them upon 
 the principle of equality. For these reasons, I 
 hope this Convention will have the good sense to 
 secure the adoption of this Constitution, as I 
 think they will, if they adopt either of these 
 plans, but without which, I do not believe the 
 people will accept of it. 
 
 Mr. ALYORD, for Montague. I think there 
 are two fatal objections to the plan proposed by 
 the gentleman from Taunton, (Mr. Morton). In 
 the first place, by putting forth these three ques 
 tions to be acted upon by the people at the same 
 time, and in the manner proposed by him, his 
 plan will practically defeat his object. Every 
 man who prefers the existing system to either of 
 those proposed, will, of course, vote upon the first 
 question in the negative. Two other classes also 
 will be likely to vote in the negative upon that 
 question. Gentlemen who prefer the system pro 
 posed by this Convention, to the present existing 
 system, but who yet fear the adoption of the dis 
 trict system, and would rather continue as we are 
 than adopt that system, will vote " no " upon the 
 first question, so as to make no change, because 
 they fear that the effect of any change will be the 
 adoption of the district system. 
 
 On the other hand, gentlemen who desire the 
 district system, but who fear the adoption of the 
 system proposed by this Convention, will, from, 
 the fear of that, vote "no" upon the first ques 
 tion. These three classes together will be likely 
 to make a majority of " noes " on the first ques 
 tion, thus causing the defeat of both plans. 
 
 There is another fatal objection to the plan 
 proposed by the gentleman from Taunton. Your 
 system of representation in the Senate, as adopted 
 by this Convention, is unfair, unjust, and une 
 qual. That system of representation in the Sen 
 ate gives to one voter in the county of Suffolk 
 nearly three times the weight of a voter in the 
 western part of the State. Well, Sir, if that sys 
 tem in relation to the Senate stands, there should 
 be somewhere some counterbalancing advantage 
 to the interior sections of the State. The interior 
 finds its compensation, now, in the House of 
 Representatives. But by the plan proposed by 
 
 40 3 
 
 the gentleman from Taunton, if adopted, the cities 
 will still have the advantage in the Senate, and 
 the interior of the State will have no compensat 
 ing advantage in the House of Representatives. 
 
 These are fatal objections, in my mind, to the 
 plan proposed by the gentleman from Taunton. 
 The proposition of the gentleman from Natick, 
 obviates both of those objections. I stand here, 
 Mr. President, as a friend of the system of repre 
 sentation which has been adopted by this Con 
 vention. I have voted for it on every division, 
 and in each of its details ; and I believe it will 
 prove in its practical workings a fair, just, and 
 equal system, reflecting the public sentiment of 
 this State, as fairly, as justly, as any district sys 
 tem which the wit of man can devise. But, Mr. 
 President, I acknowledge the binding force of 
 that cardinal, republican, democratic doctrine, that 
 the people have the right, at all times, to amend, 
 alter, and totally change their organic law and 
 frame of government. If the majority of the 
 people of tins State desire the district system ; if it 
 be true, as has been said here, that that majority 
 wish that system incorporated into the organic 
 law, they have the right to demand it at the 
 hands of this Convention. We have no right to 
 refuse it to them. And if their will is to have a 
 system of districts, we cannot long withstand that 
 will, even if we desire to do so. In a government 
 like ours, and among a people like ours, the pop 
 ular will soon breaks through any contrivance, 
 however ingenious, to restrain it. If on the other 
 hand a majority of the people do not desire the 
 adoption of the district system, and I, in common 
 with the other supporters of town representation 
 believe that they do not, we, the friends of the 
 representation of municipalities, have nothing to 
 fear, and can lose nothing, by adopting the prop 
 osition of the gentleman from Natick. I regard 
 that proposition as simply a contrivance for ascer 
 taining what is the popular will upon this point. 
 If that will is to have a system of representation 
 by districts, then it neither can nor ought to be 
 resisted. If that will is to have a system of rep 
 resentation by municipalities, then we lose noth 
 ing, we risk nothing by putting forth this propo 
 sition to the people. In either view it is wise to 
 adopt it. I trust that the resolutions of the gen 
 tleman from Taunton will be rejected, and that 
 the plan of the gentleman from Natick will be 
 adopted. 
 
 Mr. ABBOTT, of Lowell. To the proposition 
 of the gentleman from Taunton, there is one ob 
 jection, which in my mind, is conclusive. The 
 proposition put forth by a majority of this Conven 
 tion, and adopted now into the proposed Consti 
 tution, not only expresses a principle, but gives 
 
586 
 
 HOUSE OF REPRESENTATIVES. 
 
 [70th day. 
 
 Friday,] 
 
 ABBOTT SARGENT DURGIN. 
 
 [July 29th. 
 
 the details ; it gives the manner of carrying it 
 into operation, so that every voter in this Com 
 monwealth, -when he comes to vote upon that 
 question, can see precisely how it is going to 
 operate upon himself. Now, the objection I have, 
 and have had throughout, to the district system, 
 is that it is unfair for this reason : that those in 
 favor of the district system merely enunciate a 
 principle ; simply say, that the Commonwealth 
 shall be divided into districts, upon the principle 
 of equality. That is easy enough to say, and every 
 man can understand the principle. But, after 
 you have enunciated the principle, it is quite a 
 different thing ; and not so easy a matter to carry 
 that principle out into operation, so that the peo 
 ple shall be satisfied with the scheme carried into 
 operation. In the one case, in the case of the 
 basis adopted by the majority, you have the details, 
 the body, the blood and the bones, and in the 
 other case, you have merely the spirit without 
 even a skeleton. Every man will see that the 
 principle is right, that every person should have 
 a political equality of rights ; but, Sir, the diffi 
 culty is, in this Commonwealth, divided into 
 towns as we are, to carry that into practical opera 
 tion. I believe, that if any district system based 
 upon equality, were absolutely reduced by this 
 Convention to a system, and your districts were 
 made, and, as made, put before the people, it 
 would be the strongest argument used in favor of 
 the system which we have adopted. 
 
 Now, Sir, I go for the proposition of the gen 
 tleman from Natick, for this reason : if the people 
 of this Commonwealth do, in fact, desire the dis 
 trict system, I am quite content that they should 
 try the other system, if they have the system re 
 duced to a system. If they have the districts 
 marked out and placed before them, I will be 
 willing to go to the people of this Commonwealth, 
 at any time within ten or fifteen years, with 
 confidence, that they will reject any district sys 
 tem, whenever that system shall be reduced to 
 practice, so that every man can see in what posi 
 tion he is putting himself by voting for it. Every 
 man could look to his district and see where he 
 was. Carry that into practice, and there will be 
 no trouble about the district system. Sir, I have 
 great confidence in the system which we have 
 adopted. I believe there is great fairness in giv 
 ing to the people of this Commonwealth, a ma 
 jority of them, not a plurality, not a body chosen 
 on our system, after having tried our system for 
 two years, to say whether they will retain it, or 
 whether they will have a district system when it 
 is worked out in practice. But I do object to the 
 proposition of the gentleman from Taunton, which 
 puts a mere principle to the people of this Com 
 
 monwealth, and which does not put to them the 
 practical workings of that principle, so that they 
 can see for themselves for what they vote. 
 
 Mr. SARGENT, of Cambridge. The gentleman 
 from Lowell, (Mr. Abbott,) objects to the propo 
 sition presented by the gentleman from Taunton, 
 from the fact that it does not present the details of 
 the system, and because, as he says, there is neither 
 blood, nor bones, in the system aye, not even a 
 skeleton. Now he has voted for the district sys 
 tem for senators ; he has put that before the peo 
 ple; and I ask him where the blood and the 
 bones, or the skeleton of that system is ? He 
 there puts forth a principle, just as we propose to 
 put it forth by the measure presented by the gen 
 tleman from Taunton, without the blood, the 
 bones, or the skeleton. But he objects that we 
 put the representative system forth upon the same 
 basis. Now, I say to that gentleman in reply, 
 if he is not afraid of his senatorial system, if he 
 will give us the blood, the bones, or even the 
 skeleton of those districts, we will give him the 
 blood, and the bones, of our representative dis 
 tricts, and go with them before the people. That 
 is what we wish to do. 
 
 Now, Sir, the gentleman says he puts this 
 question into the hands of the majority of the 
 people of the Commonwealth to decide. I take 
 a different view of the subject ; he puts it into 
 the hands of the legislature, controlled by the 
 friends of the very system you have adopted ; a 
 legislature elected under a system by which one- 
 third part of the people, and they opposed to the 
 system, have the power to say how these districts 
 shall be formed, and they can, if they choose, 
 form them in such a way that not ten thousand 
 men in the Commonwealth will vote for them. 
 You propose to put the question to the people in 
 that way, and if they reject it, you will say they 
 are not in favor of the district system. I say give 
 us the alternative, and if the gentleman wants 
 the districts drawn out, give us the senatorial 
 districts upon which we can base it, and we will 
 draw it out and put it to the people, with the 
 blood and the bones in it, so that they can clearly 
 comprehend it, and we will cheerfully abide the 
 result. 
 
 Mr. DURGIN, from Wilmington. I may say 
 I am deadly opposed to the district system, and, 
 as I have said before upon this subject, I do not 
 believe that the people of this Commonwealth 
 desire it. If I really thought they did desire it, 
 I should go for it. But, Sir, I should go for it 
 on the same principles and for the same reasons 
 that God gave to his ancient people a king. He 
 gave them Saul, the son of Cis, who ruled them 
 as with a rod of iron, until they had a king to 
 
70th day.] 
 
 HOUSE OF REPRESENTATIVES. 
 
 587 
 
 Friday,] 
 
 DURGIX CHURCHILL DAVIS. 
 
 [July 29th. 
 
 heir heart s content. So I might go for giving 
 them a district system. But it is my opinion, 
 that though the people might want a district sys 
 tem, yet it would be detrimental to the highest 
 and lasting interests of the Commonwealth. This 
 is my serious, solemn conviction. Now I want 
 it distinctly understood, that if I go for the pro 
 position of the gentleman from Natick, it will not 
 be because of any want of confidence in the sys 
 tem adopted by this Convention. I have perfect 
 confidence that the people will adopt it, notwith 
 standing the warm argument of my friend from 
 Tall River, (Mr. Hooper). He was the warm 
 friend of the district system, and that accounts for 
 his warmth of soul upon the subject. But he 
 sees, not with my glasses, or with my eyes, but 
 his own. The district system will be attended 
 with insuperable objections. You bring many 
 of these towns together with diverse interests, and 
 the match and marriage of them is not made by 
 themselves, but by a foreign power. You bring 
 these towns up, and say you want to unite them 
 in wedlock. But they say we cannot submit to 
 that. We cannot submit to being united to such 
 and such a town, and, unless we have the power 
 and the voice to determine the matter, we will not 
 submit to it. 
 
 But if the people really desire it, as a kind of 
 quietus, I don t know, after all, that I shall say 
 no to that proposition, although my confidence in 
 the present system is strong, and not at all weak 
 ened by any fear that the people will not approve 
 of it. For the last fifteen years the small towns 
 might have had the district system if they would. 
 But there is not a single instance in which they 
 came together. 
 
 If the system of the majority be adopted, the 
 small towns have the privilege of coming together 
 and forming districts, and some of the towns may, 
 perhaps, avail themselves of the privilege, but you 
 will not find a majority, if any of them, that will 
 unite. I think, therefore, it is safe ; it will do 
 no good, and it will do no harm. Gentlemen are 
 afraid of the press. Why, Sir, what harm can a 
 newspaper article do? Anybody can write a 
 newspaper article, but it will not produce any 
 disastrous effects at all. I will not for a moment 
 entertain the least degree of fear, or want of con 
 fidence in the system that has already been adopt 
 ed in this Convention. If I vote for the amend 
 ment of my friend from Natick, I wish it to be 
 understood that I vote for it, not because I have 
 the least want of confidence in the system adopted 
 by the majority, but for the sake of a quietus, to 
 gratify the peculiar feelings of some of the mem 
 bers of the Convention, and perhaps of some peo 
 ple out of the Convention. That is the only reason 
 
 why I vote for the amendment. And, Sir, if I 
 vote for the amendment, it will be for this addi 
 tional reason : that the district system there pro 
 posed is clear and distinct, and the people voting 
 on it will act understandingly act upon some 
 thing not imaginary, but something tangible 
 something comprehensible. 
 
 Mr. CIIUIICHILL, of Milton. When this 
 subject was under discussion, sometime since, I 
 was in favor of the district system. I am still in 
 favor of that system. But, Sir, although I should 
 prefer to have the plan we have adopted wholly 
 changed, or materially modified, still, as it is 
 decidedly preferable to the old system, because it 
 districts the cities, I think I can conscientiously 
 support it, before the people, with most of the 
 other reforms adopted by this Convention. Wheth 
 er the proposition of the gentleman from Natick, 
 (Mr. Wilson,) is accepted or not, I may therefore 
 support the system adopted by the Convention, 
 by my vote at the polls. Still, I trust, and sin 
 cerely hope, the proposition of the gentleman 
 from Natick will be adopted. While it does not, 
 necessarily, imply any want of confidence in the 
 system which the Convention has seen fit to 
 adopt, I believe it will add incalculable strength 
 to the cause of reform. It will enlist in favor of 
 the reforms submitted by the Convention, the 
 support of many members of the majority in this 
 Convention who have opposed your representa 
 tive system. Sir, I believe, as has been stated 
 by the gentleman from Lowell, (Mr. Butler,) 
 there may be some doubt whether the district 
 system, if submitted to the people, would be 
 adopted by them. But I believe there is no dan 
 ger or difficulty whatever, in submitting the al 
 ternative, and I ask those who have firmly and 
 successfully stood by town representation, to give 
 their friends who differ from them, an opportu 
 nity to submit the district system to the people. 
 Whether the people are in favor of the system 
 which has been adopted, or prefer the other, can 
 only be known by voting in favor of the propo 
 sition of the gentleman from Natick, which sub 
 mits both plans. 
 
 Mr. DAYIS, of Plymouth. I have uniformly 
 recorded my vote against the proposition which 
 has received the sanction of the Convention. 
 But I feel it incumbent to say a few words in 
 regard to the proposition of the gentleman from 
 Taunton, (Mr. Morton,) and that of the gentle 
 man from Natick, (Mr. Wilson). 
 
 I consider myself, Mr. President, as fully and 
 fairly beaten in the Convention, upon the ques 
 tion of representation. So far as my own views 
 are concerned, I have not been convinced, as the 
 gentleman states he has, of the fairness, the jus- 
 
588 
 
 HOUSE OF REPRESENTATIVES. 
 
 [70th day. 
 
 Friday,] 
 
 DAVIS. 
 
 [July 29th. 
 
 tice, and the equality of the system of representa 
 tion which has been adopted here. But inas 
 much as it has received the full, and apparently 
 the hearty sanction of the majority of the Con 
 vention, I think it is not for us who are in the 
 minority, to think we can exact terms upon which 
 we are to get a more equal system of representa 
 tion. We all agree that the system submitted 
 by the gentleman from Natick is more equal than 
 that adopted by the Convention ; and if the prop 
 osition of the gentleman from Taunton is voted 
 down, I shall vote for it. It is not for us to dic 
 tate the terms upon which the question is to be 
 submitted to the people, and for one, I am wil 
 ling to take what I can get. I think it my duty, 
 at this time, to go for what the majority are wil 
 ling to give us upon this question. 
 
 Now, Sir, for one, I should greatly prefer that 
 a proposition should be submitted to the people, 
 at this time, like, or something like, that pro 
 posed by the gentleman from Taunton. I can 
 see no real objection to offering it as an alterna 
 tive proposition. I see no reason why it should 
 be regarded as disastrous to the proposition pre 
 sented by the majority ; but I see sufficient reason 
 for it, in the fact that it would present an answer 
 to the argument which has been repeatedly pre 
 sented here which was conclusive in the mind 
 of the gentleman for Marshfield, whose speech, 
 permit me to say, it seemed to me, was stronger 
 in the head than in the tail. His argument was 
 founded if I understood him rightly upon the 
 supposition that the people were not ready for 
 the district system. Another gentleman took the 
 same ground in his argument. They are in favor 
 of the district system, but give their sanction to 
 the system proposed by the majority, upon the 
 ground that the people are not prepared to receive 
 the district system. The same argument pre 
 vailed in a previous Convention. It is an argu 
 ment that has thus far been fatal to the district 
 system, and for this reason, if for no other, I am 
 in favor of the proposition of the gentleman from 
 Taunton, for the purpose if I may be allowed 
 the expression of clinching the nail, and of giving 
 the people one opportunity of saying for them 
 selves, whether they are ready for the district 
 system or not. How long are we to reform the 
 Constitution, and call Constitutional Conventions 
 in Massachusetts, and allow the argument which, 
 I must confess, savors rather too much of the pol 
 itician, which looks a little too much like being 
 designed to tickle the ears of the people to pre 
 vail, that the people are not yet prepared to receive 
 the district system ? When are you going to find 
 out whether the people are ready or not ? Now 
 I submit that here is an opportunity presented, 
 
 in the proposition of the gentleman from Taun 
 ton, for solving that problem of ascertaining 
 whether the people are ready or not, without 
 hazarding the other reforms which you propose 
 without hazarding the adoption of the Consti 
 tution as a whole. If you do not distrust the 
 system you have recommended, why not give the 
 people an opportunity of saying which they like 
 best ? Why allow the argument to be adduced, 
 year after year, against the district system, that 
 the people are not ready to receive it, without 
 giving them an opportunity of verifying the as 
 sertion ? 
 
 It is for that reason, that I prefer we should 
 submit at this time alternative propositions. I do 
 not believe the people are so weak, so ignorant, 
 or so confused, that they cannot read and under 
 stand two propositions at the same time. I do 
 not believe, either, that if we present a district 
 system, the people ask to have the districts cut 
 and dried beforehand. I believe there is sense 
 and justice enough in Massachusetts, in the minds 
 of the people, to say whether they are in favor of 
 a district system, each district to be comprised of 
 an equal number of voters or inhabitants, as the 
 case may be, without waiting to see whether the 
 line will cut through the corner of this town or 
 the corner of that. I am opposed to a district 
 system that shall divide the small towns ; but I 
 can see no good reason why the general proposi 
 tion of a district system should not be submitted 
 at this time to the people, as an alternative prop 
 osition. 
 
 But, Sir, I rose merely to state my views upon 
 these propositions, and not to go into any argu 
 ment upon them. I am willing to vote for the 
 proposition of the gentleman from Natick, believ 
 ing that I cannot get the other proposition. I 
 will go for submitting a proposition to the people 
 for a district system, founded upon voters, for the 
 purpose of allowing the people the opportu 
 nity of once expressing their minds upon this 
 subject ; and and I do not see how they are to 
 have the opportunity, unless we accept the prop 
 osition of the gentleman from Natick. If it is 
 true, as gentlemen agree, that the people are not 
 prepared for such a system, I am in favor of giv 
 ing them an opportunity of saying to their fellow- 
 citizens and the world, that they believe a repub 
 lican commonwealth cannot exist here in New 
 England, founded upon an equal and just repre 
 sentation of the popular sovereignty. I want 
 them to have the opportunity of saying they be 
 lieve a House should be made into a Senate, and 
 founded upon corporate sovereignty, and that the 
 Senate should be made into a House, the strongest 
 element in which shall be the city of Boston. 
 
70th day.] 
 
 HOUSE OF REPRESENTATIVES. 
 
 589 
 
 Friday,] 
 
 SCHOULER. 
 
 [July 29th. 
 
 Since the debates in Committee of the Whole 
 upon the system which the Convention has sanc 
 tioned, have been published for I did not have 
 the pleasure of hearing them I have read them, 
 and I am more and more convinced that we have 
 adopted a system of representation, by which, in 
 principle, we have turned the House of Repre 
 sentatives into a Senate, and made the county of 
 Franklin and the western counties of the State, 
 with their corporate town rights, the strongest 
 element of power, while we have made the Sen 
 ate the popular branch, and we have made the 
 non- voters of the city of Boston the strongest 
 element of power there. Sir, I am in favor of 
 submitting some proposition to the people which 
 shall provide for more equal representation. 
 
 Mr. SCHOULER, of Boston. The proposi 
 tion of the gentleman from Taunton (Mr. Mor 
 ton) is a clean, clear proposition. It is one that 
 every-body understands. It brings the question, 
 whether you will adopt a district system, before 
 the people some two years sooner than under the 
 proposition proposed by the gentleman from Na- 
 tick. It brings it before them at a time when 
 they are called upon to consider and decide other 
 questions of fundamental law, and therefore there 
 is a propriety about it. It is connected with the 
 adoption of the Constitution as amended, and 
 will come before the people at a time when their 
 attention is called to the subject. I am surprised 
 to hear the gentleman from Fall River (Mr. 
 Hooper) give up this proposition without a 
 trial, because he thinks it cannot be carried. 
 Sir, we should never carry anything, in this or 
 any other body, if the friends of the measure give 
 way for fear they shall not. Why not stand up 
 for the proposition of the gentleman from Taun 
 ton, until it is voted down, and then we can try 
 something else perhaps the proposition of the 
 gentleman from Natick. But, Sir, I wish to call 
 the attention of the Convention to the details of 
 that proposition. If the proposition of the gen 
 tleman from Taunton is voted down and I hope 
 it will not be then we must take the proposition 
 of the gentleman from Natick, or nothing. Now, 
 Sir, that amendment does not provide for submit 
 ting the question to the people, in 1856, fairly. 
 It is to be submitted in a way that will be sure 
 to kill the district system, if anything can, be 
 cause there never was any measure so complicated 
 as the details of a district system must necessarily 
 be, that did not gain enemies. If you submit the 
 details of the system along with the system itself, 
 I care not with how much fairness the districts 
 may be apportioned, some towns will want to be 
 in another district, some towns will complain be 
 cause they are divided, and others because they 
 
 are not divided ; and therefore, they will vote 
 down the whole system. It will not be submit 
 ting the question, whether there shall be a district 
 system, fairly to the people. If the proposition 
 of the gentleman from Taunton is voted down, I 
 shall then submit an amendment to the proposition 
 of the gentleman from Natick, to strike out that 
 portion of it which provides for submitting the de 
 tails of the district system, so that the plain, clear 
 proposition may be presented to the people in 1856 , 
 whether there shall be a district system for the 
 election of representatives and for the election of 
 senators, founded upon legal voters or upon pop 
 ulation, as the case may be. I cannot understand 
 why gentlemen should wish to legislate in the 
 Constitution upon this subject ; for it is legisla 
 tion, and nothing but legislation. What we want 
 in the Constitution is principle, and not the de 
 tails of legislation. Sir, I tell gentlemen there is 
 something behind all this. These details are put 
 in to kill the proposition itself when it goes out to 
 the people. It is only presented as a sort of de 
 coy duck, to draw votes for the system the ma 
 jority have adopted. 
 
 Sir, I can see no argument against such an 
 amendment as I have indicated, to strike out the 
 details of the system which it is proposed to sub 
 mit. Let us have the plain proposition presented 
 to the people in 1856, whether they will have a 
 district system, or not. I am willing to take the 
 proposition of the gentleman from Natick, with 
 that amendment, if the proposition of the gentle 
 man from Taunton is voted down. 
 
 But, what do we really gain by such a propo 
 sition to submit the question to the people in 
 1856 ? The legislature may, at its next session, 
 if it chooses, submit the question to be voted on 
 by the people in 1855. They have the power, 
 under the Constitution, to submit the question to 
 the people at any time. But, if the proposition 
 of the gentleman from Natick, is put forth as a 
 compromise, and if the gentlemen of this Con 
 vention will vote to strike out of that proposition 
 its detail, so that the people may have the oppor 
 tunity to vote yea or nay upon the principles of 
 the district system, without being encumbered by 
 the details by the division of towns, for and by 
 local questions as to the formation of districts I 
 will vote to incorporate it into the Constitution ; 
 but, unless such an amendment is adopted, I shall 
 vote against it, because it is all a sham, and 
 nothing but a sham, to get votes for the Consti 
 tution. 
 
 I would rather have the Constitution remain as 
 it is. I hope those gentlemen who are in favor of 
 a district system, will vote in favor of a district 
 system, and in that category I hope to find the 
 
590 
 
 HOUSE OF REPRESENTATIVES. 
 
 [70th day. 
 
 Friday,] 
 
 BlITLEll SCHOULER. 
 
 [July 29th. 
 
 gentleman from Fall River, (Mr. Hooper) ; and if 
 that proposition be voted down, I hope the propo 
 sition of the gentleman from Natick, will be 
 either amended or rejected. 
 
 Mr. BUTLER, of Lowell. The Convention 
 having adopted, as the basis of representation, 
 the plan which I had simply the honor of select 
 ing from the various plans proposed, not claim 
 ing for it any originality, I deem it not out of 
 order, nor improper, that I should say a word 
 upon this plan which is now proposed. A nd I wish 
 to say, first and foremost, that my judgment con 
 tinues to approve of the plan of representation by 
 towns. And, in any event, whatever may hap 
 pen, until I am much better advised than at pres 
 ent, I shall vote for, and advocate to the extent 
 of the poor ability God has given me, town rep 
 resentation. But, Sir, it is proposed on the other 
 hand, that there should be a system of district 
 representation left to the people, and we are 
 sometimes taunted with being afraid of the 
 people. Now, Sir, I am not afraid of submit 
 ting to the people any fair proposition. And if 
 I considered the proposition of the gentleman 
 from Taunton a fair one not that he has meant 
 anything wrong by it but if I considered it a 
 fair proposition, as opposed to town representation, 
 I would vote to have it go to the people. But I 
 do not so consider it ; on the other hand, that the 
 plan- which was suggested by the gentleman from 
 Natick, has the elements of fairness as opposed to 
 town representation, and I am. willing to try the 
 sense of the people upon it, if the Convention 
 are so willing. 
 
 I will give my reasons for the distinction. 
 Every man knows the disadvantages of town 
 representation ; every man sees the boundary of 
 the town he lives in; every man knows exactly 
 where the town lines are ; he has it all mapped 
 out in his mind and laid down, fixed and deter 
 mined. But, the system of the gentleman from 
 Taunton, is an ideal system, a theoretical system 
 which is made on paper without being mapped 
 out, and is made, when voted for, in the mind of 
 every voter, as his own interest dictates. Every 
 man who favors it, says I am in favor of it ; first, 
 because it is just, and I am in favor of it sec 
 ondly, because, whatever I find bad in town rep 
 resentation, I can have remedied in my district. 
 That district will be made just so as to suit me, I 
 shall be exactly satisfied and contented in that 
 district. Each man makes in his own fancy, a 
 beau ideal district, with all the pleasantest men he 
 can think of around him, and he puts himself in 
 the centre of that district and sees himself elected 
 to the legislature from the district, and so hurras 
 for the district system. This happens from a beau 
 
 ideal ; from every man making a system to suit 
 his own mind. But, when a district system is sent 
 out to the people, I want one as the towns are, 
 mapped out, the lines running here, taking in this 
 neighbor and leaving that one out ; bringing in 
 this valley and that mountain, so that it can be 
 seen that it brings this set of men and that set of 
 men together. Then we can see the difference, 
 and see what there is of it, and see what you 
 mean. And I can tell you it will look as differ 
 ent to men after they see its beauties, and its de 
 fects, as they are made apparent, as the angel 
 girl some men court, looks different from the slut 
 tish wife they find they have married. [Laugh 
 ter.] One is all that is lovely, and good, and 
 beautiful ; the other is a very different affair. So 
 let me tell gentlemen it will be with the district 
 system. Leave every man to make a district to 
 his own mind, and he will make a splendid dis 
 trict, having everything of beauty and equality in 
 it. But, if he at first sees the lines are to be 
 run here, and the lines run there, he will not ac 
 cept it. 
 
 I was neither amazed nor surprised when our 
 friends from Boston wanted to district their city 
 for common councilmen ; they did not put it on 
 population, for it might have brought Beacon 
 Street near to Ann Street ; they took a basis 
 which has been taken in this proposition, founded 
 upon legal voters. I do not desire that every man 
 shall make the lines to suit himself. I want 
 Beacon Street to see that she is in juxtaposition 
 with Ann Street, and then see if Beacon Street 
 would vote for the district. I want Fall River 
 and Hull put in juxtaposition, and see if they 
 will vote for such a district. "When this is done, 
 I am ready that such a district system shall go 
 out to the Commonwealth. But when you get 
 the ideal beauty and the theoretical constitution 
 which the French theorists made, it is a cheat 
 and a humbug, and men are voting for what they 
 do not want. 
 
 Mr. SCHOULER. May I ask the gentleman 
 one question ? 
 
 Mr. BUTLER. Yes, if you will be quick, as 
 my time is limited. 
 
 Mr. SCHOULER. I would like to know if 
 the district system for senators which the gentle 
 man voted for, is an ideal system ? 
 
 Mr. BUTLER. O, yes, Sir ; and this is just 
 the difference ; and I will give you a comparison. 
 The senatorial district system will cut the Com 
 monwealth into forty districts. It will make the 
 same difference that there is between cutting up a 
 pig into four quarters, and cutting him into 
 sausage meat. [Laughter.] I understand the 
 senatorial division to be the cutting into four 
 
70th day.] 
 
 HOUSE OF REPRESENTATIVES. 
 
 591 
 
 Friday,] 
 
 SCHOULER BUTLBR GARDNER. 
 
 [July 29th. 
 
 quarters ; but when you come to sausage meat, I 
 wish to know whether I shall get the piece I 
 prefer. That is the difference, and that is the 
 trouble I have with the proposition of the gentle 
 man from. Taunton. 
 
 Mr. SCHOULER. As I understand the dis 
 tinction which the gentleman makes, it is that he 
 prefers the whole hog rather than the pieces. 
 
 Mr. BUTLER. Precisely. Then I would not 
 have gentlemen build too much on my compari 
 son ; I made it for the gentleman from Boston. 
 That is the difference I make. I wish to know 
 which piece I am to have whether I am to have 
 the snout or the rib ; I want to know where I am 
 to come in for a share. Then I can know how to 
 vote. Every man, when he goes for the propo 
 sition of the gentleman from Taunton, expects to 
 get the middlings. 
 
 The reason why I support this form of district 
 system is, because I am in favor of town repre 
 sentation, and I mean to fight for it and stand by 
 it to the extent of my strength. But I do not 
 think there is any more danger of the adoption of 
 a district system, where we know the lines, than 
 there is of Cape Cod moving up to Berkshire. It 
 is an old maxim, "egnotumpro magnifico" the 
 unknown is taken for the magnificent ; " distance 
 lends enchantment to the view," and want of 
 knowledge has much the same effect. I want to 
 ask Berkshire when, by a district system, it is 
 proposed to be put alongside of Cape Cod now, 
 are you ready for that, or do you want to stay by 
 the old town ? Now, as I have said, to prevent 
 that result, we can give the power to the legisla 
 ture to make the districts. Or we may make the 
 system, and it will be so bad that the people will 
 not accept it. I would be willing to take the sys 
 tem published by the able and intelligent editor 
 of the Advertiser, in his paper, as the district sys 
 tem. I should be willing to go to the people 
 to-day, to know whether they would accept that 
 system or the town system, and abide the an 
 swer. I would be willing to have that put to 
 the people now ; only give me something 
 practical, something tangible, something that we 
 may see, that we can talk about and can point 
 out. I grant that the gentleman from Boston 
 (Mr. Schouler) is quite right, that if we make a 
 district system so that you can see the corners, it 
 will not be adopted. I know it. He says it will 
 bring up objections to it. I know it. I wish 
 to see those objections fairly tested. How does 
 the gentleman from Natick propose to do it ? He 
 proposes to leave the legislature to do it. If we 
 had time to make it, we could do it ; but we 
 have not, and we say we will leave it to the legis 
 lature. Let no man say you will have unequal 
 
 districts. Your population basis for the senate 
 will help to make the districts. Then make the 
 districts, make them as well as God has given to 
 human ingenuity to devise, and I do not care ; 
 they will fall to pieces as soon as flax, which 
 " falls asunder at the touch of fire." You cannot 
 make them so well but that they will crumble to 
 pieces. But when you can allow every man to 
 fancy a district as a beau ideal of his mind, or as an 
 illusion of a dream, he will make Utopian districts 
 alone, and I fear to put that to the people as a de 
 lusion which tends to lead their minds away from 
 the reality. Therefore, as at present advised, I 
 must vote against the proposition of the gentleman 
 from Taunton, as I always have voted against 
 it. 
 
 But, on the other hand, to show that I am not 
 afraid of the people ; to show that I am ready to 
 go to them with a district system which will be 
 tangible, the lines of which we can know and 
 see, as town lines are seen and known, I am 
 ready to vote for the plan suggested by the gen 
 tleman from Natick, to wit : Let the people ask 
 the legislature to make the districts ; and, then, 
 in God s name, if they want the system, let them 
 have it ; and, if they do not want it, I am sure I do 
 not wish to have them adopt it. These are my rea 
 sons for voting against the proposition of the gen 
 tleman from Taunton, and in favor of that of the 
 gentleman from Natick. If other gentlemen ap 
 prove them, I trust they will go with me ; if not, 
 I shall at least have the privilege of putting my 
 self right before the Convention. 
 
 Mr. GARDNER, of Boston. The cat is out 
 of the bag. Let the phonographic reporters of 
 this Convention put it down in black and white ; 
 let the people of this Comwonwealth know the 
 statements made by the gentleman from Lowell. 
 What are they ? He is afraid to trust the people. 
 His own words. He is afraid to let the people 
 say whether they will have single districts or 
 not. His own words. He is afraid the Utopian 
 scheme may be carried. His own words. He is 
 afraid 
 
 Mr. BUTLER. Mr. President 
 
 Mr. GARDNER. I presume the gentleman 
 will withdraw his words. 
 
 Mr. BUTLER. No, Sir ;. I will not withdraw 
 anything. I wish only to have that stated which 
 I did say. I deny that I said what he has stated. 
 That is as wide a mistake as he made before. 
 
 Mr. GARDNER. The gentleman will deny 
 it. But he is afraid to have this question go out 
 to the people, for fear they may decide to have the 
 district system ; he is afraid the Utopian delusion 
 may beguile them ; and he therefore fears a 
 popular majority may decide in favor of a district 
 
592 
 
 HOUSE OF REPRESENTATIVES. 
 
 [70th day. 
 
 Friday,] 
 
 GARDNER BATES. 
 
 [July 29th. 
 
 system, if the amendment proposed by the gen 
 tleman from Taunton is carried. 
 
 Now, what is he afraid of ? He has told us 
 that too. He has, very fortunately, kindly told 
 us, what he is not afraid of, as well as what he 
 does fear. Now, what is it? He is willing to 
 adopt the proposition of the gentleman from 
 Natick ; he is willing to send to the people a dis 
 trict system, provided it is cut and carved before 
 hand ; because, says the gentleman from Lowell, 
 I know that will not be adopted. Now, is not 
 this plain to the Convention ? Is not this per 
 fectly absurd, and nonsense, and ridiculous, to en 
 deavor to present a scheme for our adoption, which 
 the gentleman rises in his place and says of it, I 
 know that it will not be adopted. Now, I put it 
 to him ; if it does not convince him, I put it to 
 other members of the Convention, if it is not 
 the height of absurdity for us to pretend to adopt 
 the scheme of the gentleman from Natick, which 
 he has given notice of, when he rises and says, I 
 know it will not be adopted. Sir, he has con 
 fessed, not in language but in fact, his intention 
 to throw dust in the eyes of the people ; to hold 
 out to them a pretended proposition, with the 
 pretence of fairness, which, he says, he knows 
 they will never adopt ? Now, for one, I despise 
 any such proposition ; I disdain and spurn the 
 bribe ; I will not vote for anything that I know 
 the people will never sanction. The time of this 
 Convention is too precious ; the purpose for which 
 we were sent here is too sacred to trine in such a 
 way with our constituents. 
 
 Now, we have here a tangible and distinct 
 proposition, and I desire that the feelings and 
 views of the Convention shall be fairly and freely 
 expressed upon it. It is simply, in a few short 
 sentences, the opportunity of presenting the alter 
 native to the people of the Commonwealth, to 
 allow the legislature to district the State into 
 equal districts for the choice of representatives, in 
 contradistinction to town representation. This, 
 Sir, is fair, is honest ; and I appeal to every mem 
 ber of this Convention, that were it a question 
 between man and man, of simple every day hon 
 esty and morality, could he oppose it ? But, when 
 we come here under our sacred oaths of office; 
 when we come here as representatives of the Com 
 monwealth ; when we are their exponents, and 
 when their feelings, views, and wishes are doubted 
 or denied here ; can we then, as honest, and fair, 
 and just men, refuse to submit an ultimate de 
 cision to that great tribunal ? We shall soon 
 know who, here, are willing to trust the people. 
 Aye, more, we shall know who are willing that 
 the people shall decide which system they prefer. 
 
 This is a question which is separated from party 
 
 politics ; it is a question which ought not and 
 cannot, be justly mixed up with any party senti 
 ment whatever. It is simply a question whether 
 the people who sent us here shall prefer, and wish, 
 and require, one of two plain propositions. 
 
 Now, Sir, what arguments can be brought, 
 what reasons can be given, why this should not 
 be sent to the people to decide ? It is said here, 
 by the gentleman from Natick, that he fears this 
 question may cause confusion at the polls. I 
 can tell him that the people of this Common 
 wealth value too highly equal representation ; the 
 people of this Commonwealth are too intelligent, 
 and they know too well the value of equal rep 
 resentation, to allow a plain abstract question of 
 this kind to cause confusion at the polls. There 
 are too many churches and too many school- 
 houses in this Commonwealth, if not in Natick, 
 to permit the people to become confused by a 
 plain proposition of this kind. I would as soon 
 suppose a gentleman would say they would be 
 confused if a man should put the question to them 
 whether two and two make four, as that they 
 would be confused by a proposition of this kind. 
 If you ask the people whether two men in 
 Barnstable should equal one man in Franklin, or 
 whether one man in Franklin should outweigh 
 seven or eight men in Suffolk, the people would 
 be confused, and cannot give an honest, mathe 
 matical answer ! Is that the sentiment, is that the 
 opinion the gentleman from Natick entertains of 
 the people of Massachusetts ? He is afraid they 
 will be disturbed and confused by a question so 
 papable as that. That is the idea at which he is 
 alarmed. I ask this Convention if they go with 
 him in the fear ? 
 
 Now, I should like to have gentlemen rise 
 and state what possible objection there can be to 
 this proposition, except the alarming, wonderful 
 objection which the gentleman from Lowell has 
 already stated, the objection that he is afraid lest 
 the people will adopt this proposition, if it is sent 
 to them. If that is the argument, I hold that it 
 is conclusive that every member of this House 
 should send the proposition to the people. He 
 begs the question, or rather he acknowledges the 
 necessity of the question ; he acknowledges hat 
 the people want it ; he confesses they will adopt 
 it. Therefore, I say we are bound, by his own 
 showing, to send it to them, and let them have 
 the opportunity of trial. 
 
 Mr. BATES, of Plymouth. I have but a very 
 few words to say, and will detain the Conventiou 
 but a few moments in this stage of the debate 
 upon the question now before us. I have listened 
 with attention, for weeks, to the discussions upon 
 the question of representation, without having 
 
70th day.] 
 
 HOUSE OF REPRESENTATIVES. 
 
 593 
 
 Friday,] 
 
 BATES. 
 
 [July 29th. 
 
 participated in that debate. When I have heard 
 gentlemen, in derogation of the system of town 
 representation which has been adopted by thia 
 Convention, so repeatedly make the assertion 
 which has just been made by the gentleman from 
 Boston, (Mr. Gardner,) that one man in Frank 
 lin equals five or six in Suffolk, and when I have 
 known at the same time, that this Convention, 
 with but four or five dissenting votes, has formed 
 a district system, which in the election of sena 
 tors and councillors, gives to Suffolk County a 
 county which for the last twenty years has cast 
 less than one-half as many votes in proportion to 
 its population, as the county of Franklin its 
 full representation upon a population basis, I have 
 been strongly tempted to rise in my place and say 
 that I disdained any such comparison, but I have 
 not done so. I came here, Sir, a friend to town 
 representation, as a question of principle, nor 
 have I yet heard any arguments which have 
 shaken my convictions of its justice ; and when 
 I voted for a district system for senators and 
 councillors, upon a basis of population, I did so 
 with the expectation, if not with the understand 
 ing, that there was to be an equivalant in the 
 establishment of a basis of town representation 
 for the House of Representatives, and nothing but 
 such an expectation would have induced me to 
 cast such a vote. Now, if there is any one act 
 of mine in this Convention which I believe my 
 constituents will disapprove of more than any 
 other, it is, that in some stages of the question 
 though not on the final passage I supported a 
 population basis of representation for the Senate. 
 But, Sir, that act has passed, and I apprehend 
 this Convention is not to reconsider or reconstruct 
 it. Then we have adopted a system of town 
 representation for the House of Representatives. 
 I am not of that class of individuals who are 
 frightened by the bugbear stories about this basis 
 being unjust or unpopular, or that it is to trans 
 fer our whole government into the hands of a 
 very small portion of the people ; and least of 
 all, am I alarmed at the newspaper paragraphs in 
 regard to it, to which my friend from Wilming 
 ton, (Mr. Durgin,) has alluded. 
 
 Now, here is a proposition of the gentleman 
 from Taunton, (Mr. Morton,) and what is it ? 
 Why, it is said that it submits to the people a dis 
 trict system. What is the fact with regard to it ? 
 The moment it is contemplated to complete the 
 system before it is submitted to the people, the 
 gentleman from Boston, (Mr. Schouler,) rises in 
 apparent alarm, and says, that if you make these 
 districts so that the people can look at them, they 
 will reject the proposition. This, to my mind, is 
 the strongest argument which can be adduced to 
 
 prove that the people do not want a district sys 
 tem. Construct the districts just as they must be 
 constructed, ultimately, and let the people see 
 their boundaries, their advantages and their dis 
 advantages, and the admission of the most ardent 
 friends of the system is, that they will reject it. 
 But, it is said, put it to the people, and let them 
 " go it blind," as the saying is, and then if they 
 do not like the districts, when they are subse 
 quently constructed, they cannot help themselves. 
 And yet, these are the men who claim to be the 
 exclusive friends of the people. Now, if I have 
 to put anything to the people of Massachusetts, 
 I would put to them something which is tangible, 
 something which can be seen and understood, 
 and then if the people want it, I want them to 
 have it. I am the last man to distrust the peo 
 ple. And, when this proposition comes up here, 
 and it is admitted over and over again that if you 
 put the system in detail to the people, they will 
 reject it, I say that I am opposed to it, here, and 
 elsewhere. I have said that I was a friend of 
 town representation, and whatever influence I 
 may have, if I have any, and whatever ability I 
 possess, in the canvass which is before us, shall 
 be exerted in support of that system ; because, I 
 believe it to be just, and that it will most effectu 
 ally preserve the glorious institutions of our 
 Commonwealth. And, I desire to tender my 
 thanks to the gentleman from Boston, (Mr. Hale,) 
 for having submitted to the public in detail, the 
 proposition of the minority of the Committee, 
 which has been rejected by this Convention ; 
 because, that course will materially aid the 
 friends of town representation, in establishing the 
 justice of their system before the people. 
 
 But, Sir, what is this proposition of a district 
 system ? It is that you put the question to the 
 people, and let the legislature make the districts. 
 Now, if the legislature must make the districts, 
 why not let them make them first ? What is 
 there to fear ? We have been repeatedly told here 
 that we fear the people. Now, I would ask 
 whether it is those who say let the legislature 
 make the districts, and then let the people say 
 whether they want the districts as made, or 
 whether it is those who say if you want a dis 
 trict system, we will make the districts afterwards 
 to suit themselves. Which is it ? I apprehend 
 that no man will rise and say that it is the class of 
 men who put to the people what they must ulti 
 mately have, that they may see for what they vote, 
 who betray this distrust of the people. 
 
 Now, Sir, for these reasons, I am totally opposed 
 to putting out this intangible system of the gen 
 tleman from Taunton. The people cannot see it, 
 and cannot decide whether they want it or not. 
 
594 
 
 HOUSE OF REPRESENTATIVES. 
 
 [70th day. 
 
 Friday,] 
 
 BATES HALLETT. 
 
 [July 29th. 
 
 If districts are to be made, let them be constructed 
 first, and then the people will have something 
 which is tangible, and which they can understand, 
 and if they want it they are competent to say so, 
 and with their verdict, I shall be content. I had 
 not intended to support any alternate proposition, 
 but the gentleman from Natick has submitted a 
 plan which I have not before seen, but which, as 
 it appears at first blush, or upon the face of it, I 
 am induced to support, because it appears to be 
 fair, just and equal. It says to the legislature 
 elected by the people with a knowledge of their 
 duties, that they shall make these districts in the 
 best manner they can, and in 1855 submit them 
 to the people, and if those districts are just, and 
 the people approve of them, they will say so by 
 their votes. I shall vote for that proposition, if I 
 have an opportunity to do so, because it carries 
 justice upon the face of it. 
 
 But there is another strong reason why I shall 
 vote for it. At the same time it presents to the 
 people of Massachusetts the question of having 
 forty senatorial districts upon the basis of legal 
 voters. This is a question which I wish the 
 people of the Commonwealth to have an opportu 
 nity to pass upon. They will first say if they 
 will have a senatorial basis upon population, 
 which gives to fourteen hundred immigrants who 
 happen to land in Boston on the day previous to 
 taking the decennial census, as much representa 
 tion as five independent towns in the Common 
 wealth, by giving to those towns a partial equiv 
 alent in the House, and at the same time it gives 
 them an opportunity to decide between this and a 
 district system based upon the legal voters of the 
 State. Under these circumstances, I shall support 
 the proposition of the gentleman from Natick, if it 
 comes before the Convention. I am opposed to 
 the proposition of the gentleman from Taunton, 
 and shall vote against it. For these reasons, and 
 these only, am I induced to vote to submit an 
 alternate proposition to the people, inasmuch as it 
 says to them, you see what it is ; if you want it, 
 vote for it ; if you do not want it, vote against it ; 
 and the question is settled, and that, too, by the 
 only tribunal which has a right to make the de 
 cision, and whose judgment is final. 
 
 Mr. HALLETT, for Wilbraham. I am greatly 
 obliged to the Chair for the privilege of the floor. 
 I have been put wrong here for a day or two, and 
 I find myself placed in a somewhat indefinite 
 position. I think it is necessary for us who have 
 advocated town representation, to look back and 
 see what the basis upon which we stand is. I 
 have been advocating, with other gentlemen, the 
 right of towns, as several communities and muni 
 cipal corporations, to representation. There were 
 
 gentlemen who contended that this claim of the 
 towns was not right or well founded, and that 
 there should be a district system disregarding all 
 town rights. Now, a proposition is submitted by 
 the gentleman from Natick, which gives them the 
 opportunity to propose to the people just what 
 they want, if they honestly expressed what they 
 wanted. Why do the advocates of a district sys 
 tem now oppose this fair offer ? It seems to me 
 there is the same inconsistency in some gentlemen 
 in regard to this question, which I noticed when 
 we sought to compromise on the plurality ques 
 tion. I and others wished to retain the majority 
 system, and voted for the majority principle. But 
 the moment a sufficient number to make a ma 
 jority for plurality, of those gentlemen who had 
 acted with us voted for the plurality system, those 
 who had before most vehemently insisted on a 
 plurality, came right round and voted against the 
 plurality system. So that the question seemed 
 not to be acted upon from principle, but as to 
 who made the proposition, and how it would 
 affect parties. Shall we take such a view of sub 
 jects here ? It is neither wise nor expedient to do 
 so. How do we know what will be the effect 
 upon parties of any rule we lay down, that will 
 last for any long period ? 
 
 Having explained this position, in which I am 
 content to stand on the record, I wish to answer 
 the inquiry of the gentleman from Boston, (Mr. 
 Crowninshield,) who desires to know what rea 
 sons there are why the proposition of the gentle 
 man from Taunton should not be submitted, as 
 a part of the Constitution, to the people. I can 
 give him the best reason in the world, and I think 
 a perfectly conclusive reason why I cannot go 
 for that proposition, and why it seems to me no 
 gentleman should go for it. And that is, because 
 it leaves to the legislature an unrestricted power 
 to make the Constitution in that particular, instead 
 of having the people make it, or pass upon it after 
 the legislature propose it ; and I deny the right 
 or the power of the legislature to make any part 
 of a Constitution. What is the proposition? 
 Why, that you shall give to the legislature the 
 power to determine, without appeal to the people, 
 whether the whole principle of representation in 
 Massachusetts, which has stood for two hundred 
 years, shall be entirely changed or not. I would 
 just as soon give to the legislature the power to 
 determine, without asking the people, whether 
 this government shall be a republican govern 
 ment or a monarchy. That is the objection to 
 the proposition of the gentleman from Taun 
 ton ; because he proposes that we shall put the 
 question to the people in the abstract : " Will you 
 have a district system, or not, for representatives ? " 
 
70th day.] 
 
 HOUSE OF REPRESENTATIVES. 
 
 595 
 
 Friday,] 
 
 HATHAWAY HALLETT. 
 
 [July 29th. 
 
 And if the people should say, " Why, yes, we 
 will have a district system," what do they answer? 
 and what is the effect, if this proposition prevails ? 
 It is carrying out the theory of certain gentlemen 
 who propose to submit to the people the question 
 whether they will have a Convention, and then, 
 after the people answer "yes," leaving the whole 
 power with the legislature to make that Conven 
 tion what they please, or repeal it when they 
 please. This was just the doctrine on which the 
 attorney- general told us that our present Conven 
 tion was called ; but we repudiated it as wholly 
 unsound doctrine. 
 
 Mr. HATHAWAY, of Freetown. I would 
 inquire if we are not in the same position with 
 regard to the Senate r 
 
 Mr. HALLETT. I think the gentleman was 
 answered, with reference to that, by the gentle 
 man from Lowell, (Mr. Butler). That is not my 
 point. It does not affect town rights or represen 
 tation. The proposition now before us, of the 
 gentleman from Taunton, (Mr. Morton,) gives to 
 the legislature the whole power, at its mere plea 
 sure, of dividing, and cutting, and carving this 
 whole Commonwealth into representative districts, 
 without the control, or consent, or subject to the 
 veto of the people ! That is the proposition. 
 Therefore, I say it is giving to the legislature the 
 power of prescribing what the limit and what the 
 basis of your representation shall be in this Com 
 monwealth, and what party shall be in the ascen 
 dency. We go quite far enough in doing that to 
 which the gentleman from Freetown has alluded, 
 in districting for Senators. Yes, Sir, we go quite 
 far enough in leaving the legislature to make forty 
 senatorial districts. But that is senatorial repre 
 sentation, and does not affect town rights. Sena 
 torial representation does not exist as a locality, 
 or as a corporate right of a municipal community. 
 But the right of representation in towns exists as 
 a corporate right which you have no right to 
 destroy, unless by the representative consent of 
 those who now enjoy it. That is a fundamental 
 principle, and you must either adhere to town 
 representation on that principle, or abandon it. 
 If those who adhere to town representation as a 
 right, cannot stand there, they cannot stand any 
 where. Now, as this is an inherent right of the 
 original organization of Massachusetts represen 
 tation, and as towns are constituted upon corpo 
 rate or community representation, I say you 
 have no right to give to the legislature the exclu 
 sive power over a question which may, in their 
 disposition of it, destroy that right without the 
 consent of the people. 
 
 That is a fatal and inherent objection to the 
 proposition of the gentleman from Taunton, and 
 
 it is inadmissible, as it seems to me, upon any 
 principle on which we stand here as a representa 
 tive body. 
 
 On the other hand, the provisional proposition 
 submitted as a compromise by the gentleman 
 from Natick, is in conformity with the rights of 
 the towns, and the rights of the people to pass 
 upon a distinct question of district representa 
 tion. 
 
 First, it provides that all the towns, by their 
 representatives in the House, shall have the right 
 to be heard in preparing the details of the system 
 of districting the State, which the legislature are 
 required to submit to the people. Secondly, it 
 provides that the whole people may have a dis 
 trict system of representation according to the 
 plan submitted to them, whenever the aggregate 
 majority shall consent to adopt it. That will 
 present the question of districting to the people in 
 a tangible form, and they will decide upon it by 
 a majority of the whole people, including all the 
 towns. Now, Sir, it is conclusive, that if gentle 
 men who advocate a district system are desirous 
 of having the question fairly put to the people, 
 not in the abstract, but in well-considered detail, 
 here is the best, surest, and fairest plan that can 
 be devised for testing the question, by a direct, 
 distinct vote upon it of the whole people of the 
 Commonwealth, in which vote the cities and 
 large towns will have all the benefit of their num 
 bers in determining the majority. 
 
 The plan is throughout the result of represent 
 ative and popular action. In the first place, the 
 system of exact details and limits must be prepared 
 and submitted to the Senate and House, who have 
 got to put it forth to the people. 
 
 Who are to consent to it ? Why, the legisla 
 ture, who will be the representatives of all the 
 towns in one branch of it, and without whose ac 
 tion this cannot be done ; and if it is done by 
 their action it is done by their consent. They, as 
 the representatives of these communities, must 
 agree to submit a district proposition to the peo 
 ple, which is to divide the State off into two hun 
 dred and forty or three hundred and twenty 
 representative districts. Then you have the 
 consent of the representatives of the towns to the 
 form of proposition, and, consequently, the con 
 sent of the whole constituency that such a propo 
 sition should be submitted to the people. If the 
 people adopt it, they adopt the proposition 
 distinctly and definitely, and with their eyes 
 open. And thus this plan, passed upon by the 
 people in all its details, and not in the abstract 
 merely, will save the State from that gerry 
 mandering system which would be the result of 
 the proposition of the gentleman from Taunton. 
 
596 
 
 HOUSE OF REPRESENTATIVES. 
 
 [70th day. 
 
 Friday,] 
 
 HALLETT WHITNEY. 
 
 [July 29th. 
 
 Sir, the moment you put it into the power of the 
 legislature to frame and adopt a system of districts 
 for representatives without going to the people, 
 from that moment you determine the political 
 character of the Commonwealth by the political 
 character of the one particular legislature which 
 districts the State. That is perfectly clear. Con 
 tiguity can easily be evaded in order to give a 
 party majority. You may have your districts 
 formed of contiguous territory, and yet you can 
 take a narrow strip of land in this or that town or 
 city as the nucleus of a district, and add to it such 
 other portions, according to the political com 
 plexion of these portions to be added, and make 
 a district of any politics you please. Every 
 body knows what gerrymandering can do to 
 secure the control to a minority by ingenious 
 districting of sections ; and this, it would seem, 
 is one of the most corrupt and corrupting powers 
 the legislature can have. But if the legislature 
 know that the people have the power, by a vote 
 of the whole Commonwealth, to repudiate the 
 project which they may put out, the people have 
 a reasonable guarantee that the system will be 
 based and arranged according to just rules. I see 
 no inconsistency, therefore, in meeting those who 
 are in favor of the district system, by saying, we 
 will put into the Constitution, not an alternative 
 proposition of town or district system, which 
 looks as if we did not know what we were about, 
 but an alternative power. We have put into the 
 Constitution the town system of representation, 
 and recommended to the people to take that if 
 they desire it ; and then we may say by this 
 amendment, if you desire, through the power of 
 your legislature, to make a change to a district 
 system, here is the form to give the legislature the 
 power to propose it. If we are to submit the dis 
 trict system to the people, we ought to submit it 
 in detail, that each town may know who is to be 
 its neighbor. This is not the place to do it. It 
 consists of lines and boundaries and cities and 
 towns and villages and relative population, and 
 various other matters requiring a most minute 
 examination, before it can be fairly adjusted and 
 adopted. I say, therefore, if there is an honest 
 purpose to test the question before the people, 
 whether they will have the district system or not, 
 the proposition of the gentleman from Natick 
 presents it ; while, at the same time, it is con 
 sistent with the views of those who adhere to the 
 principle that the towns shall have their inherent 
 corporate rights in the representative hall, and 
 that no change in the representative system should 
 take place without their action and consent. I 
 hope, therefore, that the proposition of the gentle 
 man from Taunton will be disposed of by being 
 
 rejected, and then the question will be fairly open 
 to this compromise proposition. 
 
 Mr. WHITNEY, of Conway. At this late 
 hour of the session, it seems to me that it is but 
 wasting time to enter again into the discussion of 
 principles which lie at the foundation either of 
 the town or district systems of representation. 
 Much better would it be, both for ourselves and 
 our constituents, to look and see where we stand 
 in reference to this great question. A great con 
 flict in the Convention, from the commencement 
 of its session to the present time, has been had 
 upon this question of representation ; and, how 
 ever it may appear to other gentlemen, it is 
 obvious to me, that if there is anything estab 
 lished by our past action, if we have arrived at 
 any positive and determinate result in this Con 
 vention, we have arrived at the result embracing 
 town representation as a principle, which is to go 
 from this Convention to the people, and that the 
 district system cannot be adopted here. 
 
 Now, Sir, I admire the perseverance of the 
 gentleman from Taunton, (Mr. Morton,) and 
 of other gentlemen who have advocated the dis 
 trict system here ; but I do not believe that the 
 gentleman from Taunton, nor any other gentle 
 man from anywhere else, favoring the district 
 system, supposes that this Convention, after our 
 past action, and after the long discussions we have 
 had, and the repeated calls for the yeas and nays 
 I say I do not believe that any one seriously 
 supposes that this Convention, after all this, is to 
 adopt the district system, and submit it to the 
 people, instead of the system of town representa 
 tion which we have adopted. 
 
 Well, Sir, that being an established fact and I 
 appeal to gentlemen on this floor if it is not an 
 established fact it seems to me to be an endless 
 waste of time for gentlemen to get up here and 
 argue in favor of the district system, and say that 
 we are afraid to trust the people. Why, Sir, we 
 have prepared a system which we propose to sub 
 mit to the people, and we believe that the people 
 will sustain it. Is there any fear manifested 
 there? Why, Sir, it is our unbounded confi 
 dence in the people that induces us to offer this 
 proposition to them. 
 
 But, Sir, there are other gentlemen who stand 
 up here and say that we are deceived in our 
 judgment in regard to the wishes of the people 
 that the people do not desire town representation ; 
 that in this particular we labor under a mistake. 
 However that may be, I regard the proposition of 
 the gentleman from Taunton as involving a ques 
 tion which has been settled here again and again 
 as a question to be rejected, because if it is 
 adopted, it certainly works the death of the pro- 
 
70th day.] 
 
 HOUSE OF REPRESENTATIVES. 
 
 597 
 
 Friday,] 
 
 WHITNEY. 
 
 [July 29th. 
 
 position in favor of town representation ; because, 
 as the gentleman for Montague has said, the 
 friends of the existing system, who are opposed to 
 the town system, and the friends of the district 
 system, will combine against the town system ; 
 and, on the other hand, the friends of the present 
 system who are opposed to the district system, 
 will join with the friends of the town system ; 
 and thus you will kill both propositions. It does 
 not seem to be wise to adopt any proposition 
 which may have such a tendency. What, then, 
 is it proposed to do ? The gentleman from Natick 
 offers a proposition a proposition which I must 
 confess I have never seen nor heard of until 
 this morning ; it is entirely new to me which 
 strikes me as having the elements of fairness in it, 
 and which ought to command the support of the 
 friends of the district system. Here it is, a com 
 plete district system in itself, which we propose 
 to submit to the people, as soon as we have had 
 time sufficiently to mature it. It proposes that 
 the legislature, in 1855, or 1856, shall submit a 
 system of districts to the people, based upon legal 
 voters ; and if the people adopt it, that is to be 
 your system, and it is to supplant your system of 
 town representation. And now, I ask gentlemen, 
 what can be more fair, or more just ? The legis 
 lature of 1854 must prepare a district system in 
 relation to the Senate. That system will go to 
 the people, and they will have acted upon it one 
 year, and will have become informed in regard 
 to its operations ; and then the next legislature 
 that is, the legislature of 1856, elected in 1855 
 is to prepare a district system of representation 
 for the House of Representatives. They are to 
 perfect it here ; and it is not to be supposed that 
 they are to gerrymander in making this district 
 system. We know not, Sir, what is in the future 
 in reference to political action or political power ; 
 no man knows who is to be in authority in the 
 Commonwealth of Massachusetts in 1856 ; but 
 the legislature, coming fresh from the people, and 
 representing the wishes of the people, will pre 
 pare a district system of representation for the 
 House of Representatives, and submit it to the 
 people ; and the whole people are to pass upon 
 it ; and if they adopt that system it supplants 
 your system of town representation throughout 
 Massachusetts. 
 
 Now, Sir, all this talk among gentlemen, of 
 our "fearing to trust the people," sounds well 
 enough, but, let me ask, is there any foundation 
 for it? Is there, anywhere, any evidence that 
 the men who support the proposition of the gen 
 tleman from Natick, do, in the least, fear to trust 
 the people in this matter ? So far from that being 
 the case, we make it imperative for the legislature 
 
 to submit a district system to the people, so that 
 they may have a fair opportunity, after reasonable 
 deliberation, of saying whether they will adopt 
 it, or adhere to their old system of town represen 
 tation. It is not left, like some other matters, 
 either to the will or the discretion of the legisla 
 ture, but is imperative upon them, if this Con 
 stitution is adopted by the people. They must 
 submit it to their determination; there is no 
 alternative. If a majority of the voters of the 
 State adopt the system, then it is, unequivocally, 
 your system for the future. Is there any distrust 
 here ? I must confess that I favor the town sys 
 tem ; and I favor it honestly, because I honestly 
 believe that the people of Massachusetts prefer 
 that system to any other. Other gentlemen, 
 however, imagine that I am mistaken, and con 
 tend that the people prefer the district system. 
 To those gentlemen I now reply : " Prepare your 
 district system, and send it out to the people, and 
 let them vote upon it, man for man, and head for 
 head, as one gentleman said in an early stage of 
 the consideration of this subject ; and, if the voice 
 of the majority is in favor of such system, why, 
 in all conscience, let them have it." Is that not 
 fair ? Why, then, do we hear all this talk about 
 " doubting the people " and " fearing to trust the 
 people ? " The proposition made here is perfectly 
 fair. As I have already stated, it is unquestion 
 ably a settled point by the Convention, that the 
 town system is to go before the people first. No 
 one can expect anything else from the various 
 expressions of opinion we have had here, as well 
 as the votes we have taken. We have had the 
 yeas and nays upon it hah a dozen times, and it 
 is now too late, in almost the last hour of the ses 
 sion, to expect that any other course of action 
 will be pursued by this body. 
 
 Sir, I shall support the amendment of the gen 
 tleman from Natick. It is due to him, and it is 
 also due to myself, to say, that I had no hand in 
 maturing it ; I only know it as I have heard it 
 read ; but it strikes me, as an honest man, that if 
 we wish to get the opinion of the people, fairly, 
 and honestly, and legally, on the matter of town 
 or district representation, it will be upon this 
 proposition. If there be any evil in a large 
 House of Representatives, the people will have 
 seen the evil, and can then set themselves to work 
 to remedy it. They will have witnessed the action 
 of the new Constitution with a numerous House 
 of Representatives, and, whatever of evil there ia 
 in the system, will by that time, have been dis 
 covered ; and, if it is thought best, your district 
 system can then be tried. I trust, however, that 
 at this late hour, after the repeated decisions of 
 the Convention which have been had upon this 
 
598 
 
 HOUSE OF REPRESENTATIVES. 
 
 [70th day. 
 
 Friday,] 
 
 GARDNER BANKS. 
 
 [July 29th. 
 
 matter, that gentlemen will not change their 
 votes, to vote in favor of the proposition of the 
 gentleman from Taunton, but that they will adopt 
 the system proposed by the gentleman from Na- 
 tick. I do not know whether the people will 
 accept it or not ; but I earnestly hope, if any such 
 plan is to be tried, that that may be the plan. 
 At all events, that is the plan which shall have 
 my support. 
 
 Mr. GARDNER, of Seekonk. On an early 
 day of the session, I submitted a proposition in 
 regard to the basis of representation, identical, in 
 some respects, to the one which has been adopted ; 
 and I flatter myself, Mr. President, that had the 
 Convention adopted my proposition, it would 
 have been more acceptable to the people of the 
 Commonwealth than that which we have now 
 embodied in the Constitution. Nevertheless, I 
 very cordially yielded my support to the proposi 
 tion of the gentleman from Lowell, (Mr. Butler,) 
 in the Convention, and I shall support it else 
 where. I am not of opinion, Sir, that the people 
 of the Commonwealth are yet prepared for the 
 district system ; notwithstanding, I think the day 
 will soon come when that system will be adopted. 
 And, farther, although I regard the plan we have 
 adopted, as being undoubtedly imperfect, and 
 believe that it would be impossible for the Con 
 vention to adopt a system which would not involve 
 imperfections in it, still I shall support the plan 
 we have now decided upon ; at the same time, I 
 must say that I think it nothing more than right 
 and fair, that the people of the Commonwealth 
 should have an alternate system presented to 
 them. 
 
 There are many difficulties which surround 
 this question. It will be attended with difficul 
 ties, if presented to the people. I can see no 
 valid reason why the proposition of the gentle 
 man from Taunton should not be submitted to 
 the people, and their action had thereon. There 
 fore, I shall cordially give my support to the prop 
 osition presented by the learned gentleman from 
 Taunton, which town, I have the honor, in part, 
 to represent. But should that proposition fail to 
 command a majority of the votes of this Conven 
 tion, I shall then as cordially give my support to 
 the proposition offered by the gentleman from 
 Natick, although I do not see that question pre 
 cisely in the same light as some others do. Nev 
 ertheless, I hope the Convention will not con 
 tinue the debate upon this subject any longer, 
 but that the question will be taken, in order that 
 the Convention may be brought to a close the 
 present week. I hope, also, that the proposition 
 of the gentleman from Taunton will be adopted. 
 
 Mr. BANKS, of Waltham. I desire to say 
 
 but a word or two upon this question. I have 
 favored, as well as I was able, the system of rep 
 resentation adopted by this Convention, and have 
 but little doubt that the proposition will be adopt 
 ed by the people. I stand upon this ground 
 that, upon the theory of our government, the 
 towns have an absolute right of representation, 
 and that that right is, in some degree, coextensive 
 with their existence, as part of the government, 
 and necessary to the maintenance of their full 
 powers. Therefore, I have no hesitation what 
 ever, in regard to the plan accepted by the Con 
 vention, nor do I suppose that, by pursuing the 
 course indicated by the gentleman from Taunton, 
 (Mr. Morton,) or that of the gentleman from 
 Natick, (Mr. Wilson,) we depart from it. But 
 the principle of town representation may be 
 abandoned, by the people of the Commonwealth. 
 I think, in time, it will be abandoned, for we are 
 constantly departing from our old customs, and 
 adopting new. What we want to ascertain at 
 the present time is, what is the will of the peo 
 ple in regard to this question of representation ; 
 not only what is politic and just, and right, but 
 what is the will of the people ; for, after all, that 
 is the power which controls us. There is no 
 rampart in any Constitution which we can form, 
 that will stand against that power. We cannot 
 protect ourselves by any provision in this instru 
 ment. Therefore, at the same time that I stand 
 upon the proposition of the Convention, I am 
 willing to submit a proposition to the people, in 
 alternate terms, that they may judge which of 
 the two plans they prefer. But I confess I have 
 a preference in regard to the manner of this sub 
 mission. I would gladly assent to the proposi 
 tion the gentleman from Taunton introduced, 
 and which is now before the Convention, but that 
 I see in the resolve, what seems to me, two de 
 fects ; first, as to the manner of submission ; and 
 second, as to the time of submission ; either of 
 which, I judge, would preclude a fair considera 
 tion and determination of the question. 
 
 Let me call the attention of the gentleman from 
 Taunton to this fact, that the plan of representa 
 tion which he proposes is indefinite in its charac 
 ter, is ideal, and not in a distinct form ; therefore, 
 when the question of district representation is 
 placed before the people, every man prefigures 
 for himself such a representation as he would 
 prefer, and every town gives its vote for just 
 such an ideal system as that town might prefer. 
 So far, it is very well. But we do not present 
 the question of town representation in the same 
 way- If the gentleman from Taunton would 
 present the question of the district system in this 
 form, " will you agree to a district system for a 
 
70th day.] 
 
 HOUSE OF REPRESENTATIVES. 
 
 599 
 
 Friday,] 
 
 BANKS WILSON. 
 
 [July 29th. 
 
 House of Representatives of not less than two 
 hundred and sixty, and not more than three hun 
 dred and twenty members, or will you agree to a 
 system of town representation," that would be 
 an equal presentation of the two systems, and it 
 would be understood. But that is not the ques 
 tion. The question of the district system is in 
 definite, and it may assume any form of beauty in 
 which interest or imagination may clothe it. But 
 the question as to town representation, presented at 
 the same time, if the proposition of the gentleman 
 from Taunton be adopted, is not thus indefinite. 
 In every part, its proportions and character are 
 rigidly and unalterably defined. The question 
 is, shall the system of representation by towns 
 stand, "in the form accepted by this Convention? " 
 It seems to me that it does not present the two 
 questions upon the same ground. Nor can they 
 be determined by the people at the same time, 
 with any degree of consideration and justice. I 
 object, therefore, to the manner of presentation. 
 Either the questions should be distinct and defi 
 nite, and the towns should know with what 
 other towns they are to act and vote, or else the 
 system of town representation should stand sep 
 arate and independent of its embarrassing details. 
 So far I object to the manner of presentation. 
 
 Then, in regard to the question of time. The time 
 appointed for the submission of this proposition is 
 unfortunate. It goes out to the people with a 
 system of representation to which we have agreed 
 whether well or ill, gentlemen have different 
 opinions. The question of the district system 
 goes out at the same time, upon which there is 
 the same division of opinion. There are three 
 questions to be presented. First, shall the exist 
 ing system stand ? second, will you agree to the 
 system of representation by towns, as adopted by 
 this Convention ? or shall the district system be 
 established ? 
 
 Now, as has been said, the friends of the dis 
 trict system will vote against the representation 
 of towns, as accepted by this Convention, and the 
 friends of representation of towns, as accepted by 
 this Convention, will vote against the district sys 
 tem. So far, it is well, but both of those inter 
 ests will be likely to form a rampart to secure 
 themselves against the success of the objectiona 
 ble plan, by voting against any change whatever. 
 Such will be a probable result, at least. It seems 
 to me if these two difficulties could be obviated 
 by the gentleman from Taunton, his proposition 
 should receive a general concurrence on the part 
 of the Convention. 
 
 As to the proposition of the gentleman from 
 Natick, I have not a clear conception, but my 
 idea is this : it postpones the presentation of the 
 
 question to the people until the year 1856. So 
 far, then, as my objection to the time of pre 
 sentation is concerned, that is removed. In the 
 second place, it instructs the legislature of that 
 year, peremptorily, to divide the Commonwealth 
 into representative districts, and then to submit 
 these defined and allotted districts to the people. 
 This, I think, is right. If the people of the town 
 I represent are called upon to vote upon the dis 
 trict system, the first question they will ask, is, 
 where they are to be placed, and in what district ? 
 No answ r er can be given, under the proposition 
 of the gentleman from Taunton. But under the 
 other proposition, which proposes that the dis 
 tricts shall be defined by the legislature, every 
 voter will have a perfect knowledge, so that he 
 can determine whether he prefers the proposed 
 system, or that which will exist, if the Constitu 
 tion shall be ratified by the people. These are 
 my grounds of objection to the plan of the gen 
 tleman from Taunton. I may have erred, some 
 what, in my judgment of the proposition, but it 
 seems to me the reasons I have given are applicable. 
 Mr. WILSON, of Natick. I desire to say but 
 a single word in relation to this matter, and I will 
 detain the Convention but a few minutes. I 
 wish to say a word in relation to the motive 
 which prompted me to bring this question before 
 the Convention. I wished to do it for the pur 
 pose of giving the friends of the district system a 
 fair opportunity, in this State, to present that 
 question to the people. We have assented to a 
 different system. It is in the power of the legis 
 lature, if this Constitution shall be adopted, any 
 time between the adoption of the Constitution 
 and the year 1873, by a two-thirds vote in the 
 House and a majority in the Senate, approved 
 by two successive legislatures, to submit the ques 
 tion to the people, whether they will have the 
 district system or not. But, Sir, does any man 
 believe that a House of Representatives, consti 
 tuted as it will be by this Constitution, will ever 
 submit a single proposition of that kind to the 
 people by a two-thirds vote ? Does my friend 
 from Boston, (Mr. Schouler,) dream that the time 
 will ever come, when a two-thirds vote of two 
 successive legislatures, can be obtained to submit 
 that proposition ? I do not. Now, the proposi 
 tion is this ; it compels the legislature of 1855, to 
 submit that question to the people, and it com 
 pels them to make the details plain. Now, my 
 friend from Boston objects to it on the ground 
 that they will not make fair districts. Does not 
 he know that the Senate is based upon population, 
 and expresses the popular will, and that no vote 
 can be got through that branch of the legislature 
 unless it is fair ? 
 
600 
 
 HOUSE OF REPRESENTATIVES. 
 
 [70th day. 
 
 Friday,] 
 
 SCHOTTLER WlLSON HASKELL. 
 
 [July 29th. 
 
 Mr. SCIIOULER. The gentlemen who un 
 dertake to answer the views which I presented, do 
 not seem to understand them. I say this, that 
 the legislature presents a confused question to the 
 people. For instance, you may take and put to 
 gether a number of towns, and perhaps the Whig 
 party will say that this will be a Democratic dis 
 trict if I vote for it ; the Free Soil party will say it 
 will be a Whig district ; and with all those ques 
 tions coming in, you never can get the people to 
 say fairly what they want, whether they want a 
 district system or not. 
 
 Mr. WILSON. I say to my friend from Bos 
 ton, that this is a difficulty inherent in the dis 
 trict system, and it is a fair and legitimate ques 
 tion for the people to consider. I say, there is 
 not a man on the floor of this Convention who 
 dreams that any two successive legislatures, upon 
 the basis which we propose to place it, will, by a 
 two-thirds vote, ever put out a simple proposition 
 for a district system. What do I propose in this 
 amendment ? It is that the legislature of 1855 
 shall be compelled, by a simple majority of the 
 House of Representatives nothing more and a 
 majority of the Senate, based as it is upon the 
 population of the State, to make up a district 
 system and they will be compelled to make it a 
 fair system and submit it to the people. 
 
 The gentleman from Boston, (Mr. Gardner,) 
 upon my left, referred to some remarks made by 
 me, and wished to know if I had not confidence 
 in the people ? I say I have ; and one reason why 
 I have confidence in the people of Massachusetts 
 is, because the people of Massachusetts do not 
 agree with him, nor with his opinion. The gen 
 tleman from Boston refers to the intelligence of 
 the people of the Commonwealth, out of Natick. 
 Sir, I tell him that no man in this Commonwealth 
 is verdant enough, unless it be the chairman of the 
 Whig Ward and County Committee in the city of 
 Boston, to suppose that the legislature of Massachu 
 setts will ever agree to put out a proposition for an 
 amendment of the Constitution, without going 
 into details. Now, I submit that there is nothing 
 in this proposition which is not fair, liberal, and 
 honest; and which, if adopted, will give the 
 friends of the district system all they ever expect 
 to gain, or all they can ever ask, and that is a fair 
 opportunity to obtain the public sentiment of the 
 State. With that view I have made it. 
 
 I think I shall not present it to have a vote 
 taken upon it, until a vote has been taken upon 
 the proposition of the gentleman from Taunton ; 
 and if that be voted down, I shall move a reconsid- 
 e,ration, for the purpose of putting this amend 
 ment into it. 
 
 Mr. HASKELL, of Ipswich. I shall trouble 
 
 the Convention but for a moment, upon the re 
 marks of the gentleman from Natick, that this 
 proposition is a very fair one to the friends of the 
 district system. I do not view it in any such light ; 
 and I ask the attention of the Convention while 
 I go on to consider it upon the very ground 
 upon which the gentleman from Natick has stated 
 it. He proposes that the Convention shall adopt, 
 as a part of the Constitution, a provision which 
 requires that the legislature in 1855, and every 
 tenth year thereafter, shall submit to the people a 
 proposition whether they will have a district sys 
 tem, they having first adopted the system pro 
 posed by this Convention. He says, it is a fair 
 proposition to require of the legislature a division 
 of the Commonwealth into districts ; a legislature, 
 two-thirds of which, the gentleman himself says, 
 two or three times over, we could never get to 
 agree. Is it fair to the friends of the district sys 
 tem, to put them into the hands of a legislature 
 prejudged against the system ? Are they to frame 
 a system against their will and choice ? Yet this 
 is what the gentleman from Natick claims to be 
 a fair opportunity for the friends of the district 
 system to get the system based upon equal popu 
 lation. 
 
 But that is not the only objection to it. There 
 is a great deal that underlies all this, more than I 
 can have time to express to the Convention in the 
 short time allotted to me. He says the time is 
 fair. Is it so ? When the whole matter is con 
 sidered by the people of the Commonwealth, and 
 they are called upon to vote upon the Constitu 
 tion, is not that the proper time, the fair time, to 
 submit both propositions ? I claim that it is, and 
 that it is the fairest time. But, gentlemen, why 
 does he put it off until 1855 ? Because that is 
 valuation year, and then every small town will 
 be represented here. This apportionment of the 
 State into representative districts is to be done 
 valuation year, when every small town, however 
 small, has a voice equal to a town of four thou 
 sand inhabitants. Then is the time when the 
 legislature, by a constitutional enactment, and 
 against their will, are to prepare a district system, 
 and submit it to the people. Will the Conven 
 tion for one moment believe that the legislature 
 will not be actuated by the same considerations 
 which actuate men in other conditions of life ? 
 Will they not seek to avoid a fair expression of 
 opinion upon the part of the people in framing 
 that system ? They may frame it very honestly 
 upon its face, but whether one party or the other 
 is in power at the time, they will be very likely to 
 frame it with some reference to the interest of party. 
 
 Sir, there are gentlemen here who, very differ 
 ently from what I expected, have come forward 
 
70th day.] 
 
 HOUSE OF REPRESENTATIVES. 
 
 601 
 
 Friday,] 
 
 HASKELL WILSON HATHAWAY. 
 
 [July 29th. 
 
 as the peculiar friends of the district system. 
 We have not asked it of them. We do not thank 
 them for their favors. It is very cool indeed for 
 gentlemen who have opposed the district system 
 during the whole session, now to come over and 
 pretend to be its friends, and offer to give the peo 
 ple an opportunity to adopt it in two or three 
 years. Yet they put it in such a shape that they 
 think the people will be sure to vote against it. 
 The gentleman from Natick knows the people 
 would reject such a system, and yet he asks the 
 friends of a district system to come forward and 
 vote to require the legislature to submit a district 
 system which they know will be rejected. The 
 gentleman asks us to father the bastard if I may 
 be allowed the expression of his own begetting. 
 But, Sir, I do not believe that a single person in 
 the Commonwealth will be gulled into the belief 
 that in voting for such a proposition as the gen 
 tleman from Natick proposes, they are voting for a 
 district system. 
 
 If a district system is to be submitted to the 
 people, I want it to be submitted next November, 
 or whenever the Constitution is to be submitted 
 to the people. Then is the proper time for the 
 submission of an alternative proposition, and I 
 am willing and anxious to support a proposition 
 for submitting a fair alternative to the people at 
 that time. 
 
 Now, Sir, why is it that gentlemen propose to 
 submit such a proposition in the course of two or 
 three years ? We have not asked it of them. I 
 do not believe there is a man in favor of a district 
 system who would vote for such a proposition. 
 The gentleman from Natick stated a significant 
 fact in connection with this matter. He fears 
 that with all the beneficial reforms, some of which 
 I should like to see carried into effect, the people 
 will not adopt the Constitution, and this is thrown 
 in for the purpose of obtaining votes in its favor. 
 Sir, I do not believe the votes of the people are 
 to be obtained by any such manoeuvring. 
 
 Mr. WILSON, of Natick, (interrupting). I 
 hope the gentleman from Ipswich, (Mr. Haskell,) 
 does not mean to say that I expressed the idea or 
 the sentiment that there was any danger of de 
 feating the whole doings of this Convention. I 
 intimated no such thing. I never entertained a 
 doubt that the labors of the Convention would be 
 accepted by the people. 
 
 Mr. HASKELL. The gentleman said that 
 with this proposition incorporated into the Con 
 stitution, they could carry the State. And sup 
 pose his proposition is not incorporated into the 
 Constitution ; what is the inference ? Why, that 
 lie apprehended they could not carry the State. 
 That is the only fair inference. 
 
 41 s 
 
 Now, Sir, I ask, what advantage can there be 
 in the proposition proposed by the gentleman 
 from Natick? I submit that it is grafting no 
 more than we have already provided for. We 
 have already provided a means by which the prop 
 osition of the gentleman from Taunton may be 
 submitted to the people, perhaps in less time than 
 the gentleman from Natick proposes to have his 
 plan submitted. We have given the legislature 
 the power to submit amendments to the Consti 
 tution at any time to the people, and they may 
 submit the proposition of the gentleman from 
 Taunton which is a general district system. 
 They may submit that proposition at the very 
 next session, if they choose, and thus we should 
 get the sense of the people upon that system 
 quicker than we should upon the proposition the 
 gentleman from Natick proposes. The gentleman 
 from Natick knows very well that his proposition 
 would not get the votes of the friends of the dis 
 trict system, and if it is submitted to and rejected 
 by the people, he knows that it will be easier to 
 defeat a clean proposition, like that offered by the 
 gentleman from Taunton, afterwards. 
 
 But there is another thing to which the gentle 
 man for Wilbraham, (Mr. Hallett,) alluded. He 
 talked of the departure from the principle of town 
 and corporate rights. Why, Sir, if there ever was 
 such a principle, you have given it up long ago. 
 If there ever was such a principle, you departed 
 from it when you provided that those sixty-four 
 towns, containing less than one thousand inhabi 
 tants, should be deprived of an annual represent 
 ative. How can the principle of corporate rights 
 be maintained while those sixty-four towns are 
 deprived of their rights according to that princi 
 ple ? Sir, I hope the friends of the district system 
 will not accept the boon presented at the hands 
 of their enemies, and presented for the purpose of 
 obtaining their support to this Constitution. As 
 far as I am concerned, I have not committed my 
 self at all in relation to that subject. "For the 
 last ten days I have stood non-committal as to 
 the matter of my final support to this Constitu 
 tion. I have determined that I would keep my 
 self aloof from all compromises, and wait the pro 
 gress of events. I should be glad to see the Con 
 stitution perfected in a manner that would com 
 mend it to my judgment, and which would 
 command my support. But I must confess that 
 the proposition proffered by the gentleman from 
 Natick, does not, by any manner of means, make 
 up for the unjust system of representation which 
 the Convention have adopted. 
 
 Mr. HATHAWAY, of Freetown. I have 
 endeavored a number of times to get the floor, for 
 the purpose of saying something upon this sub- 
 
602 
 
 HOUSE OF REPRESENTATIVES. 
 
 [70th dar. 
 
 Friday,] 
 
 HATHAWAY. 
 
 [July 29th. 
 
 ject. I did not intend, however, when this prop 
 osition was introduced, to have said a single word 
 in relation to it, and I should not have felt called 
 on to do so now, but for the strangeness of the 
 course which it seems to me has been pursued. 
 But, I cannot allow to pass unnoticed some of the 
 arguments which have been presented here, and 
 I regret that I shall not have time in the fifteen 
 minutes allowed me, to answer half the objections 
 which have been raised against the proposition of 
 the gentleman from Taunton, as they should be 
 answered. The honorable President of this Con 
 vention, (Mr. Banks,) objects to the time and 
 manner of its being presented, and speaks of the 
 corporate rights of towns. Let rne ask that gen 
 tleman whether that whole matter has not been 
 given up by those who claim not only to be the 
 friends, but the exclusive friends of the towns ? 
 Is not the whole proposition, the whole principle 
 in the matter given up ? Have not they yielded 
 it ? What has become of the vested rights of the 
 towns of which the gentleman for Wilbraham has 
 talked so much ? Where are the vested rights of 
 your cities ? You have provided that one-third 
 the population of the whole Commonwealth shall 
 be placed in districts. I repeat it, Sir, where are 
 the vested rights of your large towns and cities ? 
 If these rights the gentleman speaks of are vested 
 rights, what is to become of the city of Boston 
 and her rights ? But is this doctrine of vested 
 rights true ? Sir, just analyze this proposition 
 for a moment. See how your towns are formed. 
 Where do they get their charters from, but from 
 a mere act of the legislature ? The legislature 
 time and again has cut and carved the towns of 
 the Commonwealth ever since those towns have 
 had an existence. Aye, Sir, and the gentleman 
 from Taunton told us the other day how the leg 
 islature at one time took it into their heads, in 
 their wisdom, to abolish a town altogether. 
 Where were the vested rights of that town then ? 
 Sir, there is nothing in this doctrine, as it seems to 
 ine. 
 
 The honorable President of the Convention 
 speaks of the beautiful form and consistency of 
 the proposition adopted by the Convention in 
 reference to this matter. Now I want to know 
 wherein it consists ? Is it because it provides for 
 districting one-third the population of the Com 
 monwealth ? Surely, the gentleman would not 
 say, take the proposition and go it in the dark so 
 far as that one-third of the population is con 
 cerned, for the sake of accommodating the small 
 towns. Will he contend that the small towns 
 have vested rights and that the large ones have 
 not? 
 
 But, Sir, this argument of vested rights was 
 
 well answered by my friend over the way from 
 Cambridge, (Mr. Sargent). Where are the vested 
 rights of the counties ? Your counties have had 
 a corporate existence ever since 1780, and long 
 before that, they elected their magistrates, yet how 
 are their vested rights regarded ? They are not 
 respected in the election of senators. You can 
 trace these vested rights of the counties if there 
 are such vested rights of corporations back al 
 most to the settlement of the country. Where 
 are your beautiful forms which you are to present 
 to your constituency and to the country in this 
 respect ? Where is that beauty of form which 
 the honorable President argued you were going to 
 present to the people of the Commonwealth for 
 them to pass upon ? I cannot find it. Let me 
 say to the honorable President that long, long 
 before one-half the towns of the Commonwealth 
 were in existence, the counties of the Common 
 wealth were known and were incorporated, and 
 hence, when you come to talk about vested rights, 
 you must look to the vested rights of the counties 
 as well as to those of the towns. 
 
 Sir, this whole matter is founded upon a false 
 theory. The premises are not sound, and hence 
 the reasoning in relation to the whole matter, 
 however ingenious it may be, falls to the ground. 
 
 But I must hasten on with my argument. 
 The majority of the Convention not only give up 
 the principle of corporate rights as far as the cities 
 are concerned, but they even provide that the 
 small towns may be districted. Let me say, as I 
 said before, the principle of corporate representa 
 tion is gone, and that of districting, is plainly 
 acknowledged. Now, Sir, I desire to give the 
 gentleman from Plymouth, (Mr. Davis,) and the 
 gentleman for Montague, (Mr. Alvord,) a little 
 attention as I pass along. I confess it comes a 
 little ungraciously from that quarter to throw 
 back upon us the responsibility of adopting the 
 system you have adopted in reference to senato 
 rial districts. Sir, I thought there was something 
 strange about that matter when it was before us. 
 I recollect very well the position I assumed, and 
 the position occupied by the gentleman from 
 Plymouth, and I will venture to say the same 
 position was occupied by the gentleman for 
 Montague, though I cannot speak with certainty. 
 But now they turn round and throw upon us the 
 responsibility of what they themselves have 
 done. 
 
 The gentlemen who went in favor of districting 
 your Commonwealth and having your represent 
 ation based upon population, now turn around 
 and throw it in our faces, and say : " You have 
 based your Senate upon population, and now 
 comes the town system." Sir, I was opposed to 
 
70th day.] 
 
 HOUSE OF REPRESENTATIVES, &c. 
 
 603 
 
 Friday,] 
 
 HATHAWAY DAVIS FAY GRISWOLD BROWN. 
 
 [July 29th. 
 
 that. The gentleman from Salem, the other day, 
 said to them : " Go back to your basis of legal vo 
 ters you are welcome to it, and we will go with 
 you." I was opposed to having the Senate based 
 upon population, and now they turn around and 
 throw it in my face, and say : "You have got a 
 great deal more than you deserved ; the county of 
 Suffolk has got a deal more when based upon pop 
 ulation, than she would have if the basis was fixed 
 upon legal voters." This is the very ground that 
 they put it on. The gentleman from Plymouth 
 went with them, and I thought then that there was 
 something singular and strange about it, for I 
 laid my eye upon Plymouth, although I do not 
 live in that county, for she was part and parcel of 
 the Old Colony. I confess I had some sympathy 
 for her ; and the gentleman said that he had been 
 rebuked by his constitutents. Sir, I think he de 
 served rebuke ; for, after all, sift it and turn it as 
 you please, what does it amount to but a bargain? 
 The gentleman says that it was expressly under 
 stood I take his own language it was expressly 
 understood that he should go in favor of munici 
 pal corporations, and that representation in the 
 House should be by towns, and that is the reason 
 why he went for it. That explains the reason 
 why we who were governed by principle rather 
 than by expediency, were deserted. Now, I say, 
 it is unjust, after gentlemen have told us what 
 controlled their minds in the matter, to turn 
 around and say to us, now : "Although you were 
 opposed to this system of representation, based 
 upon population, you must take it, because those 
 persons who were friends of town representation 
 made an express understanding with us that if 
 the representation in the Senate should be based 
 upon population, we should go for representation 
 based upon municipalities in the House of Repre 
 sentatives." I say it is unjust. 
 
 Mr. DAVIS, of Plymouth. I rise, Mr. Presi 
 dent, to correct a misapprehension upon the part 
 of the gentleman with regard to the motives by 
 which many persons were governed in giving 
 their votes upon this matter. They voted for the 
 basis of the Senate, founded upon population, 
 because they were led to suppose that the basis of 
 the House would be founded upon legal voters. 
 
 Mr. HATHAWAY. I understood the gentle 
 man expressly to say, that he voted for the basis 
 of representation founded upon population I am 
 speaking only of what he said, for I do not know 
 what other gentlemen said that he voted for this 
 basis of representation in the Senate, with the ex 
 press understanding that town representation was 
 to be preserved. That was his language, for I 
 took it down at the time. Has the gentleman 
 fulfilled his agreement with the people ? Where 
 
 are your cities and great towns ? Are they not 
 districted ? Has his agreement been carried out ? 
 It seems to me that he has "kept the word of 
 promise to the ear, but broke it to the hope." 
 
 [Here the hammer fell.] 
 
 On motion by Mr. FAY, of Southborough, the 
 Special Assignment was then laid on the table. 
 
 Leave of Absence. 
 
 Mr. FAY, of Southborough, from the Com 
 mittee on Leave of Absence, submitted a report, 
 recommending that leave of absence be granted to 
 the following members, for the remainder of the 
 session : 
 
 Messrs. Marble, of Charlton ; Hoyt, of Deer- 
 field ; Knowlton, of Holden ; Warner, of Stock- 
 bridge ; Marcy, of Greenwich ; Atwood, of East- 
 ham ; Cady, of Monson ; Tilton, of Chilmark ; 
 Allen, of Brimfield ; Swain, of Nantucket ; Eas- 
 ton, of Nantucket ; Turner, of South Hadley ; 
 and Hapgood, of Athol. 
 
 The Report having been read, the question was 
 stated on its acceptance. 
 
 Mr. GRISWOLD, for Erving. Mr. President: 
 There are a great many names there. I do not 
 know but that there may be a sufficient reason 
 for adopting the Report ; but really, unless it is 
 on account of sickness, it seems to me that this 
 leave ought not to be granted at this late period 
 of the session. 
 
 Mr. FAY. I will state that five on the list are 
 either sick themselves or have sickness in their 
 families, which renders it necessary that they 
 should be absent ; and with regard to some of 
 the others, their business is very pressing, so that 
 it would be a great hardship to refuse them. The 
 Committee have examined the cases thoroughly ; 
 and, although they were desirous not to excuse 
 any one, they have thought it proper to submit 
 this Report, and recommend its adoption. 
 
 The question being taken, the Report was 
 accepted. 
 
 On motion by Mr. HATHAWAY, the Con 
 vention then adjourned. 
 
 AFTERNOON SESSION. 
 
 The Convention reassembled at three o clock, 
 P.M. 
 
 Termination of Debate. 
 
 On motion by Mr. BROWN, of Medway, it 
 was ordered, that debate on the resolve on the 
 mode of submitting the question of representa 
 tion to the people, cease at four o clock this after 
 noon, and that the question be then taken. 
 
604 
 
 HOUSE OF REPRESENTATIVES. 
 
 [70th day. 
 
 Friday,] 
 
 BUTLER BRIGGS. 
 
 [July 29th. 
 
 Representation. 
 
 On motion by Mr. BUTLER, of Lowell, the 
 Convention proceeded to consider the Orders of 
 the Day, the special assignment being the resolve 
 on the mode of submitting the question of repre 
 sentation to the people ; and the question was 
 stated upon ordering the resolve to a second 
 reading. 
 
 Mr. BRIGGS, of Pittsfield. I suppose, Mr. 
 President, that both propositions are virtually 
 before the Convention. That of the gentleman 
 from Taunton, (Mr. Morton,) and that of the 
 gentleman from Natick, (Mr. Wilson). I shall 
 vote in favor of the proposition of the gentleman 
 Taunton ; and I shall vote for it for the reasons 
 which he gave, and which need not be repeated 
 in detail. Although there have been many 
 speeches in opposition to it, with all respect to 
 gentlemen who have debated the question, I 
 must be permitted to say that I do not think they 
 have met and answered his arguments. His propo 
 sition is to submit to the people in the first place, 
 the question whether they will retain or abolish 
 the twelfth article of amendments to the present 
 Constitution. If they abolish that, will they 
 have a system of representation on the plan which 
 has been adopted by this Convention, called the 
 town system, or will they have a district system 
 to be apportioned and marked out by a future 
 Senate, basing the representation of the supposed 
 districts upon the legal voters of the Common 
 wealth ? Now, to my mind, nothing is more 
 clear, nothing is more plain, nothing is more 
 equal and just, than that proposition. Gentle 
 men who have spoken upon this subject, admit 
 that it is so, upon the face of it ; but they say that 
 you cannot carry out a system of district repre 
 sentation that the people will accept. Sir, if the 
 people say that they will have a district system of 
 representation, and direct their Senate to mark 
 out the districts upon the map of the State, it 
 must be done, and it will be done by that Senate, 
 in the most perfect and fair manner that it can be 
 done, because there will be no other motive than a 
 just one to govern them. I know that the gentle 
 man for Wilbraham held up the terrors of gerry 
 mandering ; but I think that gentleman had better 
 not talk about gerrymandering, for he formerly 
 belonged to that party who more than forty years 
 ago sealed their political death warrant for years, 
 by that strange and monstrous measure by which 
 the old republican party divided the State for the 
 choice of Senators. Sir, in all future time the 
 sword of Damocles will hang over their heads, 
 glittering with alarm and terror to any political 
 legislature that shall dare to imitate that bad 
 example. This is the question then for the peo 
 
 ple of Massachusetts to decide : Will you have a 
 system of district representation, based upon 
 legal voters, and that system to be marked out by 
 your representatives? That is the question, 
 nothing more nor less ; and why shall we not 
 submit this question ? The gentleman from Low 
 ell says and he always speaks what he means, 
 and I respect him for it he says that you must 
 not submit this question to the people, because it 
 is so delusive ; it has an exterior of fairness and 
 justice which he says cannot be be carried out, 
 and having such an appearance of fairness and 
 justice, he is afraid that the people will be deluded 
 into its adoption. Sir, mark that. I hope the 
 people will hear that. It is not then to be sub 
 mitted to the peop^, because they may be deluded 
 by it. Sir, if there is anytliing fair, honest, and 
 reasonable, in any proposition, it seems to me that 
 this proposition bears those marks. How is it 
 with the proposition of my friend from Natick ? 
 He showed it to me yesterday ; and I cast my 
 eyes over it hastily, and said that I did not see 
 any objection in it, except as to the time when it 
 should go into operation. But, during the debate 
 this morning, while several of those with whom 
 I generally act, expressed their opposition to it, 
 my mind was balancing. Indeed, I had about 
 made up my mind, if the question was put, to 
 vote for it, until 1 heard the gentleman from 
 Lowell, and I thank him for his speech. I 
 always listen to that gentleman with pleasure, 
 for if I do not agree with him, he speaks in a bold 
 and fearless manner that commands my attention. 
 He calls things by their proper names he plants 
 himself upon his proposition, and defies his ene 
 mies ; and that is the way I like to hear a question 
 argued. He is an adversary who does not lie in 
 ambush, though he is sometimes rather rough. 
 He acts openly. He uses the Damascus blade, 
 the cleaver, or the war-club, as best suits his pur 
 pose. He told us, in the first place, that all the 
 strength which God had given him should be devot 
 ed to the preservation of town representation. He 
 told us, also, that he should vote for the propo 
 sition of my friend from Natick ; and why ? 
 Because he knew that any proposition which 
 might be marked out on the map by a future 
 legislature, would not be accepted by the people. 
 And how does he know that ? I will tell you 
 how he knows it. Before the legislature are 
 required to make a law to carry out this provis 
 ion, the system of representation which the 
 majority of this Convention chosen by a minor 
 ity of the people have adopted, is to go into 
 operation; that system of town representation 
 which chooses a majority of the House of Rep 
 resentatives by a minority of the people, is to 
 
70th day.] 
 
 HOUSE OF REPRESENTATIVES. 
 
 Friday,] 
 
 BRIGGS UPTON. 
 
 [July 29th. 
 
 prevail in this House in 1855, when the district 
 system is to be marked out upon the map of the 
 State. Now, Sir, look at the small towns upon 
 this floor, and look at the votes upon this floor 
 for the respective systems of town and district 
 representation. Sir, I respect the gentlemen from 
 these small towns ; they have stood up here like 
 brave men, and they have defended their little 
 citadels to the death. Now, if you have a House 
 thus constituted four hundred and thirty- five 
 strong to lay out districts upon the map of 
 Massachusetts, to see whether a majority of the 
 people would accept it, do you believe that after 
 standing up here and defending themselves so 
 manfully, they would then lay their heads upon 
 the political block, and suffer their cherished town 
 representation to be blotted out forever ? No, 
 Sir ! Men do not gather grapes of thorns, or figs 
 of thistles ; and a House of Representatives based 
 upon town representation, will never agree to a 
 proposition and submit it to the people, that they 
 believe the people will accept, to disfranchise 
 themselves. Can you expect it of them as men ? 
 
 But, is said that the Senate is based upon popu 
 lation. So it is. But can the Senate district the 
 State ? Suppose the Senate send a district sys 
 tem into the House of Representatives such a 
 one as would be acceptable to the people do you 
 think that in a body composed of representatives 
 of the town corporations, a majority would be 
 found who would accept of a plan that would 
 take their seats from under them, and deprive 
 them of their representation ? No, Sir ! Let me 
 say a word here to my friends from the small 
 towns, who appear from indications now quite 
 manifest, to be willing to vote for the proposition 
 of the gentleman from Natick. Where is my 
 friend from Wilmington, who so valiantly stood 
 up here and defended the small towns ? I would 
 like to ask him, and I wish to ask the other gen 
 tlemen from the small towns, have you not heard 
 it said in some quarters has it not been whis 
 pered in your ears, that you may vote for this 
 proposition, because you will have the staff in 
 your own hands when the State comes to be 
 districted ? And that whilst you vote for it you . 
 are perfectly safe. 
 
 But, what reason is there why you will not vote 
 for the proposition of the gentleman from Taun- 
 ton ? Is it not because you believe, with the gen 
 tleman from Lowell, that it is so plausible and 
 delusive that the people may be deluded into ac 
 cepting it? But, I put it to your candor, when 
 you change your votes and go for the district 
 proposition, is it not upon the ground that you 
 are perfectly safe in your towns ? And, why are 
 you safe ? Because, upon the declaration of the 
 
 gentleman from Lowell, no system of district 
 representation will be submitted to the people 
 but what they will reject. But, is that dealing 
 fairly with the people ? " Is this thy kindness to 
 thy friend?" Do you propose to compromise 
 matters with town representation in that way, 
 by sending out to the people a proposition which 
 you believe, from the bottom of your hearts, 
 never will be accepted by them, and you vote for 
 it only because you believe that they will not 
 accept it or in the language of the gentleman from 
 Lowell, a proposition which you know they will 
 not accept while you keep back a proposition 
 which you fear they would accept, but which, if 
 they did, would deprive your town of its repre 
 sentation ? The gentleman for Erving, (Mr. 
 Griswold,) says he shall vote for this proposition, 
 because he has such confidence in the people, that 
 he does not believe they will accept it. I believe, 
 Mr. President, that I have not mistated or mis 
 represented anything or anybody ; I certainly 
 would not do it ; and therefore having stated my 
 views upon this question, as they have presented 
 themselves to my mind, and having neither voice 
 nor strength to go into the subject more elabor 
 ately, I leave this question to the fair and candid 
 consideration of the Convention. 
 
 Mr. UPTON, of Boston. I do not propose to 
 go into any extended discussion upon this ques 
 tion ; but there are one or two views in relation 
 to it, which I think have not been submitted. 
 The question before this body is, will this Con 
 vention send out an alternative proposition to 
 the people of this Commonwealth ? I do not 
 propose to go into a discussion as to who consti 
 tutes the people ; but I stand upon the ground 
 tbat I am ready to vote for any proposition in 
 this Convention, which shall put two questions 
 to the people of this Commonwealth, in order to 
 ascertain precisely what their views are upon the 
 question of representation. I am in favor of one 
 of two propositions. I am in favor, if the prop 
 osition is to go to the people, of having both 
 propositions go together. If this Convention see 
 fit to send them to the people at this time, very 
 well ; or if they see fit to delay sending any prop 
 osition until 1855, I say very well let the rep 
 resentation stand upon its present basis until 1855, 
 and then send out to the people of this Common 
 wealth two alternative propositions : " Gentle 
 men, people of the Commonwealth, do you prefer 
 a district system of not less than two hundred 
 and forty members for your House of Represen 
 tatives, and not to exceed three hundred and 
 fifty members, or do you prefer a system of 
 town representation upon that same basis of 
 numbers ? " I am ready to submit these questions 
 
606 
 
 HOUSE OF REPRESENTATIVES. 
 
 [70th day. 
 
 Friday,] 
 
 UPTON. 
 
 [July 29th. 
 
 to the people, because I believe that the proposi 
 tion which you are about to submit, will take 
 away from the people, and prevent their rightful 
 expression of opinion upon the subject. 
 
 Now, Sir, there is another form in which I 
 should like to have it sent out. It would suit me 
 a little better, if the gentleman from Taunton 
 would amend his motion, by striking out the 
 word " Senate " in the last paragraph, and sub 
 stituting the word " Legislature," so that it would 
 read as follows : 
 
 The Legislature, at its first session after the 
 ratification of this amendment, and at its first 
 session after each decennial census, shall divide 
 each County into such Representative Districts, 
 composed of contiguous territory, as they may 
 deem expedient, so that the basis of each Repre 
 sentative shall be the same number of legal 
 voters, as nearly as possible, without the division 
 of towns or the wards of cities : provided, that 
 no District shall be so large as to entitle it to more 
 than three Representatives ; and provided that 
 Nantucket and Dukes County, shall each form 
 one District, and be entitled to at least one Rep 
 resentative. 
 
 If the amendment of the gentleman from Taun- 
 ton, is adopted by the people, the small towns in 
 the Commonwealth will have the power, in 1854, 
 to present the district question to the people, and 
 they may present it in any form they please. I 
 repeat, take the proposition of the gentleman from 
 Taunton, with the modification which I have 
 suggested, and, as all the towns will be represent 
 ed in the legislature, let the people take the ques 
 tion upon the two propositions ; first, the present 
 basis, as proposed by your Convention ; and, 
 second, the district basis, to be framed by the leg 
 islature, upon the proposition of the gentleman 
 from Taunton. I am ready to meet the question 
 upon this principle. I say that either of these 
 two propositions would be a fair proposition to 
 send to the people. I do not propose to argue 
 this subject. I merely desire to make a state 
 ment, in order that it may go upon record, as the 
 view of one of the minority in this Convention, 
 of an individual who desires the rrosperity of the 
 good old Commonwealth of Massachusetts, and 
 that it shall not be, hereafter, racked by internal 
 dissensions upon this question of the basis of 
 representation. I can tell those gentlemen who 
 represent the small towns upon this floor, that 
 however they may talk about it, if, as has been 
 foreshadowed by certain members of this House, 
 the great Democratic party is to be in the ascend 
 ant, then I tell them, that their only security is, 
 to have the party to which I belong, and which is 
 now in the minority in this Convention, repre 
 sented in the various cities and towns in this 
 
 Commonwealth, by a majority in the legislature. 
 Let me tell gentlemen who represent the small 
 towns upon this floor, that once let rampant de 
 mocracy be triumphant in Boston and the great 
 cities, and the basis of representation would not 
 stand one hour, which you now submit to the 
 people. 
 
 There is another question which has been al 
 luded to, in the course of this discussion, and that 
 is, the question of vested rights. In relation to 
 that matter, I have done what lies in my power, 
 to preserve town representation, as far as, under 
 existing circumstances, it could be preserved in 
 this Commonwealth. The gentleman for Wil 
 braham proposes the question of " vested rights," 
 and how stands that question in this Convention ? 
 We have tried, over and over again, to put it into 
 your Constitution, that this question of vested 
 rights, so far as the towns were concerned, should 
 remain intact that is, that these towns should 
 not be cut up. How has this question been met 
 by the majority of this Convention ? You have 
 denied that right. You have said that it shall 
 not go into your fundamental law. Is this the 
 way you respect vested rights, to divide eighty- 
 five towns in this Commonwealth, so as to increase 
 their representation by eighty-five, upon this 
 floor ? And then you talk about vested rights ! 
 Sir, it is but a mockery and a dream. There is 
 one question in relation to vested rights, that I 
 should like to ask the gentleman for Wilbraham : 
 If all the people of the Commonwealth should 
 gather, en masse, and they should say how their 
 representation should be based, what principle 
 would there be in the vested right of town cor 
 porations ? If I understood the proposition which 
 the gentleman for Wilbraham made, to amend 
 the Constitution in regard to future Conventions, 
 the whole theory of vested rights, so far as the 
 towns are concerned, was completely brushed 
 away. There is no such thing as vested rights 
 now, except in theory. The gentleman put forth, 
 in that proposition, that the people of this Com 
 monwealth not the town corporations, but the 
 people had the right not only to change their 
 Constitution, but to change the whole basis of 
 representation. Now I desire, and should be 
 most happy to give my vote for any proposition 
 which would submit to the people the questions 
 which I have named, which I hold to be the only 
 true questions : Will the people of this Com 
 monwealth sustain the present basis of represen 
 tation or any basis, I care not what it is any 
 basis of representation which the legislature may 
 submit to them, fixing the limit of the House of 
 Representatives r Be it borne in mind, this is a 
 pretty important question. When the honorable 
 
70th day.] 
 
 HOUSE OF REPRESENTATIVES. 
 
 607 
 
 Friday,] 
 
 UPTON GRISWOLD. 
 
 [July 29th. 
 
 President addressed the Convention this morning, 
 he said that it was not a fair question to submit 
 to the people, and I agree with him, to submit to 
 the people the question, whether they will have 
 a House of Representatives of four hundred and 
 forty members, as it now is, or a House of Rep 
 resentatives to be districted by the legislature 
 in 185G of two hundred and sixty-one mem 
 bers. I want the people to pass upon the 
 proposition in a different form, and I am ready to 
 submit the question to them, stating the maxi 
 mum as well as the minimum of the number of 
 members : " How shall those representatives be 
 chosen ? Shall they be chosen by districts, or 
 shall they be chosen by towns, as they are now 
 chosen ? " I say that is the fair question to sub 
 mit to the people, and it presents the whole ques 
 tion. I should say, in this connection, in regard 
 to the district system, as I have once before re 
 marked, that the minority here represent the 
 majority of the people of the Commonwealth 
 upon this subject. I hope the gentleman from 
 Taunton will modify his motion as I have sug 
 gested. I am perfectly ready, and prefer, if the 
 people adopt the alternative proposition of the 
 gentleman from Taunton, to let this question go 
 to the legislature instead of the Senate. I stand 
 here upon this floor as a friend, so far as I can be, 
 to the towns, and I am ready, so far as the basis 
 is concerned, that the present town corporations, 
 represented in the House, should have a full voice 
 in saying precisely how the question of districting 
 should be carried out. 
 
 Mr. GRISWOLD, for Erving. I believe that 
 my position upon the subject of representation 
 is pretty well understood by this body ; but a 
 new proposition has now been laid before them, 
 and I am not a little surprised at the manner in 
 which this proposition has been assailed from cer 
 tain quarters. It is proposed, by my friend from 
 Natick, as I understand it, after the present Con 
 stitution which we propose to submit to the people 
 has gone into effect, and its practical operations 
 have been observed and experienced ; it is pro 
 posed by the advocates of the system of the 
 gentleman from Natick, then to submit to the peo 
 ple of the Commonwealth the question, whether 
 they prefer, to the system which we propose to 
 put forth, and which they will have had an op 
 portunity to examine, a district system ; not, Sir, 
 in the abstract; not in every imaginary shape 
 in which it may be conjured up by this man, 
 and by that man ; but in detail, precisely as it 
 is to go into operation, so that every voter in 
 this Commonwealth may know where it will cut, 
 and what the districts will be. 
 
 Now, Sir, I think I should not have started 
 
 this proposition myself; in fact, at first, I had 
 some doubt about it ; but as the discussion has 
 progressed, I am free to say, that my doubts 
 one after another have vanished ; and why ? I 
 apprehend that, if the two propositions could be 
 properly put to the people of this Commonwealth, 
 and be properly understood in their practical 
 operations in detail, a large majority would be in 
 favor of town representation. Well, Sir, we go 
 forth to them with a system of town representa 
 tion somewhat decimated, but as perfect as we 
 could get it, which we think is substantially cor 
 rect, and with it we putforth another proposition ; 
 and the people of the Commonwealth will have 
 an opportunity, if they adopt this system, to see 
 its operation. It is said that the House will be 
 too large they can try it. It is said to be un 
 equal in its representation of different portions of 
 the Commonwealth they will have an opportu 
 nity to test that matter. In short, they will have 
 an opportunity, if this system which we put forth 
 is adopted, to see how they like it, and how it 
 operates. Now, I say, as a friend of town repre 
 sentation, that after that system has been put into 
 operation, and has been tested by the people of 
 the Commonwealth, if gentlemen will then come 
 forward with a district system carried out into 
 detail so that we can see precisely how it is to 
 operate in every town and city in the Common 
 wealth, I cannot stand up here and say that I 
 object to putting such a proposition before the 
 people in such a manner as that, and at such a 
 time. 
 
 And, if the majority of the people of the Com 
 monwealth the question thus fairly and properly 
 put after the first system has been tested by 
 practice, should say that, after all, your system of 
 town representation in unequal, unjust, and 
 wrong, all things considered, it is not in my mouth 
 to find fault with that verdict ; yet such is my 
 confidence that no such system as this district 
 system will be adopted by the people of the Com 
 monwealth, that I have no fears whatever in re 
 gard to giving it a trial. Why, Sir, take the 
 system proposed by the gentleman from North 
 Brookfield, (Mr. Walker,) and that was a pret 
 ty fair system or the system proposed by the 
 gentleman from Boston, (Mr. Hale,) who made 
 the Minority Report, and I apprehend that, out 
 side of the cities, you cannot stand for a m> 
 ment upon either of these plans, because I believe 
 that the towns generally dislike to be united in 
 the mode, and for the purposes which these sys 
 tems proposed. 
 
 But, it is farther said here, that it would be 
 unfair for a legislature elected upon the basis we 
 now provide, to perfect this system of represen- 
 
608 
 
 HOUSE OF REPRESENTATIVES. 
 
 [70th day. 
 
 Friday,] 
 
 GKISWOLD HUBBARD. 
 
 [July 29th, 
 
 tation, before it is sent out to the people. I can 
 not see how it can be unfair. In the first place, 
 if it is not perfected before it goes out to the 
 people, and the people should adopt a system 
 which has no definite details, and which details 
 only can be provided by the legislature, it must 
 be obvious to every-body, that the legislature will 
 afterwards have to perfect the system in regard to 
 these details. And, if this must necessarily be 
 done by the legislature, why may it not as well 
 be done before the system is sent out, as after it is 
 sent out ? In the one case, the people would 
 know exactly for what they were voting ; in the 
 other they would be voting blindfold. 
 
 But it is farther contended, that the House of 
 Representatives will be unequally elected, and 
 that they will, on that account, be very likely to 
 send out an unequal system. Without going 
 into that question, admitting even for a moment 
 that it were so this system must be passed upon 
 by the Senate, elected in equal districts, and may 
 be rejected by that body ; or, even if concurred 
 in by them, it may be vetoed by the governor ; 
 and you could not get a system through unless it 
 was equal and fair and therefore I see no objec- 
 to it so far as that matter is concerned. There is, 
 therefore, no force in that objection. Again, in the 
 popular branch of the legislature, if the people 
 are not represented according to population, this 
 proposition provides that the system shall be based 
 \ipon voters equally, so that it is not in the power 
 of the legislature to form unequal districts ; so 
 that I see no force whatever in the objection upon 
 that ground. Sir, I will go farther. The Con 
 vention will bear me witness that I have not 
 taken up much time upon this question, and 
 although I might now claim the privilege of 
 answering some of the objections which have 
 been raised to the system we have adopted, I 
 will not do so ; for I feel that this matter has been 
 agitated to such an extent as to become almost a 
 nausea in the nostrils of the Convention. I look 
 upon this agitation about the inequality of the 
 proposed town system, in the main, as humbug. 
 I believe that the proposition before the Conven 
 tion is substantially equal in its provisions ; and 
 that one part of the Commonwealth is as well rep 
 resented, all things considered, as another. I do 
 not believe that there has been a disposition on 
 the part of any members of the Convention to 
 give an undue proportion of representation to one 
 part of the Commonwealth at the expense of 
 another. 
 
 Entertaining these views, I am willing to vote 
 for the proposition of the gentleman from Natick. 
 I shall be unwilling to vote for that of the gen 
 tleman from Taunton, for several reasons, and 
 
 among the first and foremost of them is the 
 reason that I would not mix up and confuse this 
 question of representation at this time. The 
 question on this head has been elaborately dis 
 cussed by others. I would not at this time put 
 forth a mere abstract proposition, like this district 
 system, without any details. It would be unfair, 
 and would operate as a kind of drag-net, by which 
 you would confuse and draw together the voters of 
 the State, without being exactly able to discrim 
 inate themselves for what they were voting. On 
 the other hand, if the proposition of the gentleman 
 from Natick is given out, such is my confidence 
 in the town system, that I have no fears of the 
 result ; and after the town system has gone into 
 effect, and its operations have been seen, then, 
 although a friend of town representation, I am 
 willing that the question of a district system 
 should be submitted to the people. If the people 
 want it, it is not for me to say they shall not have 
 it, although I am an advocate of the town system ; 
 and I do not see how gentlemen here who have 
 been advocates of the district system, and who 
 have advocated the Minority Report, the details of 
 which have been perfected, can feel that they are 
 acting with consistency in opposing the amend 
 ment suggested by the gentleman from Natick ; 
 as all they can now do is to submit the question 
 of a district system to the people, and that we do 
 by incorporating the amendment of the gentle 
 man from Natick (Mr. Wilson) into the Consti 
 tution. 
 
 Mr. HUBBARD, of Boston. I did not intend 
 to trouble the Convention again with any remarks 
 in regard to any matter that might come before us 
 for consideration, nor do I expect to influence the 
 action of any member of this body by any argu 
 ment which I may address to it. .But, Sir, when 
 I hear gentlemen advocate a measure which, in 
 my humble judgment, is neither more nor less in 
 its character and results than a deception I im 
 pute no improper motives either to its author or 
 to those who favor it I say, when in its opera 
 tion it has a tendency to mislead and deceive the 
 people, and when those who attempt to oppose 
 this measure are stigmatized as factious and in 
 consistent, I cannot sit still, without at least 
 defending my own action in regard to this propo 
 sition. Sir, it has been said that those members 
 of the Convention who have heretofore been found 
 advocating the district system, are grossly incon 
 sistent in refusing to support the proposition of 
 the gentleman from Natick. Sir, when we see 
 with what a death grasp the members of this body 
 representing small towns have clung to their pre 
 rogative rights which they now enjoy, and when 
 it is proposed to us to ask these same towns some 
 
70th day.] 
 
 HOUSE OF REPRESENTATIVES. 
 
 609 
 
 Friday,] 
 
 HUBBARD WILSON DAVIS FRENCH. 
 
 [July 29th, 
 
 two or three years hence, when they are more 
 firmly seated in power than they now are, to lessen 
 that grasp, and to give the people an opportunity 
 of acting upon the district system what can any 
 reasonable man, who is friendly to the district 
 system, hope for or expect ? 
 
 We are told that it will be imperative upon the 
 legislature, at a given time, to submit such a sys 
 tem to the people. The proposition, Sir, is an 
 absurdity. To say that a legislature consisting of 
 two bodies so dissimilarly organized and elected, 
 when called upon to exercise their discretion in 
 regard to any particular measure and to say 
 what is fair and what is unfair, what equal and 
 what unequal are to be compelled to agree in 
 regard to it, involves an absurdity which never 
 was heard of in all parliamentary history. Sup 
 pose that the Senate of Massachusetts, in 1856, 
 should devise and send down to the House of 
 Representatives a fair system of district represen 
 tation, what power on earth can compel that House 
 to adopt it, unless they see fit ? Or, on the other 
 hand, let a system be originated in the House, 
 and appear just and fair with gerrymandering, 
 perhaps, in all its features and be sent to the 
 Senate, where it is deemed unjust and out 
 rageous, what power is there to compel the 
 Senate to agree with the House ? Sir, if you put 
 this into your Constitution, you put that into it 
 which it is morally impossible to carry out, with 
 a legislature such as you will have upon the basis 
 now proposed in your amended Constitution. 
 
 Sir, there is nothing about this proposition in 
 the nature of a compromise. It does not give 
 the friends of the district system the remotest 
 chance of putting such a system before the people 
 as will enable them to give a fair expression of 
 opinion in favor of the district system. I shall, 
 therefore, oppose this proposition ; and, in doing 
 BO, I shall regard myself as acting with entire 
 consistency in the vote I now give, when viewed 
 in relation to the votes I have heretofore given 
 when the district system was under considera 
 tion. 
 
 Mr. WILSON, of Natick. I now offer my 
 amendment. 
 
 The amendment was read, as reported in the 
 early part of the day. 
 
 Mr. DAVIS, of Worcester. I do not propose 
 to trouble the Convention longer than for a few 
 moments. I am very glad that this proposition 
 has been offered by the gentleman from Natick, 
 because I can vote for it with all my heart, and 
 because I believe it to be a fair proposition to put 
 out before the people in regard to a district sys 
 tem ; and, in that way the people will have a fair 
 opportunity of deciding whether they will have a 
 
 district system or a town system of representation. 
 I shall go for the amendment, and shall oppose 
 the proposition of the gentleman from Taunton, 
 because it does not put the question fairly to the 
 people. I have watched this discussion closely, 
 to see if any gentleman could make out its fair 
 ness upon this matter. I cannot conceive it to be 
 a fair proposition ; and I have not yet learned 
 from the remarks of any gentleman here that the 
 amendment offered by the gentleman from Natick 
 is not entirely fair. 
 
 Another objection that has been alluded to, is 
 that we have no authority to send out such a 
 proposition to the people. If you turn to the 
 third section of the charter by which we are to be 
 governed here, you will find that authority amply 
 and fully laid down : 
 
 " SECT. 3. The persons so elected delegates 
 shall meet in Convention in the State House, in 
 Boston, on the first Wednesday in May, in the 
 year one thousand eight hundred and fifty- three ; 
 and they shall be the judges of the returns and 
 elections of their own members, and may adjourn 
 from time to time ; and one hundred of the per 
 sons elected shall constitute a quorum for the 
 transaction of business ; and they shall proceed, 
 as soon as may be, to organize themselves in Con 
 vention, by choosing a president and such other 
 officers as they may deem expedient, and by es 
 tablishing proper rules of proceeding ; and when 
 organized, they may take into consideration the pro 
 priety and expediency of revising the present Con 
 stitution of government of this Commonwealth, or 
 the propriety and expediency of making any, and if 
 any, what alterations or amendments, in the pres 
 ent Constitution of government of this Common 
 wealth. And such alterations or amendments, 
 when made and adopted by the said Convention, 
 shall be submitted to the people for their ratifica 
 tion and adoption, in such manner as the Con 
 vention shall direct ; and if ratified by the people 
 in the manner directed by the" said Convention, 
 the Constitution shall be deemed and taken to be 
 altered or amended accordingly ; and if not so 
 ratified, the present Constitution shall be and re 
 main the Constitution of government of this 
 Commonwealth." 
 
 But that section gives us no authority to put to 
 the people any proposition in the manner pro 
 posed by the gentleman from Taunton. As 
 presented by the gentleman from Natick, it is 
 perfectly proper, and, therefore, I shall vote for 
 that amendment. 
 
 Mr. FRENCH, of New Bedford. I simply 
 rise to occupy but a single moment in expressing 
 my approbation of the proposition of the gentle 
 man from Natick. I agree, in the main, with 
 what gentlemen have said in its favor. I believe 
 that it is fair, honorable, and equal ; and although 
 I went for the system that has been adopted by 
 
610 
 
 HOUSE OF REPRESENTATIVES. 
 
 [70th day. 
 
 Friday,] 
 
 MORTON. 
 
 [July 29th. 
 
 the Convention, so far, I am perfectly willing 
 that this system should be tried, and if it can be 
 put to the people in the manner pointed out in 
 that amendment, I am perfectly satisfied with it, 
 and hope that the people will adopt it. I only 
 wished to say that I think it is right and just, 
 and that I trust it will be adopted by the Con 
 vention. 
 
 Mr. MORTON, of Taunton. I have been re 
 peatedly appealed to in regard to this proposition, 
 and am sorry to say that there is no time left me 
 to explain this matter. We have before us two 
 propositions in regard to this matter of represen 
 tation one providing that towns shall send mem 
 bers to the House of Representatives in a certain 
 manner, and the other that they shall be sent by 
 districts in a certain other manner. There was, I 
 believe, a majority of eighty in favor of the town 
 system. Those who represent the town system 
 represent 386,000 people, while those who voted 
 for the district system represented 421,000 ; and 
 although looking to the unequal representation 
 here the town system got a majority of votes in 
 the Convention, the real majority of the people, 
 by nearly forty thousand, were in favor of the 
 other system. 
 
 Under these circumstances, I was anxious that 
 the people themselves might pass upon the ques 
 tion. 
 
 It has been said that this proposition has been 
 presented unfairly, and upon that point I should 
 be glad to be heard for a few moments, because, 
 when I drew it up, I certainly drew it up as 
 fairly as I knew how to do so. I found it neces 
 sary to draw it up in general terms, because this 
 Convention have adopted that identical mode for 
 the Senate, and precisely in the same mode in 
 relation to the elections to be made for members 
 of the House of Representatives, by at least one- 
 third of the people of the Commonwealth. 
 The proposition in relation to the Senate and 
 the cities, which you have already adopted, 
 is just as general in its terms, and as much 
 without details as mine ; and I would ask, 
 whether that is not the only way in which a 
 matter of this sort can be put into the Constitu 
 tion ? I defy gentlemen to say, reasonably, that 
 my proposition is unfair, or to find a Constitu 
 tion anywhere in the United States, in which a 
 matter of this sort is otherwise provided for, un 
 less it be temporarily, because your population 
 changes from time to time. I ask, therefore, un 
 der these circumstances, whether there is any 
 thing unfair in this ? If I had drawn out a 
 chapter of a dozen pages, there would have been 
 an attack upon every chapter and every section. 
 If I had my way, I would do just exactly as 
 
 the President of the Convention, (Mr. Banks,) 
 said he would do put it to the people directly, 
 to say whether they would have a town or a dis 
 trict system of representation. That was just 
 exactly what I wanted to do, but I was obliged 
 to pay some respect to the system the Convention 
 had adopted. I give them all the advantage 
 which belongs to their position. I took their 
 system, and I may say now, I am willing to ex 
 change, and put it all together. I felt bound to 
 take the system as they adopted it, and then pre 
 sent my system as I thought it ought to be 
 adopted into the Constitution, exactly in con 
 formity with the precedent set me by the gentle 
 men on the opposite side. And, Mr. President, 
 is this a fair mode of putting the question to the 
 people ? It has been said that it is unfair. I do 
 not believe that gentlemen intended to impute 
 any wrongful intention upon my part, but in its 
 tendency, they say it is unfair. I appeal to the 
 whole Convention, if it could be drawn up in a 
 form more fair. Now, we are told I will not 
 say by a majority of this Convention, but by a 
 voice which is as near the voice of a majority as 
 any one voice in this House that if this goes 
 out in this form, the people will accept it with a 
 "hurrah." And are we going to say that we 
 will not submit it to the people, because we know 
 they will adopt it with a hurrah ? If the people 
 want it, let them have it. Are they to make a 
 Constitution, or are we to make it ? I say, we 
 are to submit it to them. And why will they 
 give that " hurrah ? " I am sorry that, in so 
 many of our acts, in so large a number of them, 
 we stamp upon their face distrust of the people. 
 "Why, Sir, will the people go in favor of this 
 proposition ? Gentlemen say, simply because they 
 cannot understand it. Mr. President, the gentle 
 man mightily misunderstands the people, if he 
 thinks they cannot comprehend the whole of it. 
 The gentleman thinks they yield to the control of 
 their imagination and fanc3 r , and build therein 
 some beautiful district system, and when they 
 vote, they vote for that. Sir, the people are a 
 practical people, and they can and will under 
 stand it, and know all its operation, so that the 
 supposition that they go for it because they do 
 not understand it, is an impeachment of their 
 capacity. 
 
 I wish to say a word in relation to this amend 
 ment, and I will say only a word. How does it 
 come up ? From the friends of the district sys 
 tem ? No ; it is a foundling, and an illegiti 
 mate, to the friends of the district system ; and 
 not only that, they also put it out to nurse to its 
 enemies. I never knew before of a case where 
 the friends of the offspring did not have the care 
 
70th day.] HOUSE OF REPRESENTATIVES. 
 
 611 
 
 Friday,] MOKTON YEAS. 
 
 [July 29th. 
 
 of it. And this is to be put out by the legisla 
 
 Dean, Silas 
 
 Knowlton, William H. 
 
 ture constituted by a minority. One-third of 
 
 Deming, Elijah S. 
 
 Knox, Albert 
 
 the people elect the legislature which is to have 
 charge of this system. I beg gentlemen to look 
 
 Denton, Augustus 
 DeWitt, Alexander 
 Duncan, Samuel 
 
 Ladd, Gardner P. 
 Langdon, Wilber C. 
 Leland, Alden 
 
 at it. Sir, those people who are adverse to 
 
 Dunham, Bradish 
 
 Little, Otis 
 
 sustaining town representation, would have the 
 
 Durgin, John M. 
 
 Loomis, E. Justin 
 
 power to cut up every town, and city, and ward, 
 
 Eames, Philip 
 
 Marble, William P. 
 
 in the whole Commonwealth. In my system, 
 
 Earle, John M. 
 
 Marcy, Laban 
 
 they are restrained from dividing towns and wards. 
 But if you have a minority body that wishes to 
 
 Easland, Peter 
 Easton, James, 2d 
 Edwards, Elisha 
 
 Mason, Charles 
 Merritt, Simeon 
 Monroe, James L. 
 
 put out a system to be rejected, they have noth 
 
 Edwards, Samuel 
 
 Moore, James M. 
 
 ing to do but to cut up one town and another, 
 
 Ely, Joseph M. 
 
 Morton, Elbridge G. 
 
 all over the Commonwealth, and put that to the 
 
 Fay, Sullivan 
 
 Morton, Marcus, Jr. 
 
 people as their system. We have heard of gerry 
 mandering, and the gentleman for Wilbraham, 
 
 Fellows, James K. 
 Fisk, Lyman 
 Fiske, Emery 
 
 Morton, William S. 
 Nash, Hiram 
 Nichols, William 
 
 (Mr. Hallett,) says we have it in this system, if 
 
 Foster, Aaron 
 
 Nute, Andrew T. 
 
 adopted at all. I say you cannot get along with 
 
 Fowle, Samuel 
 
 Ober, Joseph E. 
 
 out suffering the legislature to make the districts, 
 and all that you can do is, to guard against abuse 
 
 Freeman, James M. 
 French, Charles A. 
 French, Rodney 
 
 Orne, Benjamin S. 
 Osgood, Charles 
 Paine, Benjamin 
 
 as well as you can. 
 
 French, Samuel 
 
 Paine, Henry 
 
 I have now only time to ask for the yeas and 
 
 Frothingham, R., Jr. 
 
 Parris, Jonathan 
 
 nays upon the amendment of the gentleman from 
 
 Gale, Luther 
 
 Partridge, John 
 
 Natick. 
 
 Gardner, Johnson 
 
 Peabody, Nathaniel 
 
 The yeas and nays were ordered. 
 
 Gates, Elbridge 
 
 Pease, Jeremiah, Jr. 
 
 The hour of four o clock having arrived, at 
 which time the Convention had determined to 
 
 Gilbert, Washington 
 Giles, Charles G. 
 Gooding, Leonard 
 
 Penniman, John 
 Perkins, Jesse 
 Phinney, Silvanus B. 
 
 take the vote, the first question recurred upon the 
 
 Goulding, Dalton 
 
 Pool, James M. 
 
 adoption of the resolution of Mr. Wilson, as a 
 
 Graves, John W. 
 
 Powers, Peter 
 
 substitute for the resolution of Mr. Morton, and 
 
 Green, Jabez 
 
 Putnam, John A. 
 
 the roll being called thereon, there were yeas, 
 209 ; nays, 138 as follows : 
 
 Greene, William B. 
 Griswold, Josiah W. 
 Griswold, Whiting 
 
 Rawson, Silas 
 Richards, Luther 
 Richardson, Samuel H. 
 
 
 Hadley, Samuel P. 
 
 Rockwood, Joseph M. 
 
 YEAS. 
 
 Hallett, B. F. 
 
 Rogers, John 
 
 Adams, Shubael P. Brownell, Joseph 
 
 Hapgood, Lyman W. 
 
 Royce, James C. 
 
 Allen, James B. Buck, Asahel 
 
 Hapgood, Seth 
 
 Sanderson, Amasa 
 
 Allen, Joel C. Burlingame, Anson 
 
 Harmon, Phineas 
 
 Sanderson, Chester 
 
 Allen, Parsons Butler, Benjamin F. 
 
 Haskins, William 
 
 Sikes, Chester 
 
 Alley, John B. Cady, Henry 
 
 Hayden, Isaac 
 
 Simmons, Perez 
 
 Allis, Josiah Caruthers, William 
 
 Hazewell, C. C. 
 
 Simonds, John W. 
 
 Alvord, D. W. Case, Isaac 
 
 Heath, Ezra, 2d 
 
 Smith, Matthew 
 
 Austin, George Chandler, Amariah 
 
 Hewes, James 
 
 Sprague, Melzar 
 
 Baker, Hillel Chapin, Chester W. 
 
 Hewes, William H. 
 
 Spooner, Samuel W. 
 
 Ball, George S. Chapin, Daniel E. 
 
 Hobart, Henry 
 
 Stacy, Eben H. 
 
 Barrett, Marcus Chapin, Henry 
 
 Hobbs, Edwin 
 
 Stevens, Granville 
 
 Bates, Eliakim A. Childs, Josiah 
 
 Holder, Nathaniel 
 
 Stevens, William 
 
 Bates, Moses, Jr. Churchill, J. McKean 
 
 Hood, George 
 
 Strong, Alfred L. 
 
 Beal, John Clark, Henry 
 
 Howard, Martin 
 
 Sumner, Increase 
 
 Bennett, Zephaniah Clark, Ransom 
 
 Howland, Abraham H. 
 
 Sumner, Charles 
 
 Bigelow, Edward B. Clark, Salah 
 
 Hoyt, Henry K. 
 
 Swain, Alanson 
 
 Bird, Francis W. Clarke, Alpheus B. 
 
 Hunt, Charles E. 
 
 Taft, Arnold 
 
 Bishop, Henry W. Cleverly, William 
 
 Huntington, Charles P. 
 
 Thayer, Willard, 2d 
 
 Bliss, Gad O. Cole, Sumner 
 
 Huntington, George II. 
 
 Thomas, John W. 
 
 Boutwell, George S. Crane, George B. 
 
 Hurlbut, Moses C. 
 
 Thompson, Charles 
 
 Boutwell, Sewell Cross, Joseph W. 
 
 Johnson, John 
 
 Tilton, Abraham 
 
 Breed, Hiram N. Cushman, Henry W. 
 
 Kendall, Isaac 
 
 Tilton, Horatio W. 
 
 Bronson, Asa Cushman, Thomas- 
 
 Keyes, Edward L. 
 
 Turner, David 
 
 Brown, Adolphus F. Cutler, Simeon N. 
 
 Kimball, Joseph 
 
 Turner, David P. 
 
 Brown, Alpheus R. Davis, Charles G. 
 
 Kingman, Joseph 
 
 Tyler, William 
 
 Brown, Artemas Davis, Ebeiiezer 
 
 Knight, Hiram 
 
 Underwood, Orison 
 
 Brown, Hammond Davis, Isaac 
 
 Knight, Jefferson 
 
 Viles, Joel 
 
 Brown, Hiram C. Davis, Robert T. 
 
 Knight, Joseph 
 
 Yinton, George A. 
 
 Brownell, Frederick Day, Gilman Knowlton, Charles L. 
 
 Wallace, Frederick, T. 
 
612 
 
 HOUSE OF REPRESENTATIVES. [70th day. 
 
 Friday,] 
 
 NAYS ABSENT EARLE GRISWOLD. [July 29th. 
 
 Wallis, Freeland 
 
 Williams, J. B. Stevenson, J. Thomas Weeks, Cyrus 
 
 Walker, Amasa 
 
 Wilson, Henry 
 
 Stiles, Gideon Wetmore, Thomas 
 
 Ward, Andrew H. 
 
 Winn, Jonathan B. 
 
 Talbot, Thomas Wheeler, William F. 
 
 Warner, Samuel, Jr. 
 
 Winslow, Levi M. 
 
 Thayer, Joseph White, Benjamin 
 
 Waters, Asa H. 
 
 Wood, Nathaniel 
 
 Tileston, Edmund P. Wilbur, Daniel 
 
 Western, Gershom B. 
 
 Wood, Otis 
 
 Train, C. R. Wilbur, Joseph 
 
 Whitney, Daniel S. 
 
 Wright, Ezekiel 
 
 Tyler, John S. Wilder, Joel 
 
 Whitney, James S. 
 
 
 Upham, Charles W. Wilkinson, Ezra 
 
 
 
 Upton, George B. Williams, Henry 
 
 NAYS. 
 
 Walcott, Samuel B. Wilson, Milo 
 
 Adams, Benjamin P. 
 Aldrich, P. Emory 
 
 Heywood, Levi 
 Hillard, George S. 
 
 Wales, Bradford L. Wood, Charles C. 
 Walker, Samuel, Woods, Josiah B. 
 
 Andrews, Robert 
 
 Hinsdale, William 
 
 ABSENT 
 
 Aspinwall, William 
 
 Hobart, Aaron 
 
 
 Atwood, David C. 
 
 Hooper, Foster 
 
 Abbott, Alfred A. Knowlton, J. S. C. 
 
 Ayres, Samuel 
 
 Hopkinson, Thomas 
 
 Abbott, Josiah G. Lawrence, Luther 
 
 Bancroft, Alpheus 
 
 Houghton, Samuel 
 
 Allen, Charles Lincoln, Abishai 
 
 Barrows, Joseph. 
 
 Hubbard, William J. 
 
 Appleton, William Lord, Otis P. 
 
 Bartlett, Sidney 
 
 Hunt, William 
 
 Ballard, Alvah Marvin, Abijah P. 
 
 Beebe, James M. 
 
 Hurlburt, Samuel A. 
 
 Banks, Nathaniel P., Jr. Marvin, Theophilus R. 
 
 Bell, Luther V. 
 
 Hyde, Benjamin D. 
 
 Bartlett, Russel Meader, Reuben 
 
 Bennett, William, Jr. 
 
 Jackson, Samuel 
 
 Beach, Erasmus D. Morss, Joseph B. 
 
 Bigelow, Jacob 
 
 James, William 
 
 Blagden, George W. Nayson, Jonathan 
 
 Booth, William S. 
 
 Jenkins, John 
 
 Bliss, William C. Newman, Charles 
 
 Bradbury, Ebenezer 
 
 Jenks, Samuel II. 
 
 Braman, Milton P. Norton, Alfred 
 
 Bradford, William J. A. Kellogg, Giles C. 
 
 Bullen, Amos H. Oliver, Henry K. 
 
 Brewster, Osymn 
 
 Kuhn, George H. 
 
 Bumpus, Cephas C. Packer, E. Wing 
 
 Brinley, Francis 
 
 Ladd, John S. 
 
 Carter, Timothy W. Park, John G. 
 
 Briggs, George N. 
 
 Lawton, Job G., Jr. 
 
 Clarke, Stillman Parker, Samuel D. 
 
 Bryant, Patrick 
 
 Lincoln, Frederic W., Jr. 
 
 Copeland, Benjamin F. Parsons, Samuel C. 
 
 Bullock, Rufus 
 
 Littlefield, Tristram 
 
 Cressy, Oliver S. Parsons, Thomas A. 
 
 Choate, Rufus 
 
 Livermore, Isaac 
 
 Crowell, Seth Payson, Thomas E. 
 
 Coggin, Jacob 
 
 Lothrop, Samuel K. 
 
 Crowninshield, F. B. Perkins, Noah C. 
 
 Cogswell, Nathaniel 
 
 Loud, Samuel P. 
 
 Cummings, Joseph Pierce, Henry 
 
 Cole, Lansing J. 
 
 Lowell, John A. 
 
 Curtis, Wilber Preston, Jonathan 
 
 Conkey, Ithamar 
 
 Miller, Seth, Jr. 
 
 Dana, Richard H., Jr. Richardson, Nathan 
 
 Cook, Charles E. 
 
 Mixter, Samuel 
 
 Dehon, William Rockwell, Julius 
 
 Cooledge, Henry F. 
 Crittenden, Simeon 
 
 Morey, George 
 Morton, Marcus 
 
 Eaton, Calvin D. Sampson, George R. 
 Fitch, Ezekiel W. Sheldon, Luther 
 
 Crockett, George W. 
 
 Noyes, Daniel 
 
 Foster, Abram Sherman, Charles 
 
 Crosby, Leander 
 
 Orcutt, Nathan 
 
 Gooch, Daniel W. Storrow, Charles S. 
 
 Davis, John 
 
 Paige, James W. 
 
 Greenleaf, Simon Stutson, William 
 
 Davis, Solomon 
 
 Parker, Adolphus G. 
 
 Hall, Charles B. Taber, Isaac C. 
 
 Dawes, Henry L. 
 
 Parker, Joel 
 
 Haskell, George Taylor, Ralph 
 
 Denison, Hiram S. 
 
 Peabody, George 
 
 Henry, Samuel Tower, Ephraim 
 
 Doane, James C. 
 
 Perkins, Daniel A. 
 
 Huntington, Asahel Warner, Marshal 
 
 Dorman, Moses 
 
 Perkins, Jonathan C. 
 
 Ide, Abijah M., Jr. White, George 
 
 Eaton, Lilley 
 
 Phelps, Charles 
 
 Jacobs, John Wilkins, John H. 
 
 Ely, Homer 
 
 Pluukett, William C. 
 
 Kellogg, Martin R. Wilson, Willard 
 
 Eustis, William T. 
 
 Pomroy, Jeremiah 
 
 Kinsman, Henry W. Wood, William H. 
 
 Farwell, A. G. 
 
 Prince, F. O. 
 
 
 Fowler, Samuel P. 
 
 Putnam, George 
 
 Absent, and not voting, 72. 
 
 French, Charles H. 
 
 Rantoul, Robert 
 
 
 Gardner, Henry J. 
 
 Read, James 
 
 So the substitute was adopted. 
 
 Gilbert, Wanton C. 
 
 Reed, Sampson 
 
 The question next recurred upon ordering the 
 
 Giles, Joel 
 Gould, Robert 
 Goulding, Jason 
 
 Rice, David 
 Richardson, Daniel 
 Ring, Elkanah, Jr. 
 
 resolve, as amended, to its second reading. 
 Mr. EARLE, of Worcester, called for the yeas 
 
 Gray, John C. 
 
 Ross, David S. 
 
 and nays upon that question, but they were re 
 
 Hale, Artemas 
 
 Sargent, John 
 
 fused, by a vote of 35 in the affirmative, and 230 
 
 Hale, Nathan 
 
 Schouler, William 
 
 in the negative. 
 
 Hammond, A. B. 
 Hathaway, Elnathan P. 
 Hawkes, Stephen E. 
 Hayward, George 
 
 Sherril, John 
 Sleeper, John S. 
 Souther, John 
 Stetson, Caleb 
 
 The question was then taken upon ordering 
 the resolve, as amended, to a second reading, and 
 it was decided in the affirmative ayes, 183 ; noes, 
 
 Heard, Charles 
 
 Stevens, Charles G. 
 
 90. 
 
 Hersey, Henry 
 
 Stevens, Joseph L., Jr. 
 
 Mr. GRISWOLD, for Erving. I move that the 
 
70th day.] 
 
 HOUSE OF REPRESENTATIVES, &c. 
 
 613 
 
 Friday,] 
 
 GARDNER WILSON PLUNKETT EARLE BUTLER. 
 
 [July 29th. 
 
 rule requiring the resolve to take its second read 
 ing to-morrow, be suspended, and that the resolve 
 take its second reading at this time. 
 
 The question was taken, and the motion was 
 agreed to. 
 
 The resolve was then read a second time. 
 
 The question next recurring upon the final 
 passage of the resolve, 
 
 Mr. GARDNER, of Boston. I move to 
 amend the resolve, by striking out "1855," and 
 inserting "1853." 
 
 Members of this Convention will see at once 
 the effect of that amendment, if adopted. It 
 will obviate the objection which the gentleman 
 from Natick makes, to having the matter put to 
 the people in such a way that there will be con 
 fusion existing. The question will not go to the 
 people this fall, but the legislature to be chosen 
 this fall, under the present system of representa 
 tion, will divide the State into representative and 
 senatorial districts, and a year from this fall, the 
 people will be called upon to vote upon the ques 
 tion. Now, Sir, I presume that the debates of 
 this Convention will be" spread abroad in the 
 community, and will be discussed generally 
 throughout the State, and before they grow stale 
 in the public mind, I should like to have the peo 
 ple vote upon these two propositions, and not 
 have it put off until after the next decennial cen 
 sus of the State. And why not have it now : 
 Why not have it a year from this time ? I can 
 see no objection to it, unless this is an objection, 
 that if the division is made next year, it will be 
 made by a legislature elected on the present basis 
 of representation. If it is deferred, as proposed 
 by the resolution, it will be made by the legislature, 
 which every-body here confesses, is elected by a 
 miserable minority of one-third of the commu 
 nity. That, Sir, is the only difference a divis 
 ion made by a legislature elected by one-third of 
 the people, or a division made by a legislature 
 constituted as it will be hereafter. 
 
 The question does not require argument, or 
 elaboration, to make it apparent to every mind. 
 Every individual here grasps the idea, and I am 
 willing to leave it with the Convention to decide, 
 whether they will accept the amendment or not. 
 
 Mr. WILSON, of Natick. Not wishing to 
 consume the time of the Convention, I simply 
 say, in reply to the remarks of the gentleman 
 from Boston, (Mr. Gardner,) that the Conven 
 tion have already decided to have the decennial 
 census taken in 1855, 1865, 1875, and so on, 
 instead of the years 1850, 1860, &c., and thus my 
 plan comes in, in exact accordance with that. 
 
 Mr. GARDNER. If this comes in in 1855, 
 under the decennial census, why does he make 
 
 it hereafter in 1866, 1876, &c. ? And if they 
 come in in 1865, how will they get at the decennial 
 census taken the same year ? 
 
 Mr. WILSON. The census is to be taken in 
 1855, 1865, 1875, &c. The legislature chosen in 
 the autumn of 1855 will put this question out to 
 the people, and the legislature chosen in 1855, 
 will arrange the districts, which the people will 
 decide upon in 1856. It comes in precisely with 
 that arrangement, and for that reason it was so 
 arranged. 
 
 Mr. PLUNKETT, of Adams. I ask for the 
 yeas and nays upon the amendment of the gen 
 tleman from Boston, (Mr. Gardner). 
 
 The yeas and nays were not ordered, one-fifth 
 not voting therefor. 
 
 Mr. EARLE, of Worcester. I shall detain 
 the Convention but for a moment, and that will 
 be to state two reasons, and two only, why I 
 should not be in favor of the proposed amend 
 ment. The first is, that if the districting is made 
 according to the amendment, which will be a 
 work of great labor, and occupy the attention of 
 the legislature for some time, it can stand but for 
 one year, because the census is to be taken in 
 1855, and the legislature elected in that year 
 would be required to make a new apportionment 
 under the new census. That alone, it appears to 
 me, is a sufficient reason why the amendment 
 should not be made. 
 
 Another reason is, that in the legislature to be 
 elected in 1855, the whole State will be repre 
 sented. While the one next elected, will not rep 
 resent the whole State, because some towns have 
 already exhausted their right to representation. 
 
 The question was then taken upon the amend 
 ment offered by Mr. Gardner, and the amendment 
 was not agreed to. 
 
 The question again recurring upon the final 
 passage of the resolve, as amended, was put, and 
 decided in the affirmative ayes, 189 ; noes, 82. 
 
 So the resolve was passed. 
 
 Sectarian Schools. 
 
 Mr. WILSON. I move that the Convention 
 now proceed to the consideration of the Orders 
 of the Day. 
 
 The motion was agreed to, and the Convention 
 proceeded to the consideration of the next matter 
 upon the Orders of the Day, which was the 
 motion of the gentleman from Quincy, (Mr. 
 White,) to reconsider the vote by which the 
 resolves upon the subject of sectarian schools 
 were passed. 
 
 Mr. BUTLER, of Lowell. I wish to say one 
 word upon this subject, and that is, that after an 
 examination of this matter, I can see no cause for 
 
614 
 
 SECTARIAN SCHOOLS. 
 
 [70th day. 
 
 Friday,] 
 
 WHITE PARKER KEYES. 
 
 [July 29th. 
 
 an alteration of the Constitution in this respect. 
 "We have met no trouble, seen no difficulty, and 
 there has been nothing sectarian heretofore in the 
 division of the public moneys. I hope we shall 
 not undertake to make an amendment to the 
 Constitution, which has not been called for from 
 any quarter. I trust the vote will be recon 
 sidered. 
 
 Mr. WHITE, of Quincy. The reason why I 
 made the motion to reconsider, was, that the 
 resolve was taken up in rather a thin House, and 
 passed without much consideration, and without 
 any debate. As it contains a principle unlike 
 anything in the present Constitution, I think it 
 should have a full consideration. I ask the yeas 
 and nays upon the motion to reconsider. 
 
 The yeas and nays were not ordered, one-fifth 
 of those voting, not voting in the affirmative. 
 
 The question being upon a reconsideration of 
 the vote by which the resolve was passed, the 
 Secretary, upon the request of Mr. Plunkett, read 
 the resolve, as follows : 
 
 Resolved, That all moneys raised by taxation in 
 the towns and cities for the support of Public 
 Schools, and all moneys which may be appropri 
 ated by the State for the support of Common 
 Schools, shall be applied to and expended in no 
 other schools than those which are conducted 
 according to law, under the order and superin 
 tendence of the authorities of the town or city in 
 which the money is to be expended ; and such 
 moneys shall never be appropriated to any relig 
 ious sect for the maintenance, exclusively, of its 
 own schools. 
 
 Mr. PARKER, of Cambridge. I will detain 
 the Convention but a moment at this time, when 
 members appear to be so anxious to take the 
 question. This resolve was introduced by me 
 some days since, and it was printed for the infor 
 mation of the Convention. It was proposed as a 
 substitute for the resolution reported by a com 
 mittee, on account of some objection to the 
 phraseology of that resolution, and with the view 
 of placing this matter in such a shape that no 
 objection could be taken to the form in which the 
 measure was proposed. I moved on Wednesday 
 of this week to take the documents from the table, 
 and the adoption of this resolution as an amend 
 ment. There was, to be sure, at that time a thin 
 House, but it was at the ordinary hour of busi 
 ness and after other business had been transacted. 
 There was no springing of any surprise upon any 
 body, because I had previously, in the course of 
 the forenoon, moved to lay the Orders of the Day 
 upon the table, with the declared purpose of tak 
 ing up this subject. It was known, therefore, 
 that it was a matter before the Convention, and it 
 
 might reasonably have been inferred that an at 
 tempt would be made to take it up at the earliest 
 convenient time. It was adopted without any 
 division, because there was hardly any opposition 
 to it. It met with the approbation of nearly all 
 the members of the Convention present at the 
 time. 
 
 Now, Sir, I have heard no reason why this 
 vote should be reconsidered, except it be the 
 opinion of the gentleman from Lowell, (Mr. 
 Butler,) that it is not necessary to take any action 
 upon the subject. If that stands as a good reason 
 for the action of the majority of this Convention, 
 this vote will be reconsidered, of course. But 
 unless it does. I trust that a measure so important 
 to the welfare of this Commonwealth, as I regard 
 this to be, will be suffered to stand as a part of 
 the constitutional amendments to be proposed to 
 the people. 
 
 Sir, this resolution has nothing sectarian in its 
 character. It proposes simply to retain and secure 
 your common schools in the condition in which 
 they are at the present time, beyond all perad- 
 venture, come from what quarter an attempt for 
 change may come and I care not from what 
 quarter it comes and to secure them as the pride 
 and glory of the State, the pride and glory of New 
 England, and the foundation and support of our 
 popular institutions. If the members of the Con 
 vention are prepared to say that they will not 
 sustain a proposition to that effect, they will sup 
 port this motion to reconsider, and strike out the 
 resolution which has been adopted. 
 
 Mr. KEYES, for Abington. This resolution 
 has been already adopted by the Convention. On 
 reading it over, I find it contains a proposition 
 that will always be held sound in Massachusetts. 
 I trust no man, here or elsewhere, will say it is not 
 just and proper. The inference to be drawn from 
 it is, that we are opposed to having the public 
 money which is raised for school purposes, ap 
 plied to the support of sectarian schools. I will 
 venture to say that every man in Massachusetts 
 is in favor of it. If there is a man in Massa 
 chusetts who is ooposed to it, he is an enemy to 
 Massachusetts, an enemy to the school system of 
 Massachusetts, and I presume there is no such 
 man. 
 
 Now, Sir, there has not been a single reason 
 given in favor of reconsideration. If there is any 
 reason that can be given, it is some secret reason 
 that men dare not avow. We may all have some 
 idea what it may be. I do not believe, however, 
 there is any foundation for the apprehension that 
 seems to be entertained that the school money 
 will be devoted to sectarian purposes. The 
 people of Massachusetts are opposed to granting 
 
70th day.] 
 
 SECTARIAN SCHOOLS. 
 
 615 
 
 Friday,] 
 
 BIRD HALLETT. 
 
 [July 29th. 
 
 public money for sectarian schools ; that we all 
 know. 
 
 Mr. BIRD, of Walpole. I submit, Sir, with 
 all respect for the gentleman for Abington, that 
 the burden of proof does not rest upon us to 
 show that this ought to be reconsidered, but upon 
 those who oppose the reconsideration to show 
 why the provision should stand as it is, and for 
 this reason : Gentlemen know very well that this 
 matter has never been discussed in this House, 
 and the reasons have never been assigned why 
 this provision should go into the Constitution. 
 It came before us, was laid upon the table, sev 
 eral attempts were made to take it from the table, 
 and the Convention uniformly refused. It came 
 up finally at a time when very little attention was 
 given to it, and very little consideration. An 
 amendment was proposed by the gentleman from 
 Cambridge, and it was adopted, with very few 
 words from him, nothing like an argument, by a 
 very small vote. And the resolve was passed to 
 a second reading, and I believe the rule was sus 
 pended, and it was passed instanter, or it may 
 have gone over to the next day. At all events, it 
 was passed sub silcnlio, just as it now stands, and 
 I submit, that reasons have not yet been given 
 why a change of this kind should be made in the 
 Constitution. 
 
 I hope the motion will prevail, and that it will 
 be reconsidered, even if, in the end, we do not 
 adopt it. I want the reasons shown, that I may 
 give the people in the narrow circle in which I 
 move, the reasons why we should adopt this pro 
 vision. I confess that, as at present advised, I 
 cannot defend it. 
 
 I do not like the resolve. It does not say one 
 word about giving any portion of the money of 
 the State to colleges and higher seminaries of 
 learning. Money may be appropriated to secta 
 rian colleges, notwithstanding its adoption ; and I 
 submit that from our action here it may be in 
 ferred that we are willing that the public money 
 should be given to sectarian academies and col 
 leges. I am not willing that any such inference 
 should be drawn from our action in regard to this 
 matter. 
 
 And there is another objection. Every-body 
 knows this resolution appears to be aimed at one 
 class of our citizens, one denomination of religion. 
 Nobody has intimated any apprehension that 
 money would be used for the benefit of Protest 
 ant sectarianism. I have never heard that ques 
 tion raised in the State ; but the question has 
 been raised in the State, and discussed, in relation 
 to the support of Catholic schools ; and I am not 
 willing, as one of the friends of the Constitution, 
 that it should be embarrassed by any such provis 
 
 ion. It is too important a question to be passed 
 over in this manner, without any reasons given 
 for and against it ; and impatient as we all are to 
 finish our labors here, I hope the Convention will 
 look seriously at this matter before they assent to 
 its being made a part of the organic law. 
 
 Mr. HALLETT, for Wilbraham. I will only 
 advert to one consideration, why I am opposed to 
 touching this matter of conscience in the Consti 
 tution. I believe no man desires to establish an 
 ecclesiastical tribunal ; yet, in my judgment, this 
 provision, in effect, does establish such a tribunal ; 
 and why ? Because it declares that money raised 
 for the support of common schools, "shall never be 
 appropriated to any religious sect^/br the exclusive 
 maintenance of its own schools." Now, what does 
 that mean ? What is a religious sect ? What is 
 a maintenance exclusively of the schools of a re 
 ligious sect ? Who is to determine whether the 
 town s money has been appropriated to any relig 
 ious sect, or not ? Who is to say how far you 
 may go in maintaining a sectarian school, and 
 still not do it exclusively? Anything less than 
 the icJiole is not exclusive. Therefore, you may 
 apply your money to a sectarian school all but. 
 Any exception will save it. Who shall settle 
 this ? It must be determined by some court. 
 Therefore, your supreme court is to become, un 
 der this clause, an ecclesiastical court, to determine 
 what is a religious sect, and what is the exclusive 
 maintenance of a sectarian school. Then, how 
 far are you to go in this matter of ecclesiastical 
 definitions ? What is the platform ? It seems to 
 me that here are difficulties of construction that 
 you cannot aviod or surmount otherwise than by 
 giving a new jurisdiction to the supreme court 
 as an ecclesiastical tribunal. They are difficulties 
 which the able gentleman who introduced this 
 proposition, will find at the very outset, and in 
 creasing at every step. 
 
 Now, I am unwilling to incur the risk of rais 
 ing a question here which is of extreme difficulty 
 concerning religious opinions, and one which 
 touches the conscience. What is there wrong 
 about our public schools at present ? Are they 
 devoted to sectarian purposes ? Is your money 
 going to establish sectarian schools ? Nobody 
 asserts that such is the case ; but somebody 
 imagines that such a state of things may arise in 
 the future ; that sectarian schools are going to be 
 established ; that some new sect may outvote the 
 Protestants, and claim the school fund. I have 
 no fears on that score. I want free opinions, and 
 I would no sooner give Protestants than Catholics 
 the power to control religious opinions and senti 
 ments. But I do not want, if I can avoid it, to 
 put a firebrand into our town meetings, by raising 
 
616 
 
 SECTARIAN SCHOOLS. 
 
 [70th day. 
 
 Friday,] 
 
 HAT.LETT WOOD. 
 
 [July 29th. 
 
 this imaginary issue, which will never come if we 
 let it alone. You are treading upon delicate 
 ground, when you undertake to interfere with 
 men s consciences. What is the meaning of 
 that proposition ? We propose to declare, that 
 no part of the money that is raised for school pur 
 poses shall be appropriated to any other purpose, 
 except to its legitimate uses, for fear we may do 
 something that will favor sectarianism. We con 
 tend that it is all right now, but we are afraid of 
 something ahead. Where will it end? Your 
 town meetings will be thrown into confusion, by 
 contentions about the religious opinions of school 
 teachers. Men will get together, and undertake, 
 as in the times of Gov. Winthrop, to regulate 
 men s consciences. It will be as difficult to settle 
 a schoolmaster as a minister. 
 
 Have we not got past this meddling with 
 conscience ? It appears we have not entirely, for 
 this Convention has, by refusing to amend the 
 Bill of Rights, relating to religious opinions, 
 solemnly declared, that a man " shall be molested 
 for his opinions and sentiments concerning relig 
 ion." That is bad enough. And that is far 
 enough to go. I thought it too far : to say that 
 in this good Commonwealth we shall undertake 
 to interfere with any man s religious belief, and 
 that no man shall be unmolested who is so un 
 fortunate as conscientiously to be without any 
 religious belief. Nevertheless, I submit to that 
 decision here, and will patiently wait for liberal 
 progress, in the hope that another generation will 
 be more enlightened. But, pray, let us have no 
 more of sectarianism in our Constitution. And 
 let us have no interdiction, or intermeddling in 
 opinions of this sort. I do not believe the learned 
 gentleman who introduced this proposition, in 
 tends any such thing, as to exclude a particular 
 religious sect from our public schools. I know 
 him to be of a very different spirit ; but I say, 
 that is the construction I put upon it. And ma ay 
 others understand it in the same way, and the 
 very doubt it raises, is r?ason enough to reject it. 
 I hope, therefore, that we shall agree to the recon 
 sideration, and then strike the provision out 
 altogether, as one of doubtful meaning and ex 
 pediency. 
 
 Mr. WOOD, of Fitchburg. My attention has 
 just been called to this resolution, and that brings 
 to my recollection some little question regarding 
 this subject, which arose in my own town. We 
 have, growing up, between three and four hun 
 dred Irish children. About one in twenty of 
 these go to our common schools. Many of the 
 intelligent Irish do not and will not send their 
 children to our schools. I had a conversation 
 with one of these, a man who desires the advance 
 
 ment of learning as much as I or any man in the 
 State. I asked him why he would not send to 
 our schools. His answer was : " I will not send 
 my children to a sectarian school." "A secta 
 rian school ? " said I. " Heavens ! I did not 
 know that our schools were sectarian." " Well," 
 said he, "that is just the way with you here in 
 America, and with religionists all over the world. 
 Our sect is no sect ; every-body else is sectarian. 
 Now," said he, "what constitutes a sectarian 
 school ? It is where you will have all the Pro 
 testant forms of worship introduced. You will 
 insist on having prayers according to the Protest 
 ant forms. You introduce your Protestant Bibles 
 and other Protestant books, and you will have 
 none other. Now, I put it to you, would you 
 be willing to send your children to be instructed 
 by Roman Catholic priests ; to be compelled to 
 read their Bible, and have comments upon it?" 
 I said " No." "Very well, then, you ought not 
 to expect us to do it." Now, I put it to this 
 Convention, how it is possible to raise any money 
 by taxes to be expended for common schools, if it 
 cannot be expended for either Protestant or Ro 
 man Catholic schools ? 
 
 Now, let me say another thing. It is all im 
 portant that our Irish children should be edu 
 cated. It is as important to us as it is to the Irish 
 themselves. We do not want them to grow up 
 amongst us, ignorant and vicious, first to rob our 
 hen-roosts, and afterwards to commit more serious 
 offences. It is all important that they should be 
 educated. If we cannot educate them in such 
 schools as we have, let us give them such schools as 
 they can accept. And I would appropriate money 
 for that purpose. Their own forms are dear to them, 
 and they will not send their children where there 
 is danger that their minds will be perverted, if not 
 converted. Therefore, although I want no money 
 to be appropriated to sectarianism, I would de 
 vote a portion of the money that is designed for 
 common school purposes, to furnish schools for 
 them. As for compelling them to attend our 
 schools, I would do no such thing. I would let 
 the matter, as regards that, take its natural course; 
 there should be no compulsion on that score. We 
 have a sufficient sense of liberty the Irish have 
 themselves to know that there should be no 
 constraint about the matter. Formerly, it was 
 said that they would do nothing contrary to the 
 wishes and orders of their priests, that they be 
 lieved them to be God s vicegerents on earth; 
 but they are getting over that. So I think there 
 need be no alarm in regard to the Roman Catho 
 lics ; for I cannot help thinking that this has a 
 strong squinting against them. We may pro 
 scribe them, put a clog upon them, attempt in 
 
70th day.] 
 
 SECTARIAN SCHOOLS. 
 
 617 
 
 Friday,] 
 
 LOTHROP WOOD. 
 
 [July 29th. 
 
 every way to render them a degraded race ; but 
 be assured they will not continue to be a degraded 
 race in Massachusetts, or in the other States of 
 the Union ; not that I fear them ; but let us treat 
 them liberally give them a fair chance to come 
 and be identified with us, that their sympathies 
 may be as ours. Pass no law, especially no fun 
 damental law, against any sect in religion. I 
 hope the vote will be reconsidered. 
 
 Mr. LOTHROP, of Boston. The resolution 
 which it is proposed shall be reconsidered, was 
 introduced by the gentleman from Cambridge, as 
 an amendment to the Report of the Committee 
 on the Encouragement of Literature, of which I 
 had the honor to be a member. The attention of 
 the Committee was called to the subject, by an 
 order passed in Convention and referred to it. 
 I agree, Sir, with the remark that has been made 
 by two gentlemen, that if the subject had not 
 been brought up at all it would have been better. 
 Gentlemen have said we are introducing a new 
 thought, principle, or suggestion, into the Consti 
 tution ; that there is nothing in the old Constitu 
 tion about it, and should not be in the new ; that 
 the matter would be left safe and well, without 
 this resolution. Very true. There is nothing in 
 the old Constitution relating in direct and express 
 terms to the subject ; and if the order which was 
 the basis of this resolution had not been intro 
 duced, I should not have been in favor of making 
 any more special provisions in regard to sectarian 
 ism in our public schools, than exist in the pres 
 ent Constitution. But, inasmuch as the subject 
 has been brought before the Convention, and re 
 ported upon, and that report adopted, I believe, 
 now, it would be impolitic and injurious, to re 
 consider, and strike out the resolution which has 
 been passed. It would be equivalent to saying 
 that we do approve of sectarian schools. 
 
 As has been stated by the gentleman from 
 "Walpole, the matter passed without much con 
 sideration, was carried rapidly through its several 
 stages. The resolution was quietly adopted by a 
 large vote, with scarcely a show of opposition. 
 And, for this very reason, it seems to me that the 
 task rests not with those who oppose, but with 
 those who favor the reconsideration, to show rea 
 sons why it should be reconsidered. The subject 
 having been thus brought before us, and acted 
 upon, I believe and maintain that, in the present 
 condition and prospects of the community, it is 
 highly desirable that we should incorporate into 
 the Constitution the fundamental principle laid 
 down in the resolution, and instead of promoting 
 sectarianism, or making it necessary to establish a 
 board to ascertain and determine what sectarian 
 ism is, it will have the effect to suppress it. I 
 
 42 
 
 maintain that the establishment of common 
 schools, in which the great mass of the children 
 of the community, of all religious denominations, 
 are educated together, is the only way in which we 
 can prevent and keep down the spirit of sectarian 
 ism. I ask the gentleman from Fitchburg, if he 
 believes that his policy or plan will tend to pre 
 vent sectarianism ? Sir, it is the plan which will 
 tend, of all others, to spread sectarianism through 
 all our families, down to the youngest children, 
 and educate them in intense religious hatred of each 
 other. Sir, I want all our children, the children of 
 our Catholic and Protestant population, to be edu 
 cated together in our public schools. And if gen 
 tlemen say that the resolution has a strong leaning 
 towards the Catholics, and is intended to have 
 special reference to them, I am not disposed to 
 deny that it admits of such interpretation. I am 
 ready and disposed to say to our Catholic fellow- 
 citizens : " You may come here and meet us on 
 the broad principles of civil and religious liberty, 
 but if you cannot meet us upon this common 
 ground, we do not ask you to come. It is yoxir 
 own choice, and if you cannot be content with 
 the general privileges, which you share here in 
 common with all, you have no right to coir plain. 
 Here are our public schools, they are free to all 
 the various denominations, Baptist, Methodist, 
 Episcopalian, Congregationalist, Trinitarian, Uni 
 tarian. They are free to all, Catholic and Protes 
 tant. We all send our children to these schools, we 
 all meet together in town meeting, and determine 
 how much money we shall raise for this great 
 purpose of education, thus common to all, and 
 that money is expended in schools in which the 
 peculiarities of no one sect are insisted upon or 
 interfered with." I wish all children to be edu 
 cated, not as members of religious sects, not as 
 belonging to one religious party or another, but to 
 come together on one common ground, as children 
 of the State, to be educated together in mutual 
 respect, forbearance, and good will, so far as differ 
 ences of religious opinion are concerned. Sir, our 
 common school system has been, and is now, con 
 ducted upon these liberal principles ; and, I say, 
 it is this school system that has done as much as 
 any other one cause, to determine the character 
 and condition of the people of Massachusetts. 
 
 Mr. WOOD. Will the gentleman allow me 
 to ask him what he would propose to do, suppose 
 any religious denomination refuse to send their 
 children to your schools ? 
 
 Mr. LOTHROP. I will answer the gentleman 
 by saying that if we establish our system of com 
 mon schools upon broad, liberal principles ; if we 
 open the door wide, and give all a fair and equal 
 chance to come, we may rest assured that the 
 
618 
 
 SECTARIAN SCHOOLS. 
 
 [70th day. 
 
 Friday,] 
 
 LOTHROP CADY FROTHINGHAM CHAPIN. 
 
 [July 29th. 
 
 great mass of the community will avail themselves 
 of the privilege ; and if any do not, the fault will 
 not be in the system, but in the narrowness and 
 bigotry of those who prefer that their children 
 should grow up in ignorance, unless they can 
 send them to a sectarian school. The community 
 will have done all that it can be asked to do. 
 
 Mr. CADY, of Monson. If I am rightly in 
 formed, the children of our Irish population are 
 obliged to attend our common schools. It is a 
 penal offence for them not to attend. 
 
 Mr. LOTHROP. I shall detain the Conven 
 tion but a few moments more. I cannot but 
 think this is a question of great importance ; and 
 our action upon it will have much influence upon 
 the future character of Massachusetts. Sir, the 
 subject of common schools has been a subject of 
 much difficulty in all countries in the world. 
 Where the attempt has been made to introduce 
 a system of public education, in all countries 
 where the attempt has failed, sectarianism, in 
 one form or another, has been the cause. Is 
 not sectarianism the very thing we are here try 
 ing to prevent, so far as our common schools are 
 concerned ? There is none of it now in these 
 schools ; and the only way in which you can 
 prevent its introduction and influence, is to adopt 
 the principle of the resolution it is proposed to 
 reconsider. It is only upon this principle that 
 we shall be able to conduct oxir common schools 
 successfully, keep them free from sectarianism, 
 and make them one of the great fountains of life 
 and strength, prosperity and power, to the people 
 of this Commonwealth. It is very well known 
 that there are broad general religious truths, great 
 fundamental religious ideas and principles, upon 
 which all can unite, and where these alone as is 
 the case in our common schools are recognized, 
 and impressed upon the minds of the young, there 
 will be, there can be, no sectarianism ; nothing of 
 such a character as that a Protestant or a Catholic, 
 or a person of any religion whatever, would be 
 unwilling to have his children attend the school. 
 If he regards the best interests of his child he will 
 send him to such a school. I maintain that no 
 Catholic, no Protestant, no person of any denom 
 ination, can go into any of our public schools and 
 say that there is anything taught there that he 
 should be unwilling that his child should learn ; 
 or that anything is done to change or interfere 
 with his religious opinions. 
 
 I hope the motion for reconsideration will not 
 prevail ; and that, as the matter has come up and 
 has been acted upon once, we shall abide by that 
 action, and adhere to the principle which is con 
 tained in the resolution. 
 
 Mr. FPvOTIIINGHAM, of Charlestown. I 
 
 have but one word to say in reference to this 
 matter. It seems to me, that when the gentle 
 man from Boston remarked that it had been 
 better that the subject had not been introduced 
 into this Convention, he yielded the whole point. 
 Now, Sir, as that gentleman has stated, the sub 
 ject was before the Committee of which I have 
 the honor to be a member, and there, Sir, I took 
 the ground against incorporating anything of this 
 sort into the Constitution, simply because it was 
 better to leave well enough alone ; simply be 
 cause it was unnecessary ; simply because our 
 common schools, as they are now, are open to all 
 to be enjoyed in common, as free as the air we 
 breathe ; and I say, so let them remain, because 
 the matter is governed by the unwritten law of 
 public opinion of Massachusetts, and as well 
 governed thus as it could be by any statute law 
 or constitutional law that could be enacted. 
 
 Now, it seems to me, that our Constitution, 
 when it provides that all denominations shall be 
 placed upon a footing of equality, provides for 
 each and every case of this kind that can arise ; 
 and I am in favor of the reconsideration and re 
 jection of this resolution, simply and solely on the 
 ground that it is putting unnecessary matter into 
 the Constitution. 
 
 Mr. CHAPIN, of Webster. I wish to say a 
 few words before recording my vote upon this 
 question, in order that I may stand right before 
 the community, and especially before posterity, 
 for I regard this as not particularly affecting the 
 present generation, but as prospective in its oper 
 ation. I believe the policy of this Common 
 wealth, from the beginning of our government up 
 to the present time, has been, to have but one 
 class of schools, and they have been called com 
 mon schools. They admit, and even require the 
 attendance of all children between certain ages, 
 in the Common wealth. They are common schools, 
 because the system of instruction is common to 
 them all, and they are not allowed to introduce 
 sectarianism, even under the present law ; and I 
 think the gentleman from Fitchburg will find it 
 difficult to establish, from the law as it now 
 stands, the proposition that sectarianism is per 
 mitted. Sir, a man is not allowed to go into our 
 common schools, and teach the doctrine of the 
 Congregationalists, the Baptists, or any other, as 
 a creed ; we are, therefore, adopting what is in 
 exact conformity with the past usage of the Com 
 monwealth. And I think it is perfectly right to 
 do so. It establishes permanently, for the time 
 to come, that which is approved by the universal 
 sentiment of Massachusetts. 
 
 It has been said, there is no occasion or neces 
 sity for the introduction of a provision of this 
 
70th day.] 
 
 SECTARIAN SCHOOLS. 
 
 619 
 
 Friday,] 
 
 CHAPIN COGSWELL CHANDLER. 
 
 [July 29th. 
 
 kind ; that no efforts have been made to establish 
 sectarian schools. But it is well known, that 
 efforts have been made in other parts of the 
 Union. New York and other States have been 
 afflicted with excitement on the subject. And I 
 think it would be well to consider whether, in 
 this State, we are not approaching the same con 
 dition, and whether it is not our best policy, to 
 guard against it in time. I can see a reason for in 
 corporating such a provision, in the very excitement 
 that prevails in this Convention to-day. There 
 is great sensitiveness manifested here, at the very 
 mention of the subject. But it is contended, that 
 the introduction of this provision will endanger 
 the adoption by the people, of all the other 
 amendments that we propose to make to the Con 
 stitution. I do not believe there is a man in 
 Massachusetts, save one, who has the power to 
 establish sectarianism ; I do not believe there is a 
 gentleman here, who thinks it right to do so, but 
 there are gentlemen here who believe that the 
 introduction of this provision will embarrass the 
 amended Constitution, if not defeat it. Well, 
 Sir, if we are embarrassed by the mere offering of 
 the proposition, J think we had better xmderstand 
 it now, before it is too late ; and, for this reason 
 above all others, I shall go for the proposition 
 embraced in the resolution, and against reconsid 
 eration. 
 
 Mr. COGSWELL, of Yarmouth. As one of 
 the Committee from whom the Report on this 
 subject was made, I desire to state one or two 
 considerations that induced the Committee to 
 report the resolution, the subject having been 
 referred to them by an order of the Convention. 
 It is well known, Sir, though it may not be 
 known to all the members of this Convention, 
 that the different religious denominations in this 
 State, and in other States, have had this subject 
 under consideration. The Presbyterian Church, 
 especially, which comprises a great portion of 
 Massachusetts, and of the Western and Middle 
 States, have agitated the question. The Commit 
 tee thought, that by putting an article of this kind 
 into the Constitution, it would put an end to all 
 controversy on the subject. It was not aimed at 
 any particular sect, but was intended to cut off 
 all sectional and denominational disputes on the 
 subject of the distribution of the money raised 
 for the support of schools, whether derived from 
 taxation or from the common school fund, with 
 the view of devoting it to the support of denom 
 inational schools. This was the object of the 
 resolution reported by the Committee. The great 
 object was, to preserve our common schools just 
 as they are now managed, for all coming time. 
 Massachusetts claims the honor of having been 
 
 the first to introduce the common school system, 
 and it has always been the practice to instruct all 
 alike, without regard to differences in religious 
 belief. The object is, to leave the system where 
 it now is, for all coming time ; to provide, that 
 money to be raised for schools, shall never be 
 devoted to the support of denominational schools. 
 We have now, in this State, a fund of more than 
 a million of dollars for common school purposes 
 it will soon be a million and a half. Well, 
 now, I think nothing would be more disastrous 
 than the application of this money to sectarian 
 uses. It would be striking a blow at our civil 
 institutions, to have this money divided among 
 different denominations of religion. These were 
 the reasons, and they were recognized by the 
 Convention, for when the proposition was report 
 ed, no objection was made to it. It was thought 
 to be highly necessary and proper, that such a 
 constitutional provision should be enacted. And 
 now, all on a sudden, gentlemen turn round and 
 oppose it. I hope that it will not be reconsidered, 
 but that it will be made a part of the amended 
 Constitution. We may then reasonably expect 
 that our schools will, in all coming time, continue 
 to be conducted precisely as they have been here 
 tofore. 
 
 Mr. CHANDLER, of Greenfield. When this, 
 motion to reconsider was made, I felt a great de 
 gree of indifference about it, because I consid 
 ered that all the provision that was necessary to 
 be made in relation to this subject had been made 
 in a previous resolution. It has, however, as 
 sumed an importance in my mind since, more par 
 ticularly, from the great misunderstanding which 
 appears to prevail respecting the object designed 
 to be accomplished by it. I had the honor to be 
 upon the Committee to whom was referred an or 
 der to provide for the raising of a fund for a par 
 ticular use, to be appropriated to the support and 
 maintenance of our common schools, as they now 
 exist, in accordance with the system which has 
 prevailed from the beginning. The Committee 
 agreed upon a resolution to be presented to tho 
 Convention, providing for the raising of such fund. 
 Well, if we consider the fund raised, what is to 
 be done with itr The order under which the 
 Committee was formed, made it imperative on 
 the Committee to raise a fund for common schools, 
 the great object being to secure the application of 
 such fund to the purpose contemplated, viz. : the 
 support and maintenance of our common schools, 
 as they are, and prevent its being frittered away, 
 or misapplied. Well, the question came up, is 
 there any danger to be apprehended from sectari 
 anism ? Is there danger that any efforts will be 
 made to divert any part of this fund to sectari- 
 
620 
 
 SECTARIAN SCHOOLS. 
 
 [70th day. 
 
 Friday,] 
 
 CHANDLER WARD BUTLER. 
 
 [July 29th. 
 
 an uses ? That appeared to be the idea. That 
 appeared to be the thing to be guarded against. 
 It seemed to be supposed that various denomi 
 nations in different parts of the country were 
 endeavoring to get possession of the school funds, 
 for the use of their own peculiar schools, not 
 only the Catholics, but others. We wished, 
 therefore, to secure the fund for the object for 
 which it was provided, that is, for common schools, 
 generally, without designating any particular sys 
 tem. Now, if we take the position that a part of 
 this fund may be given to one denomination, an 
 other may come in and claim the same privilege, 
 and another, and another, until the fund is com 
 pletely exhausted, and perverted from its original 
 design. We wish to avoid this. We do not 
 require the Constitution to forbid the bestowal of 
 money upon any college in the State, sectarian, 
 or otherwise, but the money thus appropriated 
 is not to come out of this fund. This is to be 
 regarded as sacred, and kept exclusively for the 
 particular use for which it was designed. This 
 is all, so far as I understand it, that was contem 
 plated by the Committee. If the Convention do 
 not approve of this principle, if they wish to 
 leave the door open, for the distribution of this 
 fund in the manner I have indicated, they ought 
 to go back and reconsider the vote by which they 
 accepted of the proposition which provides that 
 that fund shall be devoted to a particular and 
 specific use. 
 
 Mr. WARD, of Newton. Is an amendment 
 now in order ? 
 
 The PRESIDENT. An amendment is not 
 now in order. The question is on the motion to 
 reconsider. 
 
 Mr. WARD. I should like to have an oppor 
 tunity to move to strike out the two last lines of 
 the resolution, which it is moved to reconsider. 
 The money would then be appropriated accord 
 ing to law, and in no other way. 
 
 Mr. BUTLER, of Lowell. I have no wish, 
 Sir, to take up time, at this late hour, in debate, 
 and it was this reluctance to consume the time un- 
 aiecessarily, which induced me, when I addressed 
 you before, to confine myself to a very few words, 
 simply saying that I hoped this matter would be 
 reconsidered, not supposing that I should thereby 
 expose myself to the censure of the gentleman 
 from Cambridge, (Mr. Parker,) that I had pre 
 sumed to dictate to the Convention a course of 
 action, without assigning any reasons why that 
 course should be adopted. I have, thank God, 
 a -reason for the " faith that is in me," and I wish 
 to say, first, that I look upon this resolution as 
 the most sectarian resolution that can be brought 
 before a deliberative assembly. And if I cannot 
 
 convince gentlemen that it is so, I will give up 
 all pretension to a knowledge of the principles of 
 men s action from what they do. 
 
 Now for the history of this matter. An order 
 was introduced on the thirteenth of June and re 
 ferred to the Committee on the Encouragement of 
 Literature, of which my friend from Pittsfield, 
 (Mr. Briggs,) is chairman, and I am sorry he is 
 not here to help me against this sectarian attack 
 upon the resolve which that Committee reported. 
 The order instructed the Committee to inquire 
 into the expediency of so amending the Constitu 
 tion, that the school fund belonging to the Com 
 monwealth shall never be appropriated or applied 
 to the support of any sectarian schools, or schools 
 founded upon sectarian principles. 
 
 The Committee reported a resolve, which, is as 
 follows : 
 
 Resolved, That it is expedient so to amend the 
 Constitution as to provide that no public money, 
 in this Commonwealth, whether accruing from 
 funds, or raised by taxation, shall ever be appro 
 priated for the support of bectarian or denomina 
 tional schools. 
 
 That covered all schools, Sir, from the humble 
 village school up to Harvard University. It pre 
 cluded the appropriation of money to the support 
 of sectarian or denominational schools, of what 
 ever grade, or class, or description. It precluded 
 the appropriation of money to be expended for the 
 benefit of Harvard University, because that is a 
 sectarian school. And so of all other colleges. 
 That is what was reported by the Committee. 
 Then, without a word of explanation, comes this 
 amendment from the representative of Harvard 
 College the guardian of the interests of that in 
 stitution in this Convention ; drawn with all the 
 skill of a lawyer, and a very good lawyer too : 
 
 That all moneys raised by taxation, in the 
 towns and cities, lor the support of public schools, 
 and all moneys which may be appropriated by the 
 State for the support of common schools, shall be 
 applied to and expended in no other schools than 
 those which are conducted according to law r , under 
 the order and superintendence of the authorities 
 of the town or city in which the money is to be 
 expended ; and such moneys shall never be ap 
 propriated to any religious sect ibr the mainte 
 nance, exclusively, of its own schools. 
 
 Leaving it open for money to be appropri 
 ated and distributed broadcast, if you please, 
 hither and yon to Harvard, to Williams, and to 
 Amherst College, or any other institution of 
 learning, whether sectarian or otherwise. A 
 carefully and technically worded resolution. 
 What do we want with such a provision ? In 
 the first place, the school shall be kept according 
 
70th day.] 
 
 SECTARIAN SCHOOLS. 
 
 621 
 
 Friday,] 
 
 BUTLER LOTHROP JENKS. 
 
 [July 29th. 
 
 to law. That is the first item. In the name of 
 all that is good, why not put into the Constitution 
 that when it rains it shall rain ? That is all we 
 have got here until we come to the sting in the 
 tail, which is this : " shall never be appropriated 
 to any religious sect for the maintenance, exclu 
 sively, of its own schools." 
 
 Now, one word in reference to the remarks of 
 the gentleman from Boston, (Mr. Lothrop,) whom. 
 I commend for his morality. He says he wants 
 every Catholic child to go to our common schools ; 
 and the gentleman from Fitchburg, (Mr. Wood,) 
 says they may be compelled to go. 
 
 Mr. LOTHROP. I am quite confident, Sir, 
 that I could not have used those words that I 
 wanted every Catholic child to go to our common 
 schools. I said I wanted all our Irish population 
 to send their children to our common schools. 
 
 Mr. BUTLER. I am bound to take the gen 
 tleman s recantation ; but, Sir, I am not mistaken. 
 The gentleman said and the expression was 
 accompanied with a very emphatic waive of the 
 hand I want all Catholic children to go to our 
 schools. 
 
 Mr. LOTHROP. I could not have said that. 
 
 Mr. BUTLER. My recollection is perfect, Sir, 
 as was the elocution of the gentleman. " I want 
 all Catholic children," says the gentleman, " to 
 go to our Protestant schools." Those are the 
 words. I called the attention of several gentle 
 men to them at the time they were uttered. And 
 I appeal to the reporter s notes whether I am not 
 correct. Sir, I was educated in our common 
 schools 
 
 Mr. LOTHROP. I rise to a question of order. 
 I understood the gentleman to accede to my re 
 cantation, as he chooses to call it. If he accedes to 
 that, I maintain he has no right to continue to 
 argue as if I had used the language which he 
 attributed to me. I maintain that I did not use 
 the expression, that I wished Catholics to go to 
 Protestants schools. I know myself too well to 
 believe that I could have said any such thing. 
 And, if the gentleman insists on fastening it upon 
 me, I must appeal to the House. If the gentle 
 man accepts my explanation, he must not go on 
 arguing as if I had used that language. 
 
 Mr. BUTLER. Again, I say, I yield to the 
 gentleman s repudiation of his language, if he 
 says he did not mean it ; but if he says he did 
 not say it, I repeat, that he did say it. I thought 
 it was said in heat, and without due considera 
 tion. 
 
 Mr. JENKS, of Boston. I sat much nearer to 
 the gentleman from Boston (Mr. Lothrop) than 
 the gentleman from Lowell did, and I know that 
 he did not make use of the word Protestant. 
 
 The PRESIDENT. This is not strictly a ques 
 tion of order. It is a mere difference of opinion 
 as to the language used by the gentleman from 
 Boston. 
 
 Mr. BUTLER. I Mall not dwell upon it, Sir. 
 I have stated the language that was used by the 
 gentleman ; I now pass from that. I was pro 
 ceeding to say, that I was reared in Protestant 
 schools where some gentlemen say there is no 
 sectarianism. The first Class Book that was put 
 into my hands was one prepared by an eminent 
 Unitarian clergyman ; and in that I read senti 
 ments calculated to instil into the mind a detesta 
 tion of Catholics. I imbibed such detestation, 
 and when I first saw a Catholic, I thought I was 
 looking upon a monster, and almost expected to 
 see the cloven foot. Yet, gentlemen will say such 
 teaching is not sectarian. 
 
 My friend on the left, (Mr. Chandler,) and 
 what he says commends itself to me on account 
 of his mature years and ripened judgment, says 
 he does not want any sectarianism introduced 
 into our schools, on one side, or the other. He 
 says the system works admirably ; that it is an 
 admirable common school system. Why tinker 
 with it then ? Why meddle with it at all, if it 
 works so well, and is so admirable ? Why, my 
 friend says, because in other States there is trouble. 
 Let those States take care of themselves. Why 
 should we foresee trouble, and create it by an at 
 tempted resistance to it. The moment you send 
 out this declaration, it will enter into all your 
 elections everywhere, as an element of agitation. 
 If you strike the first blow, the fight is begun. 
 Let him that is without sin among you cast the 
 first stone. We teach Protestantism, and believe 
 it to be right, and we glory in that belief. But 
 is that any reason why we should force it upon 
 otir neighbors ? Why we should say we will tax 
 you for the teaching of our Protestantism ? Is 
 it any less proper for the Universalists, or Bap 
 tists to say, there is no sectarian issue in their 
 teaching. Those who have religious creeds dif 
 fering from our own, worship the same God, bow 
 before the same altar, read from the same Bible ; 
 but differ in its interpretation. Now, I ask gen 
 tlemen, if they are ready to introduce such a con 
 troversy into the politics of this State ? For one, 
 I wash my hands of it. I want our school sys 
 tem to remain as it is. 
 
 It is said that a difficulty has arisen in other 
 States. Grant it as much as you please. Why 
 should we precipitate it here ? Why should we 
 be thus tormented, before our time r If it must 
 come, the legislature will meet it. I want the 
 reconsideration for the reason given by my friend 
 from Newton, (Mr. Ward,) in order to strike out 
 
622 
 
 SECTARIAN SCHOOLS. 
 
 [70th day. 
 
 Friday,] 
 
 BALL WHITNEY. 
 
 [July 29th. 
 
 the last two lines of the resolution. I will then 
 vote for it, although it will be something like the 
 boy s brandy and water with the brandy left out. 
 [A laugh.] It will then be : 
 
 Resolved, That all moneys, &c., for the support 
 of common schools shall be applied to and ex 
 pended in no other schools than those which are 
 conducted according to law." 
 
 Well, how are you to apply it in any other 
 way ? All I have to say of it is, Parturient monies 
 et nascitur ridiculus mus. 
 
 Mr. BALL, of Upton. If I wanted a text 
 upon which to preach, I should have it in the 
 proposition before you. The resolution passed 
 without a word being said about it. Gentlemen 
 were all perfectly well satisfied that it contained 
 the principle which they were all in favor of ; 
 and then all at once, just at the close of the ses 
 sion, they start up and say that the great mass of 
 the citizens of Massachusetts are arrayed against 
 it, and that they will vote down the new Consti 
 tution if this proposition is retained in it. And in 
 the name of all that is good and sacred, let us 
 say they O ! let us withdraw it, that our 
 amended Constitution may not be lost. The 
 gentleman from Lowell, (Mr. Butler,) has made 
 a strong argument against withdrawing the pro 
 vision. He says that when he went to the public 
 schools he was taught from sectarian books that 
 the books used were clearly and decidedly secta 
 rian. If this be so, it is highly necessary that 
 measures should be taken to free those schools 
 from sectarianism. I am ready, on his own show 
 ing, to vote against the reconsideration. Is not 
 this new movement like something we have had 
 before in this State, one of the compromises made 
 for the purpose of damning to eternal infamy a 
 party that is dreaded ? Will gentlemen withdraw 
 from the position they took, because they fear the 
 Catholics ? Sir, I am known to all the Catholics of 
 my town, and I will venture to say, that in voting 
 to retain this provision, I shall not be regarded by 
 them as being sectarian. If our schools have any 
 thing that is sectarian, let us remove it, let us 
 correct the evil as speedily as possible. If we 
 have done wrong in the past, is it any reason 
 why we should continue to do wrong ? If we 
 have sectarian books in our schools now, is that 
 a reason why we should continue to use such ? 
 No, Sir ; if we would all meet upon common 
 ground, let us incorporate this provision in the 
 Constitution, and keep it there. A compromise 
 to be made at this last moment ! A compromise, 
 for what ? For fear the people of Massachusetts 
 should become sectarian ? For fear of the Catho 
 lics ? Great God ! We have nothing to fear 
 from the Catholics. They are more our friends 
 
 than our enemies. Open your doors wide to all, 
 and banish sectarianism from your schools, and 
 Catholics will become Protestants through the 
 influence of these schools. For these reasons, I 
 trust the provision will be retained. I trust the 
 Convention is not ready to withdraw from the 
 position it has taken, a position that was fair, and 
 honest, and proper at the time it was taken, and 
 so regarded by every one. 
 
 Mr. WHITNEY, of Conway. It seems to 
 me, Sir, that this debate must satisfy every gentle 
 man, that in placing such an amendment as this 
 in the Constitution, we are treading upon delicate 
 ground. It appears to me that when we look 
 around over the good old Commonwealth of 
 Massachusetts, and see how harmoniously and 
 successfully our common school system is ope 
 rating, and when we consider that no attempt has 
 ever been made to introduce sectarianism, we 
 cannot fail to be convinced that the introduction 
 of such a provision as this into the Constitution, 
 must be productive of injurious consequences, 
 and that it would be far better to leave the article 
 in relation to our common schools as it now 
 stands, and leave all religious sects to stand upon 
 the same footing, without any subordination of 
 one to another, and without any preference of one 
 over another in the matter of education in the 
 schools of the State. It seems to me it would be 
 far better, as has been well said by the gentleman 
 from Charlestown, to let well enough alone. 
 The introduction of this provision into the Con 
 stitution, I submit, may give rise to agitations 
 which will seriously disturb your common schools 
 throughout Massachusetts. How is it in jour 
 little towns now ? Your school committees are, 
 to a great extent, composed of the clergymen of 
 various religious sects, Baptists, Presbyterians, 
 and even Catholics, and no complaint that I am 
 aware of is made. Well, now, insert such a pro 
 vision ; and may it not be said by persons disposed 
 to seek objections, you are making an unequal 
 appropriation or supervision so far as sects are 
 concerned, of your school fund ? You are en 
 deavoring to prevent the appropriation of the 
 fund to a school that is sectarian, and yet you 
 have upon your school committees men who are 
 sectarian. How are you going to make answer 
 under these constitutional provisions ? In my 
 opinion, you will produce much trouble and con 
 fusion in your common schools throughout the 
 Commonwealth. And I can see 110 reason to 
 apprehend that the money to be appropriated for 
 common school purposes from any quarter, is to 
 be applied for sectarian purposes. The public 
 sentiment is more and more doing away with 
 sectarian bias, as connected with public schools. 
 
70th day.] 
 
 SECTARIAN SCHOOLS. 
 
 623 
 
 Friday,] 
 
 WHITNEY CROWNINSHIELD THOMAS PARKER. 
 
 [July 29th. 
 
 Why agitate this question? It will only be 
 bringing about the very result which we wish to 
 avoid. I think, as I have said, that we are well 
 enough at present, and that we had better let well 
 enough alone. It will be impossible to find men 
 who are outside or beyond the power of sectarian 
 bias, to some extent, for your school committees ; 
 but public sentiment is such, that you will find 
 no improper application of sectarian influences in 
 your common schools. 
 
 It has been remarked that the Committee would 
 not have introduced this question, but inasmuch 
 as it had been introduced, it was a reason why 
 we should go farther on. Why, Sir, if it was 
 unwise to introduce it here, it certainly would be 
 still more unwise to incorporate it into your Con 
 stitution. As the gentleman from Lowell, (Mr. 
 Butler,) remarked, why declare in your Consti 
 tution a universally acknowledged principle. I see 
 no reason except for the purpose of exciting agi 
 tation upon this question ; why not then recon 
 sider this motion ? Agitation will be most likely 
 to result from a proposition of this character, and 
 the effect of such agitation, would, in the end, be 
 most disastrous. I hope the motion to reconsider 
 will prevail. 
 
 Mr. CROWNINSIIIELD, of Boston. I shall 
 not detain the Convention many minutes. I have 
 only this to say, that I can assure gentlemen, their 
 Catholic friends are not so weak as to be caught 
 by such chaff as this. Sir, as I understand this 
 question, the provision has gone through the usual 
 stages, and has been finally passed, and now gen 
 tlemen wake up and move a reconsideration, be 
 cause they are afraid of the effect it may have 
 upon the Catholic population of the Common 
 wealth. Sir, gentlemen have sat in their seats 
 while this provision passed through all its stages 
 to its final passage, and no voice was raised 
 against it. And now, on the very last day, or 
 last but one of the session, lo ! a violent indig 
 nation is gotten up against the resolution, and it 
 is insisted that it must be expunged. Now, Sir, 
 I happen to know something about the feeling of 
 the Catholics in regard to this Convention, and I 
 tell gentlemen the Catholics are not to be led 
 away by any such proceeding as this. The Cath 
 olics understand it. They know the object of it, 
 and they know the purpose for which the reso 
 lution was originally passed. They know, too, 
 that the great question of representation has been 
 passed so as to disfranchise them. And if gen 
 tlemen suppose that such a movement as this is 
 to conciliate them, let me tell them they are mis 
 taken. 
 
 Mr. THOMAS, of Weymouth, moved the pre 
 vious question. 
 
 Mr. PARKER, of Cambridge. I hops the 
 gentleman from Weymouth will withdraw the 
 motion for the previous question, to enable me 
 to make some reply, not only to the arguments 
 which have been offered, but to the personal at 
 tack which has been made upon me by the gen 
 tleman I mean by the member from Lowell. 
 
 Mr. THOMAS, of Weymouth. If the gentle 
 man will renew it, at the close of his remarks, I 
 will consent. 
 
 Mr. PARKER. I will do so. 
 
 Mr. BATES, of Plymouth. I believe the gen 
 tleman from Cambridge has already spoken upon 
 this question. 
 
 Mr. PARKER. I have, Sir, and have the 
 floor again, by the recognition of the President. 
 
 Mr. BATES. I believe the gentleman has 
 spoken his fifteen minutes. 
 
 Mr. PARKER. The gentleman is mistaken. 
 I did not occupy over half that time. 
 
 The PRESIDENT. The gentleman from Cam 
 bridge has spoken once, but he has not occupied 
 his full time. 
 
 Mr. PARKER. Mr. President : I have known 
 something of the gentleman of the member from 
 Lowell for some time, and I have heard consid 
 erable of him, first and last, and perhaps I ought 
 not to be surprised at anything coming from him, 
 and yet I am. I am truly surprised at the per 
 sonal attack which he has allowed himself to 
 make upon me, upon the floor of the Convention 
 to-day, as I had said nothing to provoke such an 
 attack from that gentleman, or rather, from that 
 member. It is true, I had some agency in intro 
 ducing this resolution a resolution which has 
 passed without a division so unanimous was the 
 feeling in favor of it. A motion for reconsidera 
 tion was made, and the gentleman the member 
 from Lowell Sir, I have been in the habit of 
 calling him the gentleman from Lowell, and will 
 continue so to do took the floor, and expressed 
 his personal wish, without reason or argument to 
 support it, that this matter should be reconsid 
 ered, as if his personal wish was sufficient to de 
 termine the action of the Convention, and induce 
 them to undo all that they had done ; and upon 
 this it seemed as if the question was about to be 
 taken. It was in reference to that; because I 
 had no argument to answer, and because it was 
 for those who favored the reconsideration, to offer 
 some reasons why the action of the Convention 
 should be changed, that I said, in substance, that 
 if that gentleman s mere wishes were to deter 
 mine the action of the Convention, it was w r ell 
 that it should be understood. I supposed there 
 was some reason that might be offered. We have 
 now been favored with a reason. And I desire 
 
624 
 
 SECTARIAN SCHOOLS. 
 
 [70th day. 
 
 Friday,] 
 
 PARKER WOOD. 
 
 [July 29th, 
 
 to make a few remarks in reply ; but I must be 
 permitted again to say, I am astonished that the 
 gentleman from Lowell should have forgotten all 
 courtesy, and have been guilty of the indecorum 
 of speaking of me as the representative of Har 
 vard University. Sir, it was an indecorum that 
 I should hardly have expected, even from him. 
 Sir, I am not the representative of Harvard Col 
 lege. I have no such relations with that institu 
 tion as will justify any one in speaking of me as 
 its representative. Nor have I used an argument 
 that would authorize anybody to speak of me in 
 that way. It is true, that I am connected with 
 one of the professioiial schools in that institution ; 
 but so far as that is concerned, the gentleman 
 might as well be characterized as a representative 
 cf a law office in the city of Lowell. 
 
 The PRESIDENT. The Chair desires to say 
 that he did not understand the gentleman from 
 Lowell as speaking of the gentleman from Cam 
 bridge as the representative of Harvard College. 
 
 Mr. P ARKEIl. Sir, he spoke of me as repre 
 senting Harvard College, and he imputed motives 
 with reference to that institution as the governing 
 motives with me in offering this resolution, and 
 as the inducement for its introduction. That was 
 the burden of his speech that it was clearly to 
 be seen what were the influences which induced 
 the gentleman from Cambridge to act in this mat 
 ter. Now, I trust I need not disclaim, before the 
 members of this Convention, any such motives. 
 I trust my conduct on this floor has commended 
 me so far to gentlemen here, that they do not 
 need my disclaimer of being actuated by any other 
 motives than those of a member desirous of doing 
 his duty. But enough of that. The gentleman 
 from Walpole (Mr. Bird) suggested that there 
 had been no reason oft ered why this measure 
 should be adopted by the Convention. Sir, as I 
 said before, I supposed it was for the friends of 
 the reconsideration to show why the action of the 
 Convention should be changed. I was ready, 
 however, with reasons, and have been attempting 
 to gain the floor for the purpose of stating them ; 
 but the rules of the Convention gave it to others, 
 because I had spoken once. 
 
 Sir, we have heard reasons assigned from 
 various quarters, but an additional fact or two 
 may be stated. One gentleman, a member, has " 
 informed me, since the commencement of the 
 session, that his parish clergyman, an Episco 
 palian, a very Avorthy man, declared to him that 
 they must have parish schools. Another gentle 
 man in the Convention has stated that he heard a 
 very worthy Congregationalist clergyman declare 
 that it was necessary for his denomination to have 
 such schools. Sir, it is not the Catholics alone 
 
 who are looking to the school fund as a means of 
 sustaining their peculiar tenets. Nor does this 
 resolution, in its terms, have any reference to 
 them at all ; but they have been introduced, and 
 the statements which have been made only add 
 another to the evidences to show that it is neces 
 sary that something should be done here. Sir, 
 nothing more is necessary to show the necessity 
 for a constitutional provision, than to refer to the 
 arguments of the gentleman from Fitchburg, and 
 the gentleman from Conway, and others. The 
 gentleman for Wilbraham says he does not want 
 to put a firebrand into the town meetings. Sir, 
 the object of this resolution is to extinguish 
 the firebrand. The gentleman from Fitchburg 
 admits that there is no law for it, but he proposes 
 to appropriate a part of this money to sectarian 
 purposes. He avows it here. 
 
 Mr. WOOD. No, Sir. The gentleman is mis 
 taken. 
 
 Mr. PARKER. Not sectarian ; but he pro 
 poses to give the Catholics their share. 
 
 Mr. WOOD. For the purposes of education. 
 Mr. PARKER. Yes; for the purposes of 
 education, according to their peculiar notions. 
 Now, that very circumstance, and the excitement 
 which is found to exist upon this subject in this 
 Convention, shows conclusively why we should 
 act upon it, and extinguish the firebrand, so that 
 it shall not be possible to rekindle it and make it 
 the means of a conflagration which may destroy 
 your common schools. They are in danger, un 
 doubtedly. 
 
 The gentleman for Wilbraham finds it difficult 
 to understand the resolution. He cannot under 
 stand the meaning of the word " sect." Sir, that 
 gentleman does not ordinarily find any difficulty 
 in ascertaining the meaning of anything which he 
 wishes to understand. But he can ask for defi 
 nitions when a proposition docs not suit him. It 
 was but the other day that he wanted a definition 
 of the word " blasphemy," and when he had got 
 that, he wanted a definition of " contumeliously ; " 
 and now he wants a definition of the word "sect." 
 Sir, if the gentleman cannot understand it, let him 
 put it to a jury as a part of the law and the fact, 
 and it will readily be settled for him. [A laugh.] 
 Sir, the reasons that are given for the recon 
 sideration, are altogether contradictory. 
 
 One gentleman is for doing nothing, because, 
 he says, it is altogether unnecessary ; because 
 there is no agitation, and will be none. Another 
 is opposed to the resolution because it will cause 
 a serious agitation ; because the very mention of 
 it here produces excitement. Well, Sir, if this 
 subject is to be a source of agitation in case we 
 act upon it, will it be less a source of agitation if 
 
70th day.] 
 
 SECTARIAN SCHOOLS. 
 
 625 
 
 Friday,] 
 
 PARKER BUTLER. 
 
 [July 29th. 
 
 you omit this provision from the Constitution ? I 
 appeal to gentlemen to judge for themselves. It 
 requires no spirit of prophecy to say, that from 
 one quarter or another I make no invidious dis 
 tinction the objection will come, that your com 
 mon schools have not sufficient of the religious 
 element in them, or that other sects are endeavor 
 ing to infuse into the minds of the scholars the 
 doctrines and tenets of their particular faith ; and 
 the consequence may be a division of the school 
 moneys, and the subversion of our glorious sys 
 tem for the education of all through the agency 
 of free and common schools, because you have 
 not a constitutional provision to prevent agitation 
 on the subject. 
 
 Sir, a word more respecting the origin of this 
 resolution. The subject came up in the ordinary 
 action of the Convention, through a motion to 
 refer it, and the Report of a Committee. Prior to 
 that Report, and before I was aware that any mo 
 tion had been made, I had drawn a resolution 
 with a view of offering it. When objection was 
 made to the resolution reported by the Commit 
 tee, I showed the one I had drawn to the gentle 
 man from Natick, (Mr. Wilson,) who, it will be 
 recollected, expressed his approbation of it to the 
 Convention, and his desire that I would offer it, 
 which, however, I could not do at that time, be 
 cause an amendment was then pending ; but it 
 was read for the information of the Convention. 
 Before there was any opportunity to move it, the 
 Report and resolution of the Committee were laid 
 upon the table. An attempt, by the chairman of 
 the Committee, (Mr. Briggs,) to have the Report 
 taken up, failed ; after which, having slightly 
 altered the phraseology of the resolution which 
 I had read, and at the suggestion of a gentle 
 man from Boston, (Mr. Blagden,) added the last 
 clause all which, in my view, in no way changes 
 its effect I introduced it, and it was printed. I 
 have not time to state the farther history of it, 
 nor is it necessary. It has already been stated. 
 
 The gentleman from Lowell says the proposi 
 tion is sectarian in its purposes. Let him read it, 
 and see if it is or not. 
 
 [Here the President s hammer announced the 
 expiration of the time allotted for a speech.] 
 
 Mr. PARKER. I renew the motion for the 
 previous question. 
 
 Mr. BUTLER, of Lowell. Will the gentle 
 man allow me to say a word by way of personal 
 explanation. 
 
 Mr. PARKER. I cannot withdraw the mo 
 tion, because I promised the gentleman from 
 Weymouth that I would renew it at the close of 
 my remarks. 
 
 Mr. BUTLER. I shall be obliged, then, to 
 
 ask permission of the Convention to say a few 
 words. 
 
 Mr. THOMAS, of Weymouth. I consent that 
 the motion for the previous question shall be 
 withdrawn. 
 
 Mr. PARKER. Then I withdraw it. 
 
 Mr. BUTLER. I shall not trespass long upon 
 the time of the Convention. Though I may have 
 felt it to be a duty to speak frequently, yet it can 
 not be said that I have troubled the Convention 
 with long speeches. 
 
 The gentleman from Cambridge, Sir, seems to 
 have worked himself into a considerable degree 
 of indignation upon this question, because he 
 seemed to think that I had commented too freely 
 upon his personal action in this matter. I refer 
 red to it so far as to say that the resolution had 
 been drawn with all the skill of an astute lawyer, 
 in a manner to do no discredit to the legal adviser 
 of the institution with which he is c ^nnected at 
 Cambridge. And I now call the attention of the 
 Convention to the fact, that, although he stood 
 upon the floor for fifteen minutes, he has not dis 
 claimed the fact, and has not disproved a word 
 that I have said. He has not attempted to show 
 that his resolution is intended to prevent sec 
 tarianism. How, then, does it appear that I have 
 imputed wrong motives to the gentleman ? I say, 
 again, that, in my judgment, this is a Harvard 
 College resolution. 
 
 The PRESIDENT. The Chair is of the 
 opinion that it is not in order for the gentleman 
 to characterize the resolution in that manner. 
 
 Mr. PARKER. I rise for the purpose of 
 making a disclaimer. 
 
 The PRESIDENT. Does the gentleman from 
 Lowell yield the floor ? 
 
 Mr. BUTLER. The gentleman refused to 
 withdraw the previous question to permit me to 
 speak, and I do not feel at liberty now to yield 
 my right. 
 
 Mr. PARKER. If a disclaimer is necessary, I 
 desire to say, that so far as I recollect, I never ex 
 changed a word with any one connected with 
 Harvard College, on the subject of the resolution 
 which I introduced, except a student in the Law 
 School, for a moment, who spoke of the impor 
 tance of the subject, and my associate professor in 
 that department, to whom I believe I mentioned 
 that I intended to introduce one. No suggestion 
 was made to me respecting my introducing, or 
 supporting anything of the kind. I acted solely 
 upon my own personal view of the matter, and 
 Harvard College, or the interests of Harvard Col 
 lege, were not in my thoughts in connection with 
 it. 
 
 The PRESIDENT. The Chair desires to say 
 
626 
 
 SECTARIAN SCHOOLS, &c. 
 
 [70th day. 
 
 Friday,] 
 
 BUTLER WHITE HALLETT WILSON DANA. 
 
 [July 29th. 
 
 in regard to the interpretation to be given to the 
 resolution, gentlemen may put such construction 
 upon it as they please, but they are not at liberty 
 to arraign the motives of the mover. 
 
 Mr. BUTLER. I never arraign the motives of 
 any man without cause. 
 
 Now, Sir, a word in reference to the gentleman 
 from Boston, (Mr. Crowninshield,) who has let 
 the cat out of the bag completely. He says if 
 gentlemen expect to get Catholic votes by such a 
 movement as this, they are mistaken. Out of the 
 abundance of the heart the mouth speaketh. He 
 says, if you think to save the Constitution in this 
 way you will be disappointed, that the Catholics 
 will be against you nevertheless. The resolution 
 was characterized by the gentleman as an intended 
 attack on the Catholic population, and, says he, 
 they are not to be deceived by such a bait as this. 
 Now it is very evident what is at the bottom of 
 all this, when we hear gentlemen threatening to 
 procure votes against the Constitution. Let gen 
 tlemen not misunderstand its significance. 
 
 Mr. PERKINS, of Maiden, moved the previous 
 question. 
 
 Mr. WHITE, of Quincy. I hope the previous 
 question will not be sustained. The gentleman 
 from Boston has made remarks concerning the 
 reconsideration, which, it seems to me, ought to 
 be replied to and corrected. I made the motion 
 to reconsider, and should like to have an oppor 
 tunity to explain the circumstances which led 
 me to make that motion. 
 
 The previous question was seconded, and the 
 main question ordered to be now put. 
 
 The question being on the motion to reconsider, 
 a division was called for. 
 
 Mr. HALLETT, for Wilbraham, demanded the 
 yeas and nays. 
 
 The PRESIDENT. The yeas and nays have 
 been refused. 
 
 Mr. HALLETT. Are we not entitled to have 
 the yeas and nays as a verification of the vote ? 
 
 The PRESIDENT. The motion for the yeas 
 and nays having been rejected, it is not compe 
 tent to renew the same motion. 
 
 Mr. HALLETT. I rise to a point of order. I 
 understand the Chair to say that the yeas and 
 nays have, at some stage of this question, been 
 called, and have been refused. 
 
 The PRESIDENT. Such is the case. 
 
 Mr. HALLETT. According to a former rul 
 ing of the Chair, as I understand, there are two 
 purposes to which the yeas and nays apply. One 
 is, to ascertain the sentiment of the House upon a 
 given question, and the other is, as a verification 
 of the vote upon a question. The question has 
 now been put upon the motion to reconsider. 
 
 While the House was dividing, and before the 
 President declared what the vote was, I rose and 
 asked for the yeas and nays as a verification of 
 the vote. The Convention certainly have this 
 right. It is an entirely distinct purpose from that 
 for which they were originally called. I ask if 
 such has not been the decision of the Chair ? 
 
 The PRESIDENT. The Chair has made no 
 such decision. There is but one purpose, that is, 
 to determine the result. The difficulty is, the 
 yeas and nays have been moved and refused. 
 
 Mr. HALLETT. If the Chair holds it is not 
 in order to call for the yeas and nays at this time, 
 it is a very different ruling from that which the 
 Chair has made on a former occasion. 
 
 The PRESIDENT. The Chair has never ruled 
 as the gentleman states. 
 
 Mr. BUTLER. I move a reconsideration of 
 the vote by which the yeas and nays were refused. 
 
 The PRESIDENT. It is too late for such a 
 motion. 
 
 The question was then taken on the motion to 
 reconsider the vote by which the resolve on the 
 subject of sectarian schools was passed, and upon 
 a division, there were ayes, 87 ; noes, 183. 
 
 So the motion to reconsider did not prevail. 
 
 Imprisonment for Debt. 
 
 The PRESIDENT. The next matter on the 
 Orders of the Day is the motion to reconsider the 
 vote by which the resolve on the subject of im 
 prisonment for debt was passed. 
 
 Mr. BUTLER, of Lowell. I wish to make an 
 inquiry. I believe this resolve was never before 
 the Committee of the Whole. 
 
 Mr. WILSON, of Natick. I understand there 
 is a Report made by the Judiciary Committee, on 
 a very important matter, which the Committee 
 on Revision need to-night. I therefore move 
 that the Orders of the Day be laid upon the table. 
 
 The motion was agreed to. 
 
 Tenure of Office. 
 
 On motion of Mr. DANA, for Manchester, 
 the Convention took up for consideration the 
 Report from the Committee on the Judiciary, 
 respecting the tenure of office. 
 
 The Report was read, as follows : 
 
 COMMONWEALTH OF MASSACHUSETTS. 
 
 In Convention, July 28, 1853. 
 The Committee on the Judiciary, to whom was 
 referred the order of July 26th, 1853, have con 
 sidered the same, and report the accompanying 
 
 resolves. 
 
 MARCUS MORTON, Chairman. 
 
 1. Resolved, That persons holding office by 
 
70th day.] 
 
 TENURE OF OFFICE. 
 
 627 
 
 Friday,] 
 
 DANA CHAPIN TRAIN. 
 
 [July 29th. 
 
 election or appointment under the present Con 
 stitution, shall continue to discharge the duties 
 thereof until their term of office shall expire, or 
 officers authorized to perform their duties, or any 
 part thereof, shall be elected and qualified, pur 
 suant to the provisions of this amended Constitu 
 tion ; when all powers not reserved to them by 
 the provisions of this amended Constitution shall 
 cease : provided, however, that Justices of the 
 Peace, Justices of the Peace and of the Quorum, 
 and Commissioners of Insolvency, shall be author 
 ized to finish and complete all proceedings pend 
 ing before them at the time when their powers 
 and duties shall cease, or be altered as aforesaid. 
 
 2. Resolved, That the legislature shall provide, 
 from time to time, the mode in which commis 
 sions or certificates of election shall be issued to all 
 officers elected pursuant to the Constitution, ex 
 cept in case where provison shall be made therein. 
 
 3. Resolved, That the Governor, by and with 
 the consent of the Council, may at any time for 
 cause shown, remove from office, Clerks of Courts, 
 Commissioners of Insolvency, Judges and Regis 
 ters of Probate, District- Attorneys, Registers of 
 Deeds, County Treasurers, County Commission 
 ers, Sheriffs, Trial Justices, and Justices of Police 
 Courts : provided, however, a copy of the charges 
 upon which said removal is made, shall be fur 
 nished to the party to be removed, and a reason 
 able opportunity given him for defence. 
 
 4. Resolved, That whenever a vacancy shall 
 occur in any elective office, provided for in this 
 Constitution, except that of Governor, Lieuten 
 ant- Governor, Councillor, Senator, member of 
 the House of Representatives, and Town and 
 City officers, the Governor for the time being, by 
 and with the advice and consent of the Council, 
 may appoint some suitable person to fill such 
 vacancy, until the next annual election, when the 
 same shall be filled by a new election, in the man 
 ner to be provided by law : provided, however, 
 Trial Justices shall not be deemed to be town offi 
 cers for this purpose. 
 
 5. Resolved, That all elections provided to be 
 had under this amended Constitution, shall, un 
 less otherwise provided, be first held on the Tues 
 day next after the first Monday of November, 
 A. D. 1854. 
 
 Mr. DANA moved to amend the third resolu 
 tion, by striking out the proviso. 
 
 Mr. DANA. I wish to say, Sir, that I have 
 submitted this amendment to two gentlemen of 
 of the Judiciary Committee, and they approved 
 of it. I have not been able to find the other 
 members of the Committee, or I would have con 
 sulted them also. I will simply state to the 
 house the purport of the proposition. It provides 
 that clerks of courts, sheriffs, &c., shall be elected 
 for three years, the governor having the power~ of 
 removal, "provided, that a copy of the charges 
 upon which said removal is made, shall be fur 
 nished to the party to be removed, and a reason 
 able opportunity given him for defence." 
 
 Now, it may happen that a sheriff may fall 
 
 into habits of intemperance ; or in times of civil 
 commotion he may have gone over to the enemy ; 
 he may be guilty of treason ; yet nobody can 
 touch him. The clerk of a court may become 
 involved in some fraudulent transaction, or may 
 commit a misdemeanor ; he may become treach 
 erous, and refuse to deliver up papers. Now, I 
 want to provide that the governor shall have 
 power to remove these officers for causes such 
 as these. The difficulty, as the matter now 
 stands, would be, that they could not be removed 
 without a hearing, an examination of the 
 charges against them, and such formalities as 
 might not be consistent with the public exigen 
 cies. It is simply provided in this amendment 
 that the governor shall have the power, if the 
 exigencies of the case require it, to suspend these 
 officers, and make a temporary appointment to 
 hold only until an examination can be had, and 
 the charges verified or disproved. That is the 
 whole of it. The governor must, in all cases, enter 
 the cause of removal upon the record, and the 
 party must be heard, and he cannot be removed 
 without the consent of the council. And it must 
 be remembered they are all elective officers. 
 There is no danger of the governor and council 
 abusing the power. But it is certain that such a 
 power should exist somewhere, especially in the 
 case of sheriffs. 
 
 Mr. CHAPIN, of Worcester. I rise to say 
 that I am entirely satisfied with the amendment 
 which the gentleman has proposed, so far as the 
 matter of removal is concerned. I suppose no 
 governor would undertake to remove an elective 
 officer unless for sufficient cause. Therefore, it 
 seems to me that the article is sufficiently guarded 
 in the amendment, and the interests of the Com 
 monwealth will be thereby the better protected. 
 
 Mr. TRAIN, of Eramingham. My attention 
 has been directed to this matter only since the 
 gentleman has called it up ; but it seems to me 
 we ought to define the causes for which the gov 
 ernor and council may remove an officer. As it 
 is, the governor, with the advice of the council, 
 may remove an officer for any cause. If the 
 governor chooses to find fault with me for being 
 only five feet and a half in height, he may remove 
 me from an office to which I have been elected 
 by the people. Now, I do not believe the Con 
 vention desire to intrust such power in the hands 
 of the governor and council. And for the pur 
 pose of reaching such cases, there is a provision 
 in the Constitution of the State of New York, 
 which covers the whole ground. But not to 
 detain the Convention, I will move to strike out 
 the words " cause shown," and insert the words 
 " disability, incapacity, or malfeasance in office." 
 
628 
 
 TENURE OF OFFICE. 
 
 [70th day. 
 
 Friday,] 
 
 HALLETT BATES HOPKINSON BUTLER BIRD. 
 
 [July 29th. 
 
 The PRESIDENT. The gentleman s amend 
 ment will be in order after this is disposed of. 
 The present proposition is to strike from the third 
 resolve the proviso which is in these words : 
 " provided, however, a copy of the charges upon 
 which said removal is made, shall be furnished to 
 the party to be removed, and a reasonable oppor 
 tunity given him for defence." 
 
 Mr. HALLETT, for Wilbraham. I hope the 
 amendment will not be adopted. I think the 
 provision goes far enough as it is. The amend 
 ment would give a most extraordinary power to 
 the governor and council. Give them the power 
 of removal, if you please, but this gives the gov 
 ernor the power, whenever he chooses to charge 
 a man with disability, to immediately suspend 
 him from office ; and when an examination is 
 had, if it be had at all, it may turn out that the 
 charge is utterly groundless and malicious. I 
 question very much the propriety of placing this 
 power in the hands of the executive. I am wil 
 ling that the governor should have the power of 
 appointment to fill a vacancy, but I am not quite 
 prepared to go so far as to give him the power of 
 removal, in the case of an elective officer, at his 
 mere will and pleasure. I should greatly prefer 
 the amendment of the gentleman from Framing- 
 ham. The moment an officer is elected, if the 
 governor does not like him, he has only to make 
 out a specification of charges against him, and 
 from that moment the officer is suspended from 
 the discharge of the duties of the office to which 
 he has been elected ; and the governor then fills 
 the office with a man of his own choosing. 
 
 Mr. BATES, of Plymouth. I rise for the 
 purpose of inquiring whether this is the final 
 stage of these resolves ? 
 
 The PRESIDENT. It is not. The question 
 will be on ordering the resolves to a second read 
 ing, after the proposed amendments shall have 
 been disposed of. 
 
 Mr. HOPKINSON, of Boston. The matter 
 presents itself to my mind very much as it is 
 viewed by the gentleman for Wilbraham. At 
 present, such officers could not be removed, 
 except by act of the legislature, to be adopted by 
 a vote of two-thirds. It appears to me we should 
 not give to the governor and council a power so 
 much greater than the legislature has. I think 
 there ought to be not only a specification of 
 charges, but a substantiation of them, before the 
 power of removal should be exercised. The man 
 elected to an office, might be obnoxious to the 
 governor for the time being ; and, to get rid of 
 him, nothing more would be requisite than the 
 mere will of the governor and council. There 
 should be some such restriction as is contained in 
 
 the Constitution of the State of New York. It 
 should not be a mere matter of discretion with 
 the governor, whether a man who has been 
 elected, shall retain his office or not. A mere 
 accusation, it seems to me, is not a sufficient 
 reason for removing a man from office. 
 
 Mr. BUTLER, of Lowell. I merely wish to 
 say, that if gentlemen will look at this matter for 
 a moment in the light in which I view it, I think 
 they will not find so much difficulty as they seem 
 to apprehend. I think they will see that there 
 can be no great danger of this power being 
 abused. All these officers, viz. : 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 of police courts, are to 
 be elected triennially, and when a vacancy occurs, 
 an election to fill such vacancy will take place at 
 the next annual election ; so that the power of 
 the governor to make a temporary appointment, 
 would only extend to the time of the next annual 
 election, perhaps six. or nine months at the far 
 thest. There would be but little gained by a 
 temporary appointment for a period so limited ; 
 and the governor would scarcely attempt to make 
 use of the power, therefore, for political purposes. 
 It would hardly pay. Now, take the case of 
 
 The PRESIDENT. The attention of the 
 Chair is called to the fact, that the resolves have 
 never been committed to the Committee of the 
 Whole. It will be necessary that they be so 
 committed, or else that the rule be suspended. 
 
 Mr. BIRD, of Walpole. I move that the rule 
 be suspended. 
 
 Mr. HALLETT, for Wilbraham. Are you 
 going to suspend the rule to pass these resolves ? 
 
 Mr. BIRD. No; only to order them to a 
 second reading. 
 
 The question upon the motion to suspend the 
 rule being put, a division was asked for, and 
 upon a count, it appeared there was not a quorum 
 voting. 
 
 Mr. CROWNINSHIELD, of Boston, moved 
 that the Convention adjourn. A division was 
 called for, and a count being had, there were 
 ayes, 23 ; noes, 76. The President voted in the 
 negative, making a quorum ; and the Convention 
 refused to adjourn. 
 
 The question was then taken on the motion to 
 suspend the rule, and by ayes, 95 ; noes, 6 it 
 was decided in the affirmative. 
 
 The question recurred on the amendment moved 
 by the gentleman for Manchester, (Mr. Dana). 
 
 Mr. HOPKINSON, of Boston. I rise only 
 for the purpose of making a suggestion which 
 may serve to facilitate our proceeding. It is 
 
71st day.] 
 
 DEBATES AND PROCEEDINGS. 
 
 629 
 
 Saturday,] 
 
 TRAIN SCHOULBR BIRD. 
 
 [July 30th. 
 
 this : As this matter now stands, not having been 
 considered in Committee of the Whole, we are 
 not prepared to act upon it, and this is not its 
 final stage. I therefore suggest that the amend 
 ment be withdrawn at this time, and that the re 
 solves be passed to their second reading, and 
 to-morrow, when they come up, we shall be ready 
 to consider the amendment, and act upon it as 
 well as upon the final passage of the resolves. 
 
 Mr. DANA, in accordance with the sugges 
 tion made by the gentleman from Boston, with 
 drew his amendment, and 
 
 The resolves were ordered to a second reading. 
 
 Orders of the Day. 
 
 On motion of Mr. TRAIN, of Framingham, 
 the Convention resumed the consideration of the 
 Orders of the Day. The next item on the 
 Orders being the motion to reconsider the vote by 
 which the resolve was passed in relation to 
 
 Imprisonment for Debt. 
 
 Mr. SCHOULER, of Boston, moved that the 
 motion to reconsider be laid upon the table. 
 The motion was agreed to. 
 
 Debates and Proceedings. 
 
 The following Reports from the Committee on 
 Reporting and Printing were taken up, and, under 
 a suspension of the rules, read twice and con 
 curred in. 
 
 COMMONWEALTH OF MASSACHUSETTS. 
 
 In Convention, July 28, 1853. 
 The Committee on Reporting and Printing, to 
 whom was referred the business of superintend 
 ing the Reporting and Publication of the De 
 bates and Proceedings of the Convention, ask leave 
 to report the following resolutions. 
 For the Committee, 
 
 M. BATES, JR., Chairman. 
 
 Resolved, That the chairman of the Committee 
 on Reporting and Printing be authorized, under 
 the direction and sanction of said Committee, to 
 superintend the Reporting, Indexing, Printing 
 and Publication of the Debates and Proceedings 
 of the Convention, until the same are completed, 
 and that he be paid therefor the sum of four dol 
 lars per day, and travel. 
 
 Resolved, That said Committee be authorized 
 to pay to the Secretary of the Commonwealth 
 such expenses, not exceeding six hundred dollars, 
 as may have been incurred for extra services per 
 formed by order of this Convention, and that the 
 Order of May 18th, be so far altered as that said 
 Committee shall have the direction of all matters 
 relative to the sale or distribution of the Reports 
 and Proceedings of this Convention. 
 
 Resolved, That a copy of the Debates and Pro 
 
 ceedings of this Convention, when completed, be 
 furnished by the Committee to each of the Re 
 porters to the Convention. 
 
 COMMONWEALTH OF MASSACHUSETTS. 
 
 In Convention, July 28, 1853. 
 The Committee on Reporting and Printing, to 
 whom was referred the order of July 21st rel 
 ative to appending to the published Debates, 
 " Poole s Statistical Viewof the Members," and the 
 "pay for the travel and attendance of members," 
 have considered the same, and report, that it ia 
 inexpedient for the Convention to take any action 
 thereon. 
 
 For the Committee, 
 
 M. BATES, JR., Chairman. 
 
 Journal of Committee of the Whole. 
 
 Mr. BIRD, of "Walpole, from the Committee on 
 the Preservation of the Records, submitted a Re 
 port, authorizing James T. Robinson, Esq., one 
 of the Secretaries of the Convention, to make up 
 the Journal of the Proceedings in Committee of 
 the Whole, and to prepare an Index for the same, 
 at the same rate of compensation as that allowed 
 for the Journal of the Convention and Index to 
 the same. 
 
 The Report was adopted. 
 
 Suspension of a Rule. 
 
 Some conversation ensued, respecting an in 
 formality in the proceedings relating to the resolve 
 on the subject of imprisonment for debt, which 
 informality was subsequently remedied by the 
 suspension of the rule which requires all proposi 
 tions for amending the Constitution, to be con 
 sidered in Committee of the Wnole, before they 
 are debated and finally acted upon in Convention, 
 so far as relates to that particular subject. 
 
 On motion by Mr. WOOD, of Fitchburg, the 
 Convention then, at half past seven o clock, ad 
 journed until to-morrow at nine o clock, A. M. 
 
 SATURDAY, July 30, 1853. 
 
 The Convention assembled pursuant to ad 
 journment, and was called to order by the Presi 
 dent, at nine o clock. 
 
 Prayer by the Chaplain. 
 
 The journal of yesterday was read. 
 
 Superintendence of Printing the Debates. 
 The resolution reported from the Committee 
 on Reporting and Printing, in relation to the su 
 perintendence of the printing of the Debates, 
 was read and adopted. 
 
630 
 
 TENURE OF OFFICE, &c. 
 
 [71st day. 
 
 Saturday,] 
 
 WALKER DANA. 
 
 [July 30th. 
 
 The Amended Constitution. 
 
 On motion by Mr. WALKER, of North 
 Brookfield, it was ordered, that one hundred 
 thousand copies of the Amended Constitution be 
 printed for distribution, and that a copy of the 
 same be sent to every family in the Common 
 wealth. 
 
 On motion by Mr. DANA, for Manchester, 
 the Convention proceeded to the consideration of 
 the Orders of the Day, the first item being the re 
 solves reported from the Committee on the Judi 
 ciary, in relation to the 
 
 Tenure of Office, 
 
 The question being upon their final passage. 
 They were read, as follows : 
 
 1. Resolved, That persons holding office by 
 election or appointment under the present Consti 
 tution, shall continue to discharge the duties 
 thereof until their term of office shall expire, or 
 officers authorized to perform their duties, or any 
 part thereof, shall be elected and qualified, pursu 
 ant to the provisions of this amended Constitu 
 tion ; when all powers not reserved to them by the 
 provisions of this amended Constitution shall 
 cease: provided, however, that Justices of the 
 Peace, Justices of the Peace and of the Quorum, 
 and Commissioners of Insolvency, shall be au 
 thorized to finish and complete all proceedings 
 pending before them at the time, when their pow 
 ers and duties shall cease, or be altered as afore 
 said. 
 
 2. Resolved, That the Legislature shall provide, 
 from time to time, the mode in which commis 
 sions or certificates of election shall be issued to 
 all officers elected pursuant to the Constitution, 
 except in case where provision shall be made 
 therein. 
 
 3. Resolved, That the Governor, by and with 
 the consent of the Council, may at any time for 
 cause shown, remove from office, Clerks of 
 Courts, Commissioners of Insolvency, Judges and 
 Registers of Probate, District-Attorneys, llegis- 
 ters of Deeds, County Treasurers, County Com 
 missioners, Sheriffs, Trial Justices, and Justices of 
 Police Courts : provided, however, a copy of the 
 charges upon which said removal is made, shall 
 be furnished to the party to be removed, and a 
 reasonable opportunity given him for defence. 
 
 4. Resolved, That whenever a vacancy shall 
 occur in any elective office provided for in this 
 Constitution, except that of Governor, Lieuten 
 ant- Governor, Councillor, Senator, member of 
 the House of Representatives, and Town and 
 City officers, the Governor for the time being, by 
 and with the advice and consent of the Council, 
 may appoint some suitable person to fill such va 
 cancy until the next annual election, when the 
 same shall be filled by a new election, in the man 
 ner to be provided by law : provided, hoioever, 
 Trial Justices shall not be deemed to be town 
 officers for this purpose. 
 
 5. Resolved, That all elections provided to be 
 
 had under this amended Constitution shall, un 
 less otherwise provided, be first held on the Tues 
 day next after the first Monday of November, 
 A. D. 1854. 
 
 Mr. DANA, for Manchester, moved to amend 
 the third resolve, by striking out all after the 
 word " provided," and inserting the following : 
 
 That the cause be entered upon the records of 
 the Council, and a copy thereof be furnished to 
 the party to be removed, and a reasonable oppor 
 tunity be given him for defence. And the Gov 
 ernor may at any time, if the public exigency 
 demand it, either before or after such entry and 
 notice, suspend any of said officers, and appoint 
 substitutes who shall hold office until the final 
 action upon the question of removal. 
 
 Mr. DANA. The object of this third resolve 
 is, to enable the governor to remove and appoint 
 a substitute in the place of an officer who shall 
 become insane, or otherwise incompetent to dis 
 charge the duties of the office, or who shall be 
 come unfaithful to the government in a time of 
 emergency. Formerly, the governor had the 
 power of removal in all cases, and of making 
 appointments, but you have incorporated into the 
 new Constitution a provision by which all these 
 officers mentioned in the third section, are to be 
 elected by the people for three years, and the 
 governor has no power of removal or suspension 
 in regard to them, whatever. Accordingly, if a 
 sheriff should become insane, or incompetent, or 
 unfaithful, he could still hold his office for three 
 years, in defiance of the Commonwealth, and to 
 the great injury of the public interest. Every 
 one must agree that the governor should have the 
 power of removal in such cases ; the only ques 
 tion is, how it should be exercised. The Com 
 mittee originally proposed that the governor 
 shoiild remove the officer, but that he should first 
 specify the charges against him, and enter them 
 upon the records, and give him notice thereof, that 
 he might have an opportunity for defence. The 
 amendment proposes, in addition to that, that the 
 governor shall have power, during the hearing of 
 the charges, to suspend the officer, and make a 
 temporary appointment to fill his place. The 
 case may easily be conceived, of a sheriff, or a 
 clerk of a court, or other incumbent of an im 
 portant office, becoming insane or otherwise in 
 capacitated, or they may prove unfaithful, trai 
 torous in time of insurrection, or invasion ; they 
 may have gone over to the enemy, and yet, if the 
 governor has not this power of removal and ap 
 pointment ad interim, the business of the office 
 must be suspended while the case is being inves 
 tigated, and all that time there would be no sher 
 iff, or no clerk, as the case might be. It is 
 
71st day.] 
 
 TENURE OF OFFICE. 
 
 631 
 
 Saturday,] 
 
 DAVIS DANA TRAIN LORD. 
 
 [July 30th. 
 
 absolutely necessary to the carrying on of the 
 government, that this power should exist. I 
 have consulted with the members of the Com 
 mittee on the Judiciary, and they are in favor of 
 the amendment, as are also the Committee on 
 Revision. I hope it will be adopted without any 
 objection. 
 
 Mr. DAVIS, of Worcester. As I understand 
 the matter, the governor will have the power, if 
 this amendment be adopted, to supersede an elec 
 tion by the people, by an appointment of his own, 
 whenever he thinks proper to do so. 
 
 Mr. DANA. If the gentleman -will permit 
 me, I ought to have said also, that there is a 
 provision which directs that, in case of a vacancy 
 occurring in an office which is elective for the 
 term of three years, it shall be filled by an elec 
 tion at the next annual election, so that if the 
 governor remove an officer, and appoint another 
 in his place, such appointment can only hold 
 good, under any circumstances, until the next 
 annual election. Gentlemen will perceive, then, 
 that the governor could have very little induce 
 ment for making a removal and appointment un 
 less the cause contemplated by the Constitution 
 actually existed. And the whole matter must 
 become a matter of record. The governor, then, 
 would not be very likely to make a removal with 
 out sufficient cause, when all the circumstances 
 must become a matter of public notoriety. 
 
 Mr. TRAIN, of Framingham. If I rightly 
 understood the effect of the amendment offered 
 by my friend over the way, I suppose the object 
 sought to be attained is one which every one will 
 acknowledge is a proper one to be accomplished. 
 But if I understand the effect of it, as offered by 
 the gentleman for Manchester, (Mr. Dana,) it 
 will be to place it in the power of the executive, 
 the day after a sheriff, or clerk of a court was 
 elected by the people, to suspend one of these 
 officers, to hold him suspended, and to keep the 
 office filled by his own appointment during the 
 entire three years. For it is left at the option of 
 the governor and council to try him or not, as 
 they please. Now, suppose the clerk of a court 
 refuses to enter up a judgment to suit me, and I 
 go to the governor and file a charge against that 
 clerk, that he did not enter up a judgment as I 
 wanted him to. Thereupon he is suspended by 
 the governor until the council try him, and they 
 will try him just when they get ready ; but in 
 the mean time, the office is filled by the governor. 
 I would not give the governor any such power. 
 I think if there is a vacancy in the office of clerk 
 of a court, it should be filled by the court itself, 
 but it is too late to discuss that now. 
 Mr. DANA. I will remark that I wish the 
 
 Convention had provided that vacancies occur 
 ring in the offices of the clerks of the courts, 
 should be filled by the courts themselves. But 
 they have otherwise provided. 
 
 Mr. LORD, of Salem. I desire to ask, as a 
 matter of order, whether this precise resolution 
 has not been once acted upon and rejected, by the 
 Convention ? 
 
 The PRESIDENT. The Chair thinks not. 
 It is, however, too late to raise the question of 
 order now. The resolves have been received, 
 read a second time, and the question is on their 
 final passage. 
 
 Mr. LORD. I do know how that may be, for 
 I was not present a portion of the time yesterday 
 afternoon, but just such a proposition was re 
 ported by the gentleman from Lenox, (Mr. Bish 
 op,) from the Committee of which he is chairman. 
 It provided that the governor should have power 
 to remove all those officers which are mentioned 
 in the resolve now before us. That resolution 
 was rejected, by an almost unanimous vote of the 
 Convention, and I submit that this resolution 
 could not regularly have been introduced. If, 
 however, it has passed to a stage where the point 
 of order cannot be made upon it, I have nothing 
 to say. 
 
 Mr. DANA, for Manchester. I will remark 
 to the gentleman from Salem, that this is quite a 
 different provision from that reported by the gen 
 tleman from Lenox, (Mr. Bishop). That gave 
 to the governor the unqualified power of re 
 moval. This gives the governor, by and with 
 the advice of the council, the power to remove 
 them upon certain conditions. 
 
 Mr. LORD. The resolution before the Con 
 vention, to which I have reference, is the follow 
 ing: 
 
 3. Resolved, That the Governor, by and with 
 the consent of the Council, may at any time, 
 for cause shown, remove from office, Clerks of 
 Courts, Commissioners of Insolvency, Judges and 
 Registers of Probate, District- Attorneys, Regis 
 ters of Deeds, County Treasurers, County Com 
 missioners, Sheriffs, Trial Justices, and Justices 
 of Police Courts : provided, however, a copy of the 
 charges upon which said removal is made, shall 
 be furnished to the party to be removed, and a 
 reasonable opportunity given him for defence. 
 
 In document No. 104, you will find reported 
 from the Committee on the Secretary, Treasurer, 
 &c., the following : 
 
 2. Resolved, That it is expedient so to amend 
 the Constitution, that the Governor may remove 
 any officer in the former resolves of this Commit 
 tee mentioned, within the term for which he shall 
 have been elected, giving such officer a copy of 
 
632 
 
 TENURE OF OFFICE. 
 
 [71st day. 
 
 Saturday,] 
 
 LORD CHAPIN DANA MORTON. 
 
 [July 30th. 
 
 the charges against him, and an opportunity of 
 being heard in his defence. 
 
 The PRESIDENT. The resolves are not the 
 same. The gentleman will find certain officers 
 mentioned in one resolution that are not men 
 tioned in the other. 
 
 Mr. LORD. Certain officers are named in one 
 of the resolves, and the other refers to former 
 resolves, where the same officers are named. 
 
 The PRESIDENT. The Chair is of the opinion 
 that they are not the same resolves, and that they 
 are in order. 
 
 Mr. CHAPIN, of Worcester. The resolve to 
 which the gentleman from Salem refers, con 
 tained iu document No. 104, was committed, 
 along with others, to the Select Committee, of 
 which the gentleman from Boston, (Mr. Steven- 
 Bon,) was chairman. That Committee struck it 
 out in their Report. I submit, therefore, that 
 the Convention has not taken any action upon it, 
 which, by the rules of order, would prevent it 
 from being introduced again. 
 
 Mr. LORD. If it is too late to raise the point 
 of order, of course I have nothing to say. I 
 however desire to say a word upon the amend 
 ment of the gentleman for Manchester, (Mr. 
 Dana). If I understand the effect of that amend 
 ment, it is this : Whenever anybody sees fit to 
 make a charge against an officer they do not like, 
 and who is of different politics from the governor 
 then in office, they thereupon present their charge 
 to the governor, and the governor, thereupon, en 
 ters the charge upon record, suspends that officer, 
 and appoints somebody else in his place. I want 
 to know if that is not the meaning of this resolve ? 
 Has not the governor the power as soon as one 
 of these officers, elected by the people, comes into 
 office, if anybody sees fit to object to him to 
 place that objection upon the record, and then 
 suspend that officer just as long as he pleases ? 
 
 A MEMBER. Only in cases of insanity. 
 
 Mr. LORD. If it is only in cases of insanity 
 I will go for it. Still, there is a class of un 
 healthy politicians who are considered insane, 
 and that may be considered good reason, perhaps, 
 for suspending them. 
 
 Now, I submit, Mr, President, that if the Con 
 vention understand this resolve, or this amend 
 ment, they will not pass them. It is not neces 
 sary to make an argument against them. It is 
 only necessary for the Convention to understand 
 their effect, to reject them. But, Sir, I will not 
 take up the time of the Convention upon the 
 subject. 
 
 Mr. DANA. I wish the Convention to un 
 derstand this matter. The governor has al 
 ways had the power to remove these officers for 
 
 cause shown. We only make the same provision 
 with regard to sheriffs, clerks of courts, &c., 
 which has been made before. Indeed, we place 
 restrictions upon the power of removal, which 
 are not contained in the present Constitution. 
 
 Mr. LORD. My objection is not that there is 
 a power of removal. The governor has heretofore 
 had an unlimited power to remove the officers of 
 his own appointment, and, I think it is perfectly 
 proper that he should have that power ; but row 
 it is proposed to give him the power to remove 
 officers appointed by the people. It is that to 
 which I object. 
 
 Mr. DANA. Does the gentleman say the gov 
 ernor ought not to have the power to suspend 
 these officers ? 
 
 Mr. LORD. I think the governor ought not 
 to have power to remove or suspend an officer 
 the people have elected. 
 
 Mr. DANA. But suppose he is insane ? 
 
 Mr. LORD. I would provide a remedy. 
 
 Mr. DANA. What is it ? 
 
 Mr. LORD. I would not leave it to the gov 
 ernor to remove him. 
 
 Mr. DANA. I do not think the objection 
 holds good at all. The governor has always held 
 that power. But this limits it. The governor 
 and council are not to remove except for cause 
 shown, and that cause must be noted upon the 
 records of the council. Notice must be given to 
 the party himself, and he has the right to be heard 
 in his own defence. Now, I put it to the good sense 
 of gentlemen, whether it is at all probable that 
 the governor would remove, without good cause, 
 an officer whom the people had chosen, on writ 
 ten charges, with published proceedings ? The 
 people have the right to fill the vacancy every 
 year. The appointee of the governor can hold 
 only until the next general election. Now, Sir, 
 while the governor must give notice to the officer 
 himself, of the charges against him, and place the 
 same upon record, I ask if he would dare to re 
 move an officer the people have chosen, except for 
 good cause ? But if gentlemen are much afraid 
 to trust the governor, I am perfectly willing the 
 causes for which he shall be removed shall be 
 specified in the resolve. 
 
 I move, therefore, to strike out in the second 
 line the words " cause shown," and to insert the 
 words, " incapacity, misconduct, or malad 
 ministration in office," so that the clause will 
 read : 
 
 Resolved, That the Governor, by and with the 
 consent of the Council, may at any time, for in 
 capacity, misconduct, or maladministration in 
 office, remove from office, c. 
 
 Mr. MORTON, of Taunton. The Committee 
 
71st day.] 
 
 TENURE OF OFFICE. 
 
 633 
 
 Saturday,] 
 
 MORTON PARSONS. 
 
 [July 30th. 
 
 on the Judiciary gave some considerable atten 
 tion to this subject, and they came to the result 
 which is stated in this resolve. It may be open 
 to objections perhaps sound ones, certainly it is 
 open to plausible ones. But, I think it must be 
 obvious to every one, that some provision is 
 necessary to provide for the removal of these 
 officers. Here are a large number of officers 
 chosen by the people. Some of them may become 
 incompetent to perform their duties. There may 
 be cause from insanity. There may be cause 
 from absence from the Commonwealth. There 
 may be cause from unfaithfulness and intentional 
 violation of duty ; and the public good seems to 
 require that you should have somebody to act in 
 this matter. It seems almost a matter of neces 
 sity that some of these officers should be on duty 
 all the time. For instance, if the clerk of } r our 
 courts, your sheriff, your register of deeds, or 
 your register of probate, from any cause become 
 unable to perform their duties, it seems almost 
 indispensable that somebody should be authorized 
 to displace him, and to appoint some one else to 
 perform his duties. And, although I approve 
 highly of the vigilance which seems to be shown 
 in guarding the power you confer upon indi 
 viduals, and especially in cases of removal, yet I 
 do not believe that in cases of this kind there is 
 any great danger of abuse. So long as the gover 
 nor himself is elected by the people, and is re 
 quired to place upon record the causes for which 
 he removes an officer, I do not believe there is 
 any great danger of his removing, without suf 
 ficient cause, officers who are chosen by the 
 people. 
 
 I do not believe it is wise to define precisely the 
 cause or the act for which an officer shall be remove d. 
 If we do, we shall be almost sure to omit certain 
 causes for which they ought to be removed, and 
 thereby exclude them. I think we ought to have 
 the matter discretionary as much as possible. I do 
 not know how we can limit or classify the causes 
 for which an officer shall be removed, without 
 involving ourselves in difficulty. The learned 
 and astute gentleman for Manchester, (Mr. Dana,) 
 is as competent as any one to make such a classi 
 fication ; and he has provided, among other things, 
 incapacity, as a cause of removal. Now, we shall 
 perhaps never have an election where one party 
 will not charge the candidate of the other party 
 with incapacity. They will charge that he is incom 
 petent to perform his duty, and upon this ground 
 the governor would have the power to turn him 
 out of office. I repeat, I like vigilance in guarding 
 the power which you confer upon individuals ; 
 but, it seems to me, if you undertake to limit the 
 causes for which these officers may be turned out 
 
 43 3 
 
 of office, you will not make the power any more 
 safe from abuse, but, on the contrary, if there is 
 danger, you make it more dangerous. 
 
 Mr. PARSONS, of Lawrence. There is a por 
 tion of the amendment to which I am entirely 
 opposed, since we have made a portion of the 
 officers elective, to whom this resolution is to ap 
 ply. I have no great objection to the officers 
 being elected ; but since this Convention has 
 thought proper, by a large majority, to make cer 
 tain officers elective who have formerly been ap 
 pointed by the governor, and have left that matter 
 entirely to the people, I think it would ill become 
 us to put in that amendment, especially that part 
 of the amendment which says that when an 
 officer becomes incompetent, and is not capacitated 
 to discharge the duties for which he was elected, 
 he may be suspended. I say, it will give an op 
 portunity throughout this State, for various 
 political parties to get up petitions in towns, coun 
 ties, or districts, signed by hundreds, to be 
 brought before the governor and create a disturb 
 ance, and interfere with the rights of the people. 
 Now, what will that word "incapacity" mean. 
 It means nothing more than this : that when it 
 becomes necessary to send a petition to the gov 
 ernor, it will be argued by those persons who 
 represent the petitioners, that that person is in 
 capable ; that lie is incapable in a thousand dif 
 ferent ways, not from being insane, or from mal 
 feasance in office, but in an intellectual view, to 
 perform the duties for \vhich he was elected. I 
 say the governor has nothing to do with it ; and, 
 to my mind, it is highly improper that such an 
 amendment should be passed, for we have in 
 trusted their election to the people, who are to 
 judge whether a man is capable to perform the 
 duties for which he is elected. "Will not the peo 
 ple know the man for whom they vote ? I want 
 to know if they are not the best judges. Most 
 assuredly they are the best judges. They have 
 the sole right to judge, and as has been ar 
 gued for weeks past, with regard to vested 
 rights of the people, I will say, that so far as the 
 vested rights of the people are concerned, I am 
 not one of the sticklers for their rights in Massa 
 chusetts. I have 110 fear with regard to their 
 rights. I have always, since I have been a voter, 
 especially in the State of Massachusetts, thought 
 that the people are capable of taking care of them 
 selves, and of their own rights, and that they 
 will do it. But, I say, we are not the judges 
 whether a man is capable of performing the duties 
 of an office to which the people have chosen to 
 elect him. I hope we shall not make a farce of 
 this matter, since we have said that it is not prop 
 er to give to the people the right to elect judicial 
 
634 
 
 TENURE OF OFFICE. 
 
 [71st day. 
 
 Saturday,] 
 
 WALKER KEYES BUTLER. 
 
 [July 30th. 
 
 officers. This proviso, if adopted, will only make 
 dissension which will array hostile parties against 
 each other, by filing petitions on different sides, 
 and they can bring an array against almost any 
 man. 
 
 I want to ask the reformers in this Convention 
 if they intend to oppose our taking these officers 
 from the farmers, when we come to elect them by 
 the people, or from any other class of people from 
 whom we may choose to take them. I say that 
 petitions may be sent in with regard to district 
 and county officers which may require weeks in 
 order to decide whether the man who has been 
 elected by the people is competent, intellectually 
 or morally, for holding the office to which he has 
 been elected. I hope the resolution will not pass. 
 Mr. WALKER, of North Brookfield. I am 
 sure that the resolution, as it has been amended, 
 must commend itself to the good sense of the 
 Convention. It is very evident to my mind that 
 this power should be deposited somewhere; and 
 in placing it in the hands of the governor, with 
 these restrictions, there is no danger. I hope it 
 will be sustained. It is very evident that nothing 
 would be more unpopular or unwise, than for a 
 governor to remove a man who had been elected 
 by the people by a large majority. The very fact 
 that he had been removed would insure his re 
 election. I cannot see the least danger to be 
 apprehended in intrusting the governor with this 
 duty. 
 
 Mr. KEYES, for Abington. It may appear a 
 little immodest that I should imagine that I could 
 do anything to extricate ourselves from this state 
 of confusion ; but if the gentleman for Manches 
 ter will listen to me, I will try. I will start in 
 the first place, by saying, that I think that the 
 amendment with regard to cause being shown, 
 &c., is very proper, but that the latter part of the 
 amendment is unnecessary. I am in favor of 
 having a power of removal somewhere. But the 
 reason for appointing some one in the place of the 
 person removed, I think unnecessary. If the 
 crime charged against an officer is of an extraordi 
 nary character, so that it unfits him at once for 
 the discharge of the duties of his office, the gov 
 ernor and council can discharge him at once. 
 Therefore there is no danger in having this stand 
 as it does now, that a copy of the charges shall be 
 furnished to the party, so as to give a reasonable 
 opportunity for a defence. 
 
 Now if a man dies, and a vacancy occurs in 
 that way, it is provided for in the fourth resolu 
 tion. The time to be occupied in deciding a case 
 need not be longer than in the case of filling a 
 vacancy when a man dies, even if you give a copy 
 of the charges and allow the accused to appear. 
 
 And if the case is so extraordinary, and the person 
 is so very guilty that he should not hold his office 
 one hour, the governor and council can settle it 
 in an hour ; and therefore a vacancy will then 
 occur. The officer being removed, there is a pro 
 vision in the fourth resolution for filling that 
 vacancy. 
 
 Now let us look at the character of these offices 
 and see how important it is that in every minute 
 of time there should be some one in office. Take 
 the office of sheriff for example. Suppose he dies, 
 or is taken insane suddenly ; he has his deputies 
 to perform his duties. I take it the deputy is 
 simply a substitute for the sheriff. 
 
 Mr. BUTLEll, of Lowell. I wish to suggest 
 to the gentleman for Abington to consider that 
 the moment the sheriff dies, the deputies all die 
 with him. It is just as soon as that. 
 
 Mr. KEYES. That does not affect this case at 
 all. If there is a charge of maladministration, 
 he is alive then and his deputies are living with 
 him, and the duties may be performed, as they 
 are in many cases, by the deputies themselves. 
 The idea which I wish to convey to the Conven 
 tion is, that the time required to appoint a new 
 officer is just the same as to try him, provided the 
 case is so desperate that there would be danger to 
 the community to have him remain. For in 
 stance, the council can be summoned, and he 
 must appear immediately to show whether it is a 
 desperate case or not, and if it is an extraordinary 
 case he can be removed at once, and then as a 
 vacancy will have occurred, that vacancy can be 
 filled in the manner provided for in the fourth 
 resolution. 
 
 So in the case of a register of deeds ; he always 
 has his assistants, and it is not necessary that his 
 own hand should make the record of the hour 
 when it comes to his office, in order to make it 
 legal. Therefore the difficulty is no greater than 
 if a man were dead. It seems to me, therefore, 
 that all the power may be given to the governor 
 and council that need to be given for the removal, 
 with the provision which is now here, that a copy 
 of the charges shall be sent to the officer and he 
 may be allowed to appear before that council. 
 Because he may hold on still, and the prosecution 
 can go on ; and in the mean time, it is not prob 
 able he would do any more mischief; and if the 
 case was a desperate one he could be removed at 
 once, and the vacancy filled according to the pro 
 vision of the fourth resolution. 
 
 It seems to me, the third resolution may be left 
 to stand precisely as it is, except with regard to 
 the amendment proposed, that for cause shown, 
 &c. Then you have all the safety you can desire. 
 There should be some place of power somewhere, 
 
71st day.] 
 
 TERMS OF OFFICE, &c. 
 
 635 
 
 Saturday,] 
 
 DAVIS HALE HUNTINGTON WHITNEY MORTON. 
 
 [July 30th. 
 
 to remove an officer, and there is no place for it 
 better than with the governor and council them 
 selves. But they are elected annually, and they 
 would not discharge a man elected by the people 
 without sufficient cause. Now, to do away with 
 that objection of putting the whole power into 
 the hands of the governor to suspend him and 
 appoint a new one, these charges against an officer 
 can be preferred against him and a copy given, 
 and the question settled as soon as the council 
 can be called together. If it is such a doubtful 
 case that the man is not so great a rascal, then 
 the order may rest there for a while. It strikes 
 me that this will avoid all difficulties, and that 
 the first amendment of the gentleman for Man 
 chester settles the whole thing. 
 
 The question was then taken on each clause of 
 the amendment separately, and they were both 
 adopted. 
 
 The question was then taken on the final pas 
 sage of the resolves, as amended, and they were 
 
 Question of Order. 
 
 Mr. DAVIS, of Plymouth. I wish to inquire 
 whether it will be in order to offer a resolution 
 now. 
 
 The PRESIDENT. The gentleman can sub 
 mit a resolution by leave of the Convention. 
 
 Mr. DAVIS. There was an order, in the early 
 part of the session, offered by the gentleman from 
 Natick, which was referred to the Committee on 
 appointing the governor by the legislature. By 
 some mishap, the Committee have not acted upon 
 it, or if they have acted it has not been put into 
 the Orders of the Day. I wish to offer a resolu 
 tion as a substitute for the order sent the Com 
 mittee by the gentleman from Natick. 
 
 Resolved, That the Constitution be so amended 
 as to provide that no member of the Senate or 
 the House of Representatives, who shall have 
 taken his seat therein, shall, during the year for 
 which he was elected, be appointed by the Gov 
 ernor to any office, commission, or trust, which 
 shall have been created, or the emoluments of 
 which shall have been increased by the Legisla- 
 lature, during said year. 
 
 I ask leave to offer this resolution, because I 
 suppose it will not create any debate, and so far 
 as I can learn, it is unanimously the opinion of 
 the members of the Committee that such a reso 
 lution should be inserted in the Constitution. 
 "VVe have a provision of this kind in the Consti 
 tution of the United States, and a similar pro 
 vision has been adopted by the Convention with 
 regard to the Council. 
 
 Mr. HALE, of Bridgewater. Before this reso 
 lution is received, I wish to state that that order 
 
 to which the gentleman has referred, was con 
 sidered by the Committee, and, I believe, it was 
 almost the unanimous opinion of the Committee, 
 that no action was necessary on the part of the 
 Convention. I believe the gentleman from Ply 
 mouth was present at one meeting when it was 
 considered expedient to have such a resolution ; 
 but at a subsequent meeting, when he was not 
 present, it was decided inexpedient. 
 
 The PRESIDENT. If the Chair understands 
 the gentleman from Plymouth correctly, this sub 
 ject has been referred to a Select Committee of the 
 Convention. It is not, therefore, in order. The 
 proper order will be for the gentleman from Ply 
 mouth to make a motion that the Committee be 
 instructed to report at a given time. 
 
 Mr. HUNTINGTON, of Northampton. It 
 seems to me it is altogether too late to introduce a 
 proposition of that character. It seems that the 
 subject has been reterred to a Committee, and that 
 there is a division of opinion in that Committee. 
 Owing, therefore, to the lateness of the session, 
 and the probability that the subject must create a 
 debate, I move that the subject be laid on the 
 table. 
 
 Mr. WHITNEY, of Boylston. I hope that 
 motion will prevail. I want to leave a little 
 something for the next Constitutional Convention 
 to do. I hope that we shall not do everything 
 at this time. 
 
 The question being then put on the motion to 
 lay upon the table, it was agreed to. 
 
 Terms of Office. 
 
 Mr. MORTON, of Taunton. I wish to in 
 quire whether the resolves from the Judiciary 
 Committee have been finally passed. I have been 
 obliged to be absent for a few moments. 
 
 The PRESIDENT. They have been passed. 
 
 Mr. MORTON. Then, Mr. President, I feel 
 it to be my duty to move a reconsideration of that 
 vote, for a special purpose, which I will state ; 
 and if the purpose which I am about to state, 
 meets the approbation of the Convention, they 
 will doubtless reconsider the vote by which the 
 resolves were passed, in order that I may intro 
 duce a certain amendment, which I will read 
 before I ask action on the motion to reconsider. 
 It is not for the purpose of rejecting anything 
 that has been adopted, or modifying anything, but 
 for the purpose of introducing an additional re 
 solve, which the Committee on the Judiciary did 
 not feel itself authorized to do, under the special 
 commission under which they last acted. Gen 
 tlemen of the Convention will recollect, that we 
 have provided for the election of a great number 
 of officers, but we have not fixed the term of 
 
636 
 
 TERMS OF OFFICE. 
 
 [71st day. 
 
 Saturday,] 
 
 MORTON HALE BUTLER STEVENSON MOREY. 
 
 [July 30th. 
 
 those offices. "We have fixed the tenure, but we 
 have never fixed the term at which their duties 
 shall commence. At present, some of them com 
 mence at one season of the year, and some at 
 another. Now if they are elected in November, 
 it seems to me that it would be better to have 
 them commence at a uniform period to enter 
 upon their duties. As it is now, the county 
 commissioners enter upon the duties of their 
 office at one period, the registers of deeds at 
 another, and county treasurers at still another. 
 The Committee have deemed it expedient to have 
 the terms of all the offices commence at the same 
 time. If this meets the approbation of the Con 
 vention, I hope they will reconsider the vote by 
 which they passed the resolves, so that I may 
 have an opportunity to offer an additional resolve, 
 as an amendment, which I will now read : 
 
 Resolved, That the terms of all elective officers 
 provided for in this Constitution, shall commence 
 on the first Wednesday in January next after 
 their election. 
 
 The PRESIDENT. If there be no objection, 
 the Chair will consider the question on the final 
 passage of the resolves as not having been put to 
 the Convention. The Chair understands that no 
 objection is made. The question will therefore 
 now be on the final passage of the resolves. 
 
 Mr. MORTON. I now offer the amendment 
 which I read to the Convention. 
 
 Mr. HALE, of Bridgewater. I want to inquire 
 of the gentleman from Taunton how that would 
 operate in the case of a vacancy filled by an 
 election in the interim whether in that case 
 the term would have to commence on the first 
 "Wednesday in January following. Suppose the 
 vacancy is filled in May, is the office to remain 
 vacant until the next January before the term 
 will commence ? 
 
 Mr. MORTON. The amendment was written 
 in some haste ; but that was not the intention, at 
 any rate. If there is any oversight in the form of 
 the resolution, the Revising Committee will put 
 that right. 
 
 Mr. BUTLER, of Lowell. If I understand 
 this matter, we have already passed a resolution 
 that all these vacancies shall be filled at the annual 
 election in November. If there is a vacancy oc 
 curring in the mean time, ad interim, the governor 
 appoints some one ; and of course the ad interim 
 appointee would hold the office until the first 
 Wednesday in the January succeeding, when the 
 newly elected officer would assume the duties. 
 There is no filling vacancies in May by elections, 
 for all vacancies are to be filled at the annual 
 election in November, in order to prevent the 
 people from being called out too often. 
 
 Mr. STEVENSON, of Boston. I desire to 
 make a suggestion, that it would be well to ex 
 cept representatives to the general court, for the 
 reason that they may be chosen during the ses 
 sion of the legislature, upon precepts. 
 
 Mr. MORTON. This does not apply to vacan 
 cies. This resolve fixes the time when the terms 
 of office shall commence. It says that the terms 
 of all elective officers shall commence on the first 
 Wednesday in January next after their election, 
 and of course they hold their offices until the first 
 Wednesday in the January following. If a 
 vacancy occurs in the meantime, there is a pro 
 vision made in another resolve how that tempo 
 rary vacancy shall be supplied until the next 
 election. 
 
 Mr. STEVENSON. I should like to have the 
 resolve read again. 
 
 The resolve was accordingly read. 
 
 Mr. STEVENSON. The language of the re 
 solve is, that the terms of all elective officers pro 
 vided for in this Constitution, shall commence on 
 the first Wednesday in January next after their 
 election. Now, suppose a member of the general 
 court is chosen by precept in April, 18-54, the first 
 Wednesday in the January next after his election 
 will be the first Wednesday in January, 1855, 
 and another election will then have intervened. 
 
 Mr. MORTON. My construction of the 
 language there used, which I admit was not very 
 carefully considered, was, that the regular term 
 of office shall commence on the first Wednesday 
 in January, and shall continue until the first 
 Wednesday in the next January. If there is a 
 vacancy, it does not affect the term of office ; in 
 that case, the term of office would be occupied by 
 two individuals, or it may be, by three or four. 
 In order to meet the difficulty suggested by the 
 gentleman from Boston, I will modify the resolve, 
 by adding after the word " Constitution," the 
 words " except members of the legislature," so 
 that it will then stand as follows : 
 
 Resolved, That the terms of all elective officers, 
 provided for in this Constitution, except members 
 of the legislature, shall commence on the first 
 Wednesday in January next after their election. 
 
 Mr. MOREY, of Boston. I will inquire 
 whether this applies to the election of governor 
 and lieutenant-governor, and officers which are in 
 some cases to be chosen by the legislature. 
 
 Mr. MORTON. It is already provided that 
 their terms shall commence on the first Wednes 
 day in January. 
 
 Mr. MOREY. Oftentimes it is the case that 
 they are not chosen until sometime in the latter 
 part of January. 
 
71st day.] 
 
 DISTRIBUTION OF DOCUMENTS, &c. 
 
 637 
 
 Saturday,] 
 
 OLIVER HOOPER MORTON HALE WALKER BIRD. 
 
 [July 30th. 
 
 Mr. OLIVER, of Lawrence. I wish to make 
 an inquiry with regard to that amendment. I 
 understand that the terms of all officers who are 
 to be elected under this Constitution are to com 
 mence on the first Wednesday in January. Sup 
 pose I should be elected a military hero about the 
 first of September, I want to know if I am to go 
 without my commission until the next January ? 
 That would spoil all the beauties of our militia 
 system. 
 
 Mr. HOOPER, of Fall River. I would sug 
 gest that in order to accommodate the gentleman 
 from Lawrence, the word "civil" be inserted, so 
 as to leave out all uncivil officers. [Laughter.] 
 
 Mr. OLIVER; That would be doing the 
 civil thing," I grant ; but I hope it will not be 
 considered that the military are uncivil. 
 
 Mr. HOOPER. Not at all. 
 
 Mr. MORTON. Mr. President : We have la 
 bored so long here in trying to improve our Con 
 stitution and to make it perfectly correct in every 
 respect, that we have grown amazingly critical, 
 and I shall expect that everything that passes the 
 ordeal here will bear the test of criticism as well 
 as of legal and constitutional propriety. En 
 deavoring to profit by the suggestions which have 
 been made to me from various quarters, I have 
 made a little modification of my amendment, 
 which I will state now, and I hope that gentle 
 men will be so kind as to suggest any improve 
 ments that it may require before I offer it formally, 
 and after they have exercised their critical acumen 
 upon it, I will substitute it for my other proposi 
 tion, and hope that no objection can then be made 
 to it. I propose to strike out the words, " except 
 members of the legislature," and insert, " not 
 otherwise " before the words " provided for," so 
 that it will read : 
 
 Resolved, That the terms of all elective officers 
 not otherwise provided for in this Constitution, 
 shall commence on the first Wednesday in Jan 
 uary next after their election. 
 
 If that does not cover the whole ground, I should 
 be very happy to learn what the exceptions are. 
 
 Mr. HALE, of Bridgewater. I hope the gen 
 tleman from Taunton will not suppose that I 
 objected to his amendment for the purpose of 
 criticism ; it was only because I thought there 
 was a detect in it that ought to be remedied. I 
 have no desire to criticise the reports which are 
 presented here by any member of this body. 
 
 The amendment, as modified, was agreed to, 
 and the resolves, as amended, were finally passed. 
 
 Distributing the New Constitution Reports of 
 Debates, $c. 
 
 Mr. WALKER, of North Brookfield. An 
 
 order was passed this morning that one hundred 
 thousand copies of the present Constitution of 
 this State, together with the new Constitution to 
 be submitted to the people, should be published 
 in the same manner with the general laws and 
 resolves, and distributed to every family in the 
 Commonwealth. I find that the present Consti 
 tution has already been published and is now in 
 process of being distributed. I hope, therefore, 
 that the vote by which this order was passed will 
 be reconsidered, for it will be entirely unneces 
 sary and involve a waste of the public money to 
 have the present Constitution printed again, as is 
 proposed. I move a reconsideration of that 
 vote. 
 
 The motion was agreed to, and the question 
 recurred on the adoption of the order. 
 
 Mr. WALKER. I move to strike out the 
 words, " the present Constitution of the State, 
 together with." 
 
 Mr. HALE, of Bridgewater, thought that it 
 would be well to have both Constitutions sent 
 out together, so that the people could have a better 
 opportunity to compare them. 
 
 Mr. TRAIN. I wish to inquire of my friend 
 from North Brookfield if he proposes that one 
 hundred thousand copies shall be given to each 
 family in the Commonwealth. 
 
 Mr. WALKER. That is not the language of 
 the order. 
 
 Mr. TRAIN. I should like to hear it read, as 
 he proposes to amend it. 
 
 The order was read, as follows : 
 
 Resolved, That one hxindred thousand copies of 
 the new Constitution to be submitted to the peo 
 ple, be published in the same manner as the gen 
 eral laws and resolves, and distributed to every 
 family in the Commonwealth. 
 
 Mr. BIRD. I should like to know whether 
 the gentleman has ascertained that there are ex 
 actly a hundred thousand families in the Com 
 monwealth, among whom these are to be distrib 
 uted. 
 
 Mr. WALKER. Year before last, we pub 
 lished ninety thousand copies of the laws, and 
 last year we published one hundred and sixty 
 thousand copies, because there was a larger de 
 mand than usual, as they filed th em away in all 
 the lawyer s offices, where there was a great call 
 for them. I supposed one hundred thousand 
 copies would be sufficient. 
 
 Mr. BIRD, of Walpole. I beg to inform the 
 gentleman from North Brookfield, that there are 
 two more families in my neighborhood this year, 
 than there were last. [A laugh.] 
 
 Mr. WALKER. Of course, the number of 
 copies can be increased without much expense. 
 
638 
 
 DISTRIBUTION OF DOCUMENTS. 
 
 [71st day. 
 
 Saturday,] 
 
 HALE WALKER BIRD HOOPER UNDERWOOD MARYIX. [July 30th. 
 
 Mr. HALE, of Bridgewater. If the gentleman 
 from North Brookfield has no objection, I will 
 offer an amendment to his proposition to add 
 the following words : " And one copy shall be 
 furnished to each family of the Commonwealth." 
 I think that will put the matter beyond all ques 
 tion. 
 
 Mr. WALKER. I will accept the amendment 
 of the gentleman from North Bridgewater, though 
 I insist that it is not necessary, to make good 
 grammar. How you can make the order mean 
 that one hundred thousand copies are to be sup 
 plied to each family in the Commonwealth, I do 
 not know, but I accept the amendment. 
 
 The order, as amended, was agreed to. 
 
 Mr. WALKER. I will venture to offer an 
 other order. It is as follows : 
 
 Ordered, That the Committee on Reporting 
 and Printing be instructed to employ some suit 
 able person to receive and distribute all the docu 
 ments ordered by the Convention, in the manner 
 and form heretofore directed. 
 
 It is evident that this must be done by some 
 body, and it is equally evident that it cannot be 
 done by the Secretary of State. It will be a great 
 labor to forward all these documents, and some 
 body must be employed to do it, or authorized to 
 employ somebody else. 
 
 Mr. BIRD, of Walpole. I do not see any 
 necessity for this order. If I understand it, it 
 directs the Secretary of State, or somebody else, 
 no matter who, to attend to the distributing of 
 documents from the the office of the Secretary of 
 State. I suppose that it provides also for the 
 copies of the Reports of our Debates here in the 
 hands of the printers. I suppose that the print 
 ers are paid to do that. You might as well em 
 ploy somebody to forward all our newspapers. 
 The gentleman says that somebody must do it. 
 Let the members do it themselves. 
 
 Mr. WALKER. Direct their own copies of 
 Reports, and newspapers, themselves, from the 
 office of the printers to themselves at home ! 
 
 Mr. BIRD. We were each allowed twenty- 
 one newspapers per week a pretty liberal allow 
 ance, as it seemed to me. Afterwards an order 
 was passed that whoever chose, might substitute 
 for their newspapers so many copies of the Reports 
 of Debates. These newspapers AVO were entitled 
 to during the session but I take it that we shall 
 take these Reports till the whole are printed. 
 
 Now, the State pays White & Potter to fur 
 nish these documents to us ; and it is no more 
 trouble to them to put them in the mail or hold 
 them in their office, subject to our order, or till 
 we call for them, than it has been heretofore ; and 
 I see no propriety therefore, in taxing the State to 
 
 pay for the distribution of these documents. I 
 do not know that it would be more trouble to go 
 to White Potter and acquaint them with the 
 manner in which we wished these Reports sent to 
 us, than it would be to go to a Committee. The 
 point is this : It is the duty of White & Potter to 
 furnish us these documents. They are paid for 
 it, and I hope that there will be no additional ex 
 pense on that account. 
 
 Mr. HOOPER, of Fall River. So far as I 
 know there are two classes of these Reports to be 
 distributed those which are to be bound in 
 octavo size, and those which are unbound. The 
 Convention ought to provide some mode for the 
 distribution of these as well as the journal. 
 Those which have been taken in lieu of news 
 papers, the members will take care of, themselves. 
 I do not agree with the remark of the gentleman 
 from Walpole that the order would only entitle 
 us to receive these Reports during the continu 
 ance of the session, for the reason that a Pro 
 spectus was sent out offering the whole Reports 
 for a certain price the price about which a daily 
 newspaper Avould cost and a resolution was offered 
 allowing each member to take a copy of these Re 
 ports in preference to a copy of a newspaper. There 
 is, therefore, no additional expense to the State 
 in the number of copies of these Reports that 
 have been taken. I think that each member 
 should arrange with White & Potter in the man 
 ner they have contracted for ; and it seems to me 
 to be proper that those copies of the Reports which 
 are to be bound should be distributed among the 
 members acording to an order of the Convention. 
 I therefore think, that the order of the gentleman 
 from North Brookfield is a proper one, and should 
 be adopted. 
 
 Mr. UNDERWOOD, of Milford, thought 
 that some method should be provided by which 
 every town should have its full proportion of 
 these Debates, in order that the inhabitants of the 
 State might see what the Convention had beeii 
 doing. 
 
 Mr. MARVIN, of Boston, said he understood 
 that the contract with White & Potter was for 
 three thousand copies of these Debates, of which, 
 fifteen hundred copies thus far had been delivered 
 to the Convention, and fifteen hundred would re 
 main to be distributed. The contract did not 
 involve the distribution of the remaining fifteen 
 hundred copies. 
 
 Mr. WALKER, of North Brookfield, was 
 clearly of opinion that somebody should have 
 charge of this business. In the first place, there 
 was the ordinary Journal of Debates which was 
 to be sent to each member ; then there was the 
 octavo edition of the Reports to be distributed. 
 
71st day.] 
 
 DISTRIBUTION OF DOCUMENTS. 
 
 639 
 
 Saturday," 
 
 EARLE SCHOULER MORTON BIRD LELAND. 
 
 [July 30th. 
 
 Then there were a hundred thousand copies of 
 the Constitution to be sent out, and it would cer 
 tainly be necessary to employ somebody to do all 
 this. He considered that the resolution was 
 indispensably necessary. 
 
 Mr. EARLE, of Worcester, was of opinion that 
 before the Convention provided for the distribu 
 tion of these documents, some measure should be 
 taken by which a degree of justice should be done 
 to members in relation to the copies of the Reports 
 of Debates. He understood, that according to a 
 certain order passed by the Convention, every 
 member was entitled to subscribe for certain 
 copies of these Reports instead of so many news 
 papers to which he would otherwise be entitled. 
 That privilege had been taken advantage of to 
 such an extent some members not taking any 
 newspapers, and consequently taking twenty- one 
 copies of the Reports that there were not now 
 copies sufficient to supply the members. After 
 the first edition was exhausted, there were about 
 one hundred members who were left without any 
 copies whatever. So that, as the matter now 
 stood, certain members who had taken advantage 
 of this order, were entitled to twenty- one entire 
 copies of this work, while one hundred other 
 members who were entitled to the same number 
 of copies, would not be allowed a single copy, 
 because the edition was exhausted. 
 
 He had, ho w ever, prepared an order which 
 would, to some extent, obviate that difficulty, and 
 would entitle such members as had not been sup 
 plied with the quarto edition, to receive three 
 copies of the octavo edition. Until that matter 
 was placed right, he did not think that the Con 
 vention ought to take any order in regard to the 
 farther distribution of these Reports. At any 
 rate, he did not think that the State ought to be 
 put to the expense of distributing these Reports, 
 when a part of them belonged to other members. 
 He understood that the messenger had taken the 
 names of those gentlemen who had ordered each 
 twenty- one copies, so that he might distribute 
 them according to their several orders. But it 
 seemed to him, (Mr. Earle,) that if the Conven 
 tion had not already given the messenger author 
 ity to do this work, the Convention should take 
 the matter in hand, so that justice might be done, 
 and that each member might receive at least, two 
 or three copies of the octavo edition. 
 
 Mr. SCHOULER, of Boston, said he did not 
 know how this difficulty was to be overcome. 
 He had subscribed for ten copies, and intended to 
 have them, having promised them all to friends, 
 except one copy for himself. 
 
 Mr. BIRD, of Walpole, said he had subscribed 
 for five copies, and could not get them. 
 
 Mr. MORTON, of Taunton, had subscribed 
 for three copies, and could not get one. 
 
 Mr. SCHOULER. Perhaps that may be my 
 case. I supposed that I was going to get ten 
 copies. I confess I do not see how we can arrange 
 it, very well. 
 
 Mr. BIRD, of Walpole. It seems to me that 
 we are getting along pretty fast in voting money 
 in this way, and I want to suggest that the better 
 way to settle all these questions would be to refer 
 them to a Special Committee. I move that the 
 order now pending be referred to a Special Com 
 mittee. I think it not improbable that such a 
 Committee, could, in twenty minutes, report some 
 plan which would satisfy the whole Convention. 
 
 The motion to refer the matter to a Special 
 Committee was agreed to. 
 
 Mr. EARLE, of Worcester. I will now offer 
 the order which I had prepared, and move that it 
 be referred to the same Committee. This is the 
 order : 
 
 Ordered, That such members of the Conven 
 tion as elected to take one or more copies of the 
 official Reports of Debates, &c., instead of news 
 papers, to which they were entitled under the 
 orders of this body, but who are unable to pro 
 cure the same in consequence of the deficiency of 
 the number provided, be entitled to receive the 
 same number of copies of the octavo edition, not 
 to exceed three copies in the whole, to any one 
 member ; and the Messenger is hereby directed 
 to furnish said copies in addition to those already 
 ordered to be furnished to the Convention. 
 
 Mr. EARLE. I would say that the Convention 
 have already ordered fifteen hundred copies of 
 the octavo edition to be printed. The expense of 
 printing that, is no more than that of the quarto 
 edition. It will not, in any contingency, add 
 anything to the expenses of this Convention, be 
 cause they are already ordered, and are to be paid 
 for at any rate. But there will be more copies 
 than will be required under the order for that 
 edition, and those copies which are not taken by 
 members under that order, will be left to be dis 
 tributed years hereafter by the members of the 
 Council, to themselves, their friends and others. 
 By this resolve, we shall do some measure 
 of justice, though not a full measure of justice, 
 to those who were not the first to enter their 
 names for copies, and at the same time we do no 
 injustice to the State or to any one else. I move 
 that the order be referred to the Special Commit 
 tee already ordered. 
 
 Mr. LELAND, of Holliston. I wish to in 
 quire of the gentleman, if the intention of his re 
 solve is that those who have not received three 
 copies heretofore, shall hereafter have them ? 
 
640 
 
 DISTRIBUTION OF DOCUMENTS. 
 
 [71st day. 
 
 Saturday,] 
 
 EARLE LELAND BATES UPTON. 
 
 [July 30th. 
 
 Mr. EARLE. It is simply to supply those 
 members with copies who cannot obtain them 
 under the order for the octavo edition. The whole 
 of that edition, in consequence of some members 
 taking so large a number from ten to twenty- 
 one copies has been exhausted, and there are 
 one hundred members of this Convention left 
 without any. The question is, whether we will 
 supply the twenty-one copies to the three hun 
 dred members, and leave the others without any ? 
 
 Mr. LELAND. The difficulty is, that this 
 order for copies of the Reports was passed after 
 the order was passed respecting papers. I signed 
 for all newspapers. Am I to have my papers 
 continued, and have the Reports too ? I think 
 the members should all be allowed three copies 
 of the Reports, alike. I should like the three 
 copies, if possible. 
 
 Mr. EARLE. I understand the gentleman 
 who has just taken his seat to say, then, that 
 those members who subscribed for the twenty- 
 one papers, and have got them, shall be entitled 
 also to just as many copies as those who did not 
 subscribe for any papers at all. My order only 
 goes to the extent of supplying three copies of the 
 Debates to those entitled to twenty- one papers, 
 but who have not got them. 
 
 Mr. BATES, of Plymouth. The simple fact 
 that the Convention have provided for the dispo 
 sition of the whole fifteen hundred copies of the 
 octavo edition, sets the matter at rest; and 110 
 order like that proposed by the gentleman from 
 Worcester can be of any effect, unless you rescind 
 the action of the Convention. In the first place, 
 fifteen hundred copies were ordered to be printed 
 and bound. Each member was to be supplied 
 with one, and each town with one copy, and the 
 remaining number of that fifteen hundred were 
 to be distributed by the Secretary of State, in the 
 same manner as the publications of the State 
 are gratuitously distributed. Then, the Conven 
 tion have voted that another fifteen hundred shall 
 be printed and put up for sale, the proceeds of 
 which shall be applied to defray the expenses, in 
 part, of the reporting and printing. That dis 
 poses of that three thousand. Now, let me say, 
 that the octavo edition is to cost some five or six 
 dollars, and the order contemplates that each 
 member may have three copies of those Debates, 
 in lieu of so many weekly newspapers. I hope 
 the proposition will be sent to the Special Com 
 mittee, and it can be there discussed. 
 
 Mr. UPTON, of Boston. I have no objection 
 to sending the matter to the Special Committee, 
 but it seems to me that a statement ought to be 
 made to the Convention of the facts connected 
 with these Reports. The Convention have passed 
 
 a vote to retain fifteen hundred copies for distri 
 bution. But how is it to be made ? In the first 
 place, the members of this Convention will take 
 four hundred and twenty copies ; the town clerks 
 will take three hundred and thirty, making in all 
 seven hundred and fifty, and there are less than 
 one hundred copies more, to be distributed under 
 ordinary distribution. So there will be left some 
 six or seven hundred copies, for which no pro 
 vision is made. 
 
 Now, Sir, this Convention passed an orde*, 
 giving to members of the Convention liberty to 
 hand their orders for papers, and also giving them, 
 the liberty to take one copy of the Debates, in 
 stead of a paper. Well, Sir, I should like to hav 
 some copies of the Debates. At the proper time, 
 I made out the order, and handed it to the Secre 
 tary, and I was informed by him that my order 
 could not be filled, that the Committee on Print 
 ing, or somebody else, had interfered. I did not 
 see fit to bring the matter before the Convention, 
 but I saw no reason or right why I should not 
 have a copy or two of the Proceedings of this 
 Convention. Here are members of the Conven 
 tion who receive twenty-one copies, while I, pur 
 suing the same course, tinder the same order, 
 have not one copy. These are the facts. I say 
 the members of the Convention who have not 
 received their copies, ought to be entitled to one 
 or more. I shall be perfectly satisfied to have the 
 resolution provide for only one copy. There are 
 a sufficient number of copies of the octavo edition 
 to comply with such a resolution, and I think it 
 would be better to distribute them now, to those 
 members who have not secured a copy, than to 
 leave them in the Secretary s office. 
 
 Mr. EARLE. I will state one fact to the 
 Convention, which I should like to have well un 
 derstood before this resolution is voted upon. 
 There are members who are taking from ten to 
 twenty- one copies of these Reports. If they 
 choose to say that they will give them up, or a 
 portion of them, then there would be copies 
 enough to supply each member with his propor 
 tion, while the other members would not tax 
 the State a cent for their papers. Now, if any 
 arrangement can be made by which the proper 
 officer can be authorized to distribute to each 
 member not more than three copies of this Report, 
 I shall be satisfied to leave it so ; and if such an 
 order should pass, I am willing to run my chance. 
 
 Mr. BATES. I desire, as chairman of the 
 Committee on Printing, to say a single word in 
 regard to the remarks of the gentleman from 
 Boston, (Mr. Upton). I submit it to this Con 
 vention, whose fault it was, that these members 
 were not supplied. The Committee reported, that 
 
71st day.] 
 
 DISTRIBUTION OF DOCUMENTS. 
 
 641 
 
 Saturday,] 
 
 WHITNEY UPTON HOOPER CHAPIN. 
 
 [July 30th. 
 
 in their opinion, fifteen hundred copies would be 
 sufficient. Members had the whole matter before 
 them, and if they wished to order more numbers, 
 that was the time to have done it. Some have 
 already ordered them, and others have left the 
 matter open, intending to order them at the close 
 of the Convention. The result is, that the num 
 bers have been taken up. The Committee, find 
 ing that there was not a sufficient supply, and 
 ascertaining, as well as they might, early in the 
 session, what number would be wanted, ordered 
 a reprint of the first edition, making it up to two 
 thousand copies. That, apparently, would meet 
 the demand. The matter was submitted to the 
 Convention, and now it is said that certain mem 
 bers cannot get copies. "Well, the Committee s 
 attention has never been called to the subject, and 
 nobody knows it until the end of the session. And 
 now it is proposed to go back and reprint the 
 whole matter, at an expense of four or five thou 
 sand dollars, or what is worse, take this octavo 
 edition, and turn it over to the members who 
 have neglected to supply themselves with news 
 papers. 
 
 Mr. WHITNEY, of Boylston. I think at the 
 early part of the session there was a great deal of 
 ignorance among the members as to the value of 
 these Reports, and members did not, for a consid 
 erable time, find out the value of them. Many 
 did not subscribe at all for them, who would have 
 done so had they known the worth of them. I 
 subscribed for four copies, and have obtained 
 them. But I am willing to yield up one of the 
 four, in order to make up the deficiency ; and I 
 hope the Committee will be commissioned to re 
 ceive voluntary contributions of copies from those 
 who have subscribed for them, and see how many 
 they can raise in that way. I subscribe one out 
 of my four. 
 
 The PRESIDENT. The Chair is requested to 
 state a fact in reply to the gentleman from Bos 
 ton. From information received by the officers 
 of the Convention, he is informed that the edition 
 is exhausted, and that they cannot be supplied 
 unless by ordering a reprint. 
 
 Mr. UPTON, of Boston. I did not intend to 
 make any reflection upon the Secretary of this 
 body. Very far from that. I was satisfied with 
 the explanation he gave me ; but I do not see 
 what the statement of the chairman of the Com 
 mittee, as to what they have done, has to do with 
 the rights of us individually. But as this matter 
 is to go to the Committee, I should like to have 
 those gentlemen who have subscribed for from ten 
 to twenty copies, stand up and vote, that those 
 who have the same rights as themselves, and have 
 no copies, should not be entitled to them. 
 
 Mr. HOOPER, of Fall River. It strikes me 
 that gentlemen have nobody to complain of but 
 themselves. Turn to the proceedings of the sec 
 ond day of the Convention, when the subject in 
 relation to newspapers was first brought up. I 
 offered the following resolve, for the purpose of 
 notifying members that they could obtain these 
 Reports if they chose : 
 
 Ordered, That members be authorized to select 
 copies of the Reports of the transactions of this 
 Convention, in lieu of an equal number of papers 
 authorized by the order of yesterday, at the option 
 of the members. 
 
 The next day, or a few days after, another order 
 was introduced, making a copy of the Reports 
 equivalent to a weekly newspaper. Here was an 
 opportunity, and a notice to each member to 
 choose which they pleased, and had they put down 
 their names for the copies of the Debates, a suffi 
 cient number would have been ordered, and they 
 would have received them. If they have neg 
 lected it, it is their own fault, and they ought not 
 to complain. I think it is unjust to make up the 
 deficiency by the distribution of the octavo bound 
 volume, in lieu of the quarter volume unbound. 
 I understand that to be the proposition. I should 
 like to have justice done in this matter. Every 
 member is sure of having one copy, by the stand 
 ing order. I should like to know how many 
 members have given orders, during the early part 
 of the session, which have not been supplied. I 
 hope the Committee will look at that subject and 
 report how many orders have been given which 
 have not been supplied. But I do not think it is 
 right, that men who have neglected the matter 
 until this time, should now come in and com 
 plain, when the whole trouble is attributable to 
 their own negligence. 
 
 Mr. CHAPIN, of Webster. I think it will 
 put an end to this whole discussion, if we will 
 add, as an amendment to the resolution of the 
 gentleman from Worcester, (Mr. Earle,) the 
 words : " And that every member receiving copies 
 of these Debates shall be required to read them." 
 [Laughter.] 
 
 The question was then taken, and the resolu 
 tion was referred to the Committee already or 
 dered to be appointed. 
 
 The PRESIDENT appointed the Committee, 
 consisting of the following gentlemen : 
 Messrs. Walker, of Brookfield, 
 
 Williams, " Taunton, 
 
 Schouler, " Boston, 
 
 White, " Quincy, 
 
 Phinney, for Chatham, 
 
 Parsons, of Lawrence, 
 
 Bird, " Walpole. 
 
642 
 
 RESOLUTION OF THANKS, &c. 
 
 [71st day. 
 
 Saturday,] 
 
 STETSON DAVIS BRIGGS. 
 
 [July 30th. 
 
 Law Martial. 
 
 Mr. STETSON, of Braintree, moved to take 
 from the table the resolve of the Committee on 
 the Bill of Rights, on the subject of the Law 
 Martial. 
 
 The motion was not agreed to. 
 
 Reconsideration. 
 
 Mr. STETSON then moved to take from the 
 table the motion of Mr. White, of Quincy, to 
 reconsider the vote by which the resolve upon 
 the subject of the House of Representatives was 
 passed. 
 
 The PRESIDENT said the papers were in the 
 hands of the Committee on Revision. 
 
 After an interval of half an hour, there being 
 no business before the Convention, 
 
 Mr. DAVIS, of Plymouth, asked if it would be 
 in order for the minority of a Committee to make 
 a Report. 
 
 The PRESIDENT replied in the negative, but 
 said the minority of a Committee might make a 
 statement of facts. 
 
 Mr. DAVIS. Then I desire, upon the part of 
 the minority of the Committee of which I am a 
 member, to make a statement of facts. 
 
 The PRESIDENT. There is no question be 
 fore the Convention. A Report of a Committee 
 must be in writing; but the minority cannot 
 report, unless their Report accompanies, or is 
 preceded, by that of the majority. The gentleman 
 can move to instruct the Committee to report, if 
 he chooses. 
 
 Mr. DAVIS. I ask the leave of the Conven 
 tion, to make a Report upon the part of the 
 minority of a Committee. A subject has been 
 presented to them, upon which the majority of 
 the Committee have not seen fit to report at all, 
 and the Convention have, therefore, had no op 
 portunity to act upon it. 
 
 The PRESIDENT. The gentleman must see 
 that the minority of a Committee cannot report, 
 unless that Report accompanies that of the major 
 ity. The gentleman, as a member of that Com 
 mittee, or as a member of the Convention, may 
 move to instruct the Committee to report, or he 
 may submit a proposition ; but he cannot present 
 a Report as representing the minority of the Com 
 mittee. 
 
 Mr. DAVIS. I am aware that it is not strictly 
 in order ; but I thought I might ask the leave of 
 the Convention to present that Report. In the 
 early part of the session, a resolve was passed on 
 the motion of the gentleman from Natick, (Mr. 
 Wilson,) to instruct the Committee on the Frame 
 of Government, to inquire into the expediency 
 of providing in the Constitution, that no member 
 
 of either branch of the legislature, during the 
 term for which he was elected, should be appointed 
 by the governor to any office in the Common 
 wealth. It is a matter about which I presume 
 there can be no difference of opinion in the Con 
 vention. I desire now, upon the part of the minor 
 ity of the Committee, to make a Report upon that 
 resolution. 
 
 The PRESIDENT. The Chair has already 
 ruled that the minority of the Committee cannot 
 make a Report. The gentleman had the right to 
 move to instruct that Committee to report, and he 
 did make that motion upon a former occasion, 
 but the motion was not agreed to by the Conven 
 tion. He therefore thinks it is now not in order 
 to make any motion in relation to the subject. 
 
 Mr. DAVIS. I rise to a question of order. 
 The order introduced by the gentleman from Na 
 tick covers more ground than the Report of the 
 minority of the Committee, which I propose to 
 present. I therefore submit that it is not the same 
 matter which the Convention refused to instruct 
 the Committee to report upon. 
 
 The PRESIDENT. If the order covered more 
 ground than the Report, it covered the same 
 ground, and the Chair therefore overrules the 
 point of order. 
 
 [The President here vacated the chair, tempo 
 rarily, and it was occupied by Mr. Hillard, of 
 Boston.] 
 
 Resolution of Thanks to the President. 
 
 Mr. BRIGGS, of Pittsfield. I rise, Sir, to per 
 form an act of courtesy usual upon such occasions, 
 to the presiding officer of this Convention. I am 
 informed that the parliamentary usages of the 
 body which for more than half a century has 
 assembled in this venerable hall, makes it proper 
 for me to do it, and I do it with pleasure. I do 
 it at this time, Sir, because it will be necessary 
 for me to leave town this afternoon. The other 
 part of the ceremony will be done upon the proper 
 occasion. 
 
 Mr. President : before sending this resolution to 
 the Chair, allow me to say, that the work which 
 the people sent us here to do, is almost completed. 
 We are soon to return to that honored constitu 
 ency whose servants we are, to render an account 
 of our stewardship. As an organized body, con 
 stituted for a specific and important purpose, we 
 shall soon be dissolved into our original element. 
 
 " Like bubbles on the sea of matter borne, 
 We rise, we break, and to that sea return." 
 
 But, Sir, that great sea of humanity, what we 
 call the people, will continue to heave and roll its 
 deep waves forever. The muse of history, through 
 
71st day.] 
 
 RESOLUTION OF THANKS, &c. 
 
 643 
 
 Saturday,] 
 
 BRIGGS UNDERWOOD WILSON BOUTWELL. 
 
 [July 30th. 
 
 the medium of these truthful reporters, has written 
 down our words. These faithful secretaries have 
 recorded our acts, and the recording angel has 
 carried to the court of Heaven, and placed upon 
 its records, the motives by which we have been 
 actuated. These are all sealed up to us, for the 
 judgment of the great day. Whether right or 
 wrong, they now belong to our past history, and 
 we must stand by them in future judgment. To 
 those who have been associated together as we 
 have been, in common labors and responsibilities, 
 the moment of separation is one of intense interest. 
 After weeks and months of daily official and per 
 sonal intercourse, we look into each others faces, 
 many of us, for the last time. For the last time 
 we have felt the grasp of friendly hands, and for 
 the last time heard the tones of pleasant and 
 cheering voices. 
 
 Now it is that the excitements and agitations of 
 political differences, clashing opinions, and stirring 
 debates, are subdued and hushed, and the kindlier 
 and better feelings of our nature gently swell up 
 and take possession of the heart. It should be so 
 I am glad it is so. The partisan is lost in the 
 man the antagonist disappears and we look upon 
 a brother. 
 
 I am sure these generous feelings at this mo 
 ment animate the breasts of the four hundred 
 delegates now before me listening to my poor 
 words. I hope no one of us will carry from this 
 place any unfriendly feelings towards any other 
 one. It gives me great pleasure to say that I 
 have never seen a session of a large deliberative 
 assembly pass away with such general and uniform 
 courtesy, decorum, and propriety of conduct, as 
 has been observed in this body. Without extend 
 ing these remarks, permit me to add that I look 
 upon these intelligent and manly faces, and I 
 fear upon many for the last time, with no emo 
 tions but those of regret, respect, and good will. 
 I shall carry away with me no ruffled or irritated 
 feelings towards any member of this honored as 
 sembly. The interest of this moment of separa 
 tion, to my own mind, is deepened, by the fact 
 that I neither wish or expect, ever again to be a 
 member of any deliberative body, whilst I live. 
 
 The general health which has prevailed amongst 
 us, is a subject of profoundest gratitude to God. 
 Of the four hundred and twenty delegates elected 
 to this Convention on the seventh of March last, 
 there has been but one death. It is sad, indeed, 
 to reflect, that " AVC are not all here." We shall 
 soon return to our homes, and greet and be greeted 
 by the voice and hand of affection and love. But 
 there is one lonely mansion made desolate by the 
 death of one of our honored associates, where no 
 such greeting will be had. I know the sympathy 
 
 of all these hearts will gather round that mourn 
 ful home, and that earnest prayers will go up to 
 the God of the widow and the orphan, that his 
 choicest blessings may now and ever be poured 
 out upon its stricken inmates. 
 
 I offer, Mr. President, the following resolution, 
 which I doubt not will receive the hearty and 
 unanimous concurrence of this Convention : 
 
 Resolved, That the thanks of this Convention 
 be given to N. P. BANKS, Jr., for the dignified, 
 fair, and able manner in which he has presided 
 over its deliberations. 
 
 The resolution was unanimously adopted. 
 
 Mr. UNDERWOOD, of Milford. I desire to 
 know what is now before the Convention ? 
 
 The PRESIDENT. [Mr. Hillard, of Boston, 
 being in the Chair.] The Chair is unable to an 
 swer the gentleman at this moment. The Orders 
 of the Day have all been disposed of. 
 
 Mr. UNDERWOOD. I understand it is not 
 expected that the Committee on Revision will be 
 able to make their Report before three o clock 
 this afternoon. Under these circumstances, I 
 would suggest that we take a recess until that 
 time. 
 
 Mr. WILSON, of Natick. I think the Con 
 vention had better not take a recess for the pres 
 ent. I understand the Committee on Revision 
 may possibly report in the course of fifteen or 
 twenty minutes. I would suggest that it would 
 be better to wait for a half an hour, and if they 
 do not report by that time, we can then judge 
 better to what time it will be best to adjourn. 
 
 Mr. UNDERWOOD. I understand that Com 
 mittee will not be ready to report until three 
 o clock, but if there is any business which can be 
 brought before the Convention, I have no wish to 
 adjourn. 
 
 Mr. WILSON. If the Committee are not to 
 report until that time, I would move that the 
 Convention take a recess until three o clock. 
 
 Report from a Committee. 
 
 Mr. BOUTWELL, for Berlin, from the Com 
 mittee on Revision, submitted a Report, asking 
 that the Committee be discharged from the far 
 ther consideration of a resolve referred to them, 
 adopted by the Convention on the 30th of May, 
 on the mode in which the governor shall be 
 chosen by the legislature, in case of the non- elec 
 tion of that officer by the people. 
 
 The PRESIDENT. The question is on dis 
 charging the Committee. 
 
 Mr. BOUTWELL. I have only to say that 
 the Committee, in the examination of the resolu 
 tions passed by the Convention, found a resolu- 
 
644 
 
 REPORT FROM A COMMITTEE. 
 
 [71st day. 
 
 Saturday,] 
 
 LORD PARKER BOUTWELL. 
 
 [July 30th. 
 
 tion like that just read, which was passed on the 
 30th of May. Resolutions were passed, subse 
 quently, that in case of the failure of the people 
 to elect, the House should select three out of the 
 number of persons voted for having the highest 
 number of votes, if so many persons were voted 
 for, whose names should be sent to the Senate, 
 and from these names the Senate should select 
 one. There being an apparent conflict between 
 the two resolutions, the Committee ask to be 
 discharged. 
 
 The question was taken on the acceptance of 
 the Report, and it was accepted. 
 
 Mr. LORD. I desire to know whether it is 
 not necessary to suspend the rules, to reconsider a 
 vote by which that resolve was adopted ? whether 
 having adopted a resolution, it is competent for 
 a mere majority to reject it ? J think that it is 
 necessary, in order to prevent that resolution from 
 going into the Constitution, to reconsider. 
 
 The PRESIDENT. The Chair is of opinion 
 that it is not necessary, but that the action of the 
 Convention in the acceptance of the Report at 
 this time, is of such a kind, as may be had with 
 out a motion to reconsider. 
 
 Mr. LORD. The Committee on Revision are 
 discharged from the consideration of that resolu 
 tion, but has not that resolution been passed by 
 this Convention ? Have we not voted that it is 
 expedient to amend the Constitution in that 
 mode, just as much without that vote to discharge 
 the Committee as with it ? Suppose the Com 
 mittee on Revision had come in, and, instead of 
 asking to be discharged from the farther consid 
 eration of the resolution, had asked to be dis 
 charged from the farther consideration of the 
 entire subject, and they are discharged r Then 
 where are the amendments? They are still 
 adopted. This resolution was adopted. That 
 resolution stands adopted as the resolution of the 
 Convention. Now it seems to me entirely clear, 
 that it is our duty to reconsider the vote by which 
 that resolution was adopted ; and, it seems to me, 
 also, that a suspension of the rules is required to 
 dispose of it. Because, otherwise, a bare major 
 ity of this Convention can undo all that has been 
 done, notwithstanding the rule shall not be re 
 considered. I do not understand that the fact 
 that the Committee asks to be discharged, changes 
 the case at all, because it is just as competent for 
 a majority of this Convention to discharge, upon 
 a motion of any individual, as for the Committee 
 to Report and ask to be discharged. 
 
 Mr. PARKER, of Cambridge. It appears to 
 me, that the conclusion of the gentleman from 
 Salem must be regarded as correct : that the action 
 of the Convention at this time, has merely taken 
 
 the subject from the hands of the Committee, so 
 that it is again in Convention. But the question 
 which arises in my mind, is, whether the subse 
 quent action of the Convention, passing a resolu 
 tion different and entirely inconsistent with this, 
 does not operate as an abrogation of the previous 
 action, in such a manner that it is not necessary 
 to take farther action upon the subject. It would 
 seem as though that would operate as a repeal, 
 as annulling the resolution which the Committee 
 are now discharged from, so that it cannot stand ; 
 and, therefore, we need not take any farther 
 action. 
 
 Mr. LORD. When this resolution was under 
 consideration, the question of order was raised ; 
 that it was not in order, because the Convention 
 had acted upon the subject-matter of it. The 
 President of the Convention then decided, that it 
 was not a point of order ; that it was not in con 
 flict with that rule; that it was a question of 
 consistency to be determined by the Convention. 
 We have, therefore, determined that it was not 
 inconsistent ; because, otherwise, they would not 
 have adopted it. They must be presumed to 
 have decided that it was not inconsistent. If 
 this can stand in that mode, then a bare majority, 
 on a motion to discharge the Revising Committee 
 from the consideration of any amendment, can 
 defeat an amendment. 
 
 The PRESIDENT. The Chair would suggest 
 to the gentleman from Salem, that there is no 
 motion before the Convention. 
 
 Mr. LORD. I move that the rules be sus 
 pended, so that the resolution may be taken up 
 for reconsideration, with a view to its rejection. 
 
 Mr. BOUTWELL. I think it that is too late 
 to reconsider a vote taken on the thirtieth of May 
 last. 
 
 Mr. LORD. What I desire, is, to move a sus 
 pension of that part of the rule which limits a 
 motion to reconsider to the next day after the 
 resolution was passed. 
 
 Mr. BOUTWELL. I suppose that, practically, 
 whatever course we take, we shall come to the 
 same result : that a majority of this Convention 
 will decide whether the resolution shall stand or 
 shall not stand. I see no other result, whether 
 the rule be suspended or not. If the rule be 
 suspended, and a motion is made to reconsider, 
 that question, of course, can be decided by a ma 
 jority. I think there is no principle involved in 
 this. Here is an apparent conflict between the 
 action of the Convention at one time, and its 
 action at another. I think that, in fairness, we 
 should let the action on this first resolution, sub 
 side. 
 
 Mr. LORD. I think that in all fairness we 
 
71st day.] 
 
 REPORT FROM A COMMITTEE. 
 
 645 
 
 Saturday,] 
 
 MORTON HILLARD LORD BRIGGS BUTLER. 
 
 [July 30th. 
 
 should stand by this which we understood to be 
 the well defined view of the Convention. But at 
 the same time, I think we should do it regularly. 
 I do not make this motion to have it defeat the 
 resolution, but because I wish to have the matter 
 conducted with order, regularity, and propriety. 
 I think that is the only course, and I made the 
 motion myself, because I wanted to show, that, 
 so far as I was concerned, having raised the 
 question myself, I had a disposition to have the 
 matter settled just exactly as it ought to be set 
 tled with propriety. I think that, in order to 
 have it stand right, the Convention must reject 
 the resolution. And to reject it, we must recon 
 sider, and to reconsider, it is necessary to suspend 
 that part of the rule which limits a motion to 
 reconsider to the next day. If gentlemen sustain 
 the motion to suspend, then it is in the power of 
 the Convention to make a reconsideration, and 
 then it is in the power of a majority to do as they 
 please with the resolution. 
 
 Mr. MORTON, of Taunton. I see no occa 
 sion for passing this vote of reconsideration, look 
 ing back for so great a length of time as this ; 
 because I think on every principle of law and 
 constitution, the thing stands perfectly well. Early 
 in the session, I do not remember the date, a 
 resolve passed this body respecting amendments 
 to the Constitution, so that if there was a failure 
 to elect a governor, he should be chosen by a 
 joint ballot of the two Houses. Afterwards there 
 was a resolution passed, that in filling a vacancy, 
 when there was no choice by the people, the 
 House should select three from the number of 
 persons having the highest number of votes, and 
 out of them the Senate should select one. This 
 was the deliberate action of the Convention. It 
 seems to me the whole matter is perfectly settled, 
 because it is entirely apparent that the second 
 resolution is utterly inconsistent with the first ; 
 they cannot both stand. One or the other is 
 annihilated. Which is it? I believe that the 
 rule is well settled that the last action of the Con 
 vention shall prevail, and that any subsequent 
 action, whether of law or constitution, repeals all 
 laws inconsistent with it. The adoption of the 
 second resolution being entirely inconsistent 
 with the first, was just as much a repeal of the 
 first, or a rescinding of it, as if done in so many 
 words. Therefore, I think the first, having been 
 repealed, there is nothing to reconsider, that all 
 stands perfectly well ; and therefore we have no 
 need to pass a rule allowing to move a reconsid 
 eration. 
 
 Mr. HILLARD, of Boston. It wiU be ob 
 served that the adoption of the resolutions referred 
 to is simply an expression of opinion on the part 
 
 of the Convention. On one occasion, the Con 
 vention voted that it was expedient to amend the 
 Constitution in one manner, and on a subsequent 
 occasion they voted that it was inexpedient to 
 amend the Constitution in that manner. The 
 Committee to whom the resolutions were referred, 
 seeing their inconsistency with each other, ask to 
 be discharged from the consideration of that 
 resolution which it is understood it is wished 
 should not prevail. Now, what is the action of 
 the Convention to be, in case any retrograde steps 
 are to be taken ? We must first reconsider the 
 vote by which it was referred to the Committee. 
 Both resolutions are in their hands, unless we 
 accept the Report. Therefore, I do not see how it 
 is now in the power of the Convention, because, 
 as we have accepted the Report, the Convention 
 has no power over it until we reconsider the vote 
 by which it was put into the hands of the Com 
 mittee. 
 
 Mr. LORD. The Convention has discharged 
 that Committee, as I understand. 
 
 The PRESIDENT. The papers are not in the 
 possession of the Convention at present. The 
 motion to reconsider is not necessary. 
 
 Mr. LORD. I would ask if it would be com 
 petent for a bare majority to discharge a Com 
 mittee from any other branch of this subject, and 
 thereby defeat the amendment which has been 
 already passed ? 
 
 The PRESIDENT. The Chair is not to give 
 opinions in advance, but will rule upon cases as 
 they occur. 
 
 Mr. WILSON, of Natick, moved that the Con 
 vention adjourn, to meet at three o clock this 
 afternoon. 
 
 Mr. BRIGGS. I hope my friend will with 
 draw that motion for a few moments. 
 
 Mr. WILSON withdrew it. 
 
 Mr. BRIGGS. I wish to state to members of 
 the Convention, that our friend the Chaplain has 
 been desirous, during the session, to have half an 
 hour at some time, to speak to us upon the sub 
 ject of education, in its various forms. There is 
 now more than half an hour before the earliest 
 time when we have been in the habit of adjourn 
 ing ; and I would respectfully request those gen 
 tlemen who have not duties elsewhere that call 
 them away, to remain after the adjournment, and 
 listen to what he has to say. It will be but a 
 short address. 
 
 Mr. BUTLER. There is now no other busi 
 ness before the Convention ; and knowing that it 
 is nearly impossible to get the Report of the Revis 
 ing Committee here at an hour sufficiently early 
 to enable us to deal with it tlu s afternoon, and 
 that therefore it will be necessary for us to have 
 
646 
 
 PAY ROLL, &c. 
 
 [71st day. 
 
 Saturday," 
 
 LIVERMORE LORD WILSON. 
 
 [July 30th. 
 
 a session on another day, I move that when the 
 Convention adjourns to-day, it adjourn to meet on 
 Monday morning next, at ten o clock. 
 The motion was agreed to. 
 
 Pay Roll. 
 
 Mr. LIVERMORE, of Cambridge. I wish to 
 make a statement in relation to the pay roll. 
 The pay roll is now made up, with the exception 
 of one name, and the governor and council will 
 be in session at one o clock to-day. The gov 
 ernor, and some members of the council, have 
 engagements on Monday, and will not be able to 
 be here on that day to draw warrants, if the Con 
 vention should adjourn until Monday without 
 having a session this afternoon. The pay roll is 
 made up, and ready to be passed upon, and the 
 warrants can be drawn this afternoon if we have 
 a session ; and it seems to me that it will be 
 hardly worth while to have the governor and coun 
 cil come together again, which they could not do 
 before Tuesday or Wednesday. 
 
 Mr. LORD, of Salem, moved that the Com 
 mittee on the Pay Roll be instructed to make up 
 and pay the account of Hon. HENRY WILSON, at 
 the rate of three dollars per pay in addition to the 
 ordinary compensation, during the time that he 
 acted as President pro tempore. 
 
 Mr. WILSO N. I thank my friend from Salem 
 for his kindness in making that proposition, but 
 I must beg leave to say to him and to the mem 
 bers of the Convention, that under the circum 
 stances, I do not think it would be right or proper 
 for the Convention either to pass this, or for me 
 to take it. I should be sorry to have such a vote 
 passed, and I hope that my friend will withdraw 
 the motion. It was only for a day or two that I 
 was in the chair performing those duties ; if it 
 had been a month or six weeks, it would have 
 altered the case. 
 
 The question being put, the motion was agreed 
 to. 
 
 Mr. BUTLER then moved that the Convention 
 adjourn. 
 
 Mr. WILSON. As the governor will not be 
 here on Monday, I think we had better meet this 
 afternoon, and see about the pay roll. 
 
 The question being put, on the motion to ad 
 journ, it was not agreed to. 
 
 Reconsideration. 
 
 Mr. LIVERMORE. I move to reconsider the 
 vote by which the Convention agreed to adjourn 
 until ten o clock on Monday. 
 
 The motion was agreed to. 
 
 The question then recurred on the motion that 
 when the Convention adjourn, it be to meet on 
 
 Monday at ten o clock ; and it was not agreed 
 to. 
 
 On motion, the Convention then adjourned. 
 
 AFTERNOON SESSION. 
 
 The Convention reassembled, and was called to 
 order by the President at three o clock, P. M. 
 
 Mr. WILSON, of Natick. I am informed, 
 Mr. President, that it will be impossible for the 
 Committee on Revision to report this afternoon, 
 and it will be useless for us to remain here. 
 They will be able to report on Monday, and I 
 therefore hope that we shall adjourn now, and 
 meet at ten o clock on Monday. 
 
 Mr. LIVERMORE, of Cambridge. I beg leave 
 to state to the Convention, that in the course of a 
 few minutes the pay roll will be made up, and 
 the Committee on the Pay Roll will be ready to 
 make their Report. The pay roll has been made 
 up, in pursuance of the order of the Convention, 
 including Monday next, and the governor has 
 summoned the council, so that they will be ready 
 this afternoon to draw the warrants for the pay 
 of members. The governor and some members 
 of the council have engagements on Monday, so 
 that they will not be able to draw warrants at 
 that time. They have come here from a distance, 
 some of them, for the purpose of advising the 
 governor in relation to this matter ; and it appears 
 to me that the warrants can be drawn to-day as 
 well as to have the matter deferred until next 
 week. The Convention have voted that no 
 member shall receive any pay after Monday 
 next, and it seems to me to be wholly useless to 
 postpone action upon the pay roll to a future 
 time, because it is not certain that the governor 
 and council will be in session again for a number 
 of days ; and until the warrants are drawn, the 
 members of the Convention cannot receive their 
 pay. I do not suppose that if the warrants should 
 be drawn this afternoon, the members would be 
 able to get their pay before Monday, for the office 
 of the Treasurer usually closes at an early hour 
 in the afternoon. I presume members could not 
 receive their pay and leave this afternoon, nor 
 would they wish to leave the Convention without 
 a quorum, or without the proper number of mem 
 bers present to finish up the business of the ses 
 sion ; but it seems to me that if members under 
 stand this, they will not vote to adjourn until 
 after action is had upon the pay roll. It will be 
 but a very short time before the Committee will 
 be ready to make their Report to the Convention. 
 
 Mr. WILSON. I move that when the Con 
 vention adjourns, it adjourn to meet on Monday 
 next at ten o clock. 
 
72d day.] 
 
 PAY ROLL, &c. 
 
 647 
 
 Monday,] 
 
 LXVBBMOBB GRISWOLD OLIVER KETES WALKER. 
 
 [August 1st. 
 
 The question being taken, the motion was 
 agreed to. 
 
 After a few moments, no business being pre 
 sented, Mr. WILSON moved that the Convention 
 adjourn. 
 
 The question being taken, on a division, there 
 were ayes, 94 ; noes, 67 so the motion was 
 agreed to, and the PRESIDENT declared the 
 Convention adjourned until Monday morning at 
 ten o clock. 
 
 Mr. LIVERMORE. Is it not in order to call 
 for the yeas and nays on that motion ? 
 
 The PRESIDENT. The Convention has ad 
 journed. 
 
 MONDAY, August 1, 1853. 
 The Convention assembled at ten o clock, A. M. 
 Prayer by the Chaplain. 
 The journal of Saturday was read. 
 
 Pay Roll. 
 
 Mr. LIVERMORE, of Cambridge, from the 
 Committee on the Pay Roll, submitted the follow 
 ing Report : 
 
 COMMONWEALTH OF MASSACHUSETTS. 
 
 In Convention, August 1, 1853. 
 The Committee on the Pay Roll, in compliance 
 with an order of the Convention, directing them 
 to make up the pay roll, have attended to that 
 duty, in accordance with a resolve passed on 
 the 28th day of June last, and report the sum 
 herewith, amounting to $114,092, and also re 
 port the accompanying order. 
 
 For the Committee, 
 ISAAC LIVERMORE, Chairman. 
 
 Ordered, That the Pay Roll of the Convention, 
 as reported by the Committee, in accordance with 
 the resolve of the 28th of June last, and the order 
 of July 29th, be transmitted by the Secretary, to 
 the Auditor of Accounts, and that he be requested 
 to obtain from the Governor a warrant upon the 
 treasury of the Commonwealth, to authorize the 
 payment thereof, and notify the Convention when 
 the warrant has been drawn. 
 
 Mr. GRISWOLD, for Erving, moved that the 
 Report be laid on the table. 
 The motion was agreed to. 
 
 Personal Explanation. 
 
 Mr. OLIVER, of Lawrence. I ask permission 
 of the Convention to make a personal explana 
 tion. In the early part of the session, I was 
 under the impression that each proposition sub 
 mitted to the consideration of the House, would 
 have three separate readings prior to the final 
 
 action thereon, and that there would be, of course, 
 as many opportunities for discussion and amend 
 ment. In this, I was in error, and laboring 
 under this misapprehension, I gave a negative 
 vote in a case in which it was not my intention 
 so to do, on the final passage. I allude to the 
 resolve on the secret ballot. I was very desirous 
 of pressing the same amendments which I offered 
 when it was under consideration, had another 
 opportunity been offered. Voting as I did, I 
 stand upon the record in direct opposition to my 
 real sentiments and intentions, upon the general 
 question. I therefore make this explanation of 
 my affirmative intention, that I may, thereby, 
 appear in the proper light. 
 
 Protest in relation to Rights of Colored Citizens* 
 Mr. KEYES, for Abington. Mr. President: 
 A paper has been placed in my hands, purport 
 ing to be a protest against the action of this Con 
 vention, with the request that I would present it 
 here, and move that it be placed upon the records 
 of this body, if it is in order to make that motion. 
 I will state, in a few words, what it is. It is a 
 protest from a number of colored persons, in the 
 name and behalf of the colored population of 
 Massachusetts, who, claiming to be citizens of 
 Massachusetts, under our laws, have been perma 
 nently disqualified from holding any position in 
 the militia ; which is, in fact, declaring that they 
 are not citizens. They have stated this in very 
 respectful language ; and I will read the reason 
 why they want this petition placed upon the 
 records of the Convention. They say : " We 
 respectfully ask that this protest may be placed 
 upon the records of the Convention, and pub 
 lished with the proceedings of the Convention, 
 that the stigma may not rest upon our memory, 
 of having tamely acquiesced in a proscription 
 equally at war with the American Constitution, 
 with the Massachusetts Bill of Rights, and the 
 claims of human nature." I therefore ask, in 
 compliance with their request, that the protest 
 may be read, and then that it be placed upon the 
 records. 
 
 The protest was read. 
 
 The question being put on ordering the protest 
 to be placed upon the records of the Convention, 
 on a division, there were ayes, 97 ; noes, 66 so 
 the motion was agreed to. 
 
 Distribution of Documents. 
 
 Mr. WALKER, of North Brookfield, from the 
 Special Committee, to whom were referred two 
 orders of the Convention of July 30th, in rela 
 tion to the distribution of the documents of the 
 Convention, reported the following resolves : 
 
648 
 
 DISTRIBUTION OF DOCUMENTS, &c. 
 
 [72d day. 
 
 Monday,] 
 
 EAKLE BOUTWELL. 
 
 [August 1st. 
 
 1. Resolved, that White Potter be instructed 
 to deliver, without additional charge, the remain 
 ing numbers of the quarto edition of the Jour 
 nal of Debates, at such places in Boston, as the 
 members shall respectively order. 
 
 2. Resolved, That each member of this Conven 
 tion be furnished with one copy of the Journal 
 of the Debates, of the octavo edition, additionally 
 to the one heretofore ordered. 
 
 3. Resolved, That the Messenger be directed to 
 deliver, without additional cost, the copies of the 
 Debates aforesaid, together with the Journal of 
 the Convention, heretofore ordered, with the com 
 pleted file of the documents belonging to each 
 member, at such place in Boston, as the members 
 shall respectively order. And also to send, in 
 the usual manner, the copies of the Journal and 
 Debates to the towns, cities, and public bodies, as 
 ordered by the Convention, and also to send to 
 each town or city, its quota, in proportion to pop 
 ulation, of copies of the New Constitution, here 
 tofore ordered to be published. 
 
 Mr. E ARLE, of Worcester. I move to amend 
 the second resolve, by adding thereto the follow 
 ing words : 
 
 Provided, That no member shall be entitled to 
 more than three copies, including those received 
 instead of newspapers. 
 
 Mr. EARLE. This Report, I presume, was 
 made upon an order which was submitted by me, 
 and referred to the Committee, on Saturday, the 
 object of which, was simply an act of justice to that 
 portion of the members of the Convention who 
 had not been able to obtain the copies to which they 
 were entitled under a former order ; while some 
 members have received, under a former order, as 
 I stated on that occasion, various numbers, from 
 ten to twenty- one copies. Now, this resolve, in 
 stead of providing for those who have not been 
 able to obtain the copies to which they were en 
 titled, provides that those who have received 
 twenty-one copies, shall have three copies more, 
 while those who are entitled to twenty- one copies, 
 and cannot get them, shall have but three copies 
 in all ; and this is the justice which the Commit 
 tee propose in that resolve. If that is to stand 
 just as it is reported, I shall vote against the 
 whole. I was entitled to six copies, under the 
 former order, and other members were entitled to 
 different numbers, which they have not been able 
 to get. It makes no difference to me, personally, 
 whether I get these or not. I am entitled to one 
 copy, as every other member is, under another 
 order, and that will satisfy all my wants ; still, I 
 had concluded to take six copies, and distribute 
 them among some of my friends ; others have 
 got theirs, and have distributed them. My ob 
 ject was simply to remedy the defect, and give 
 some measure of justice to those who had not 
 
 taken their copies. I cannot imagine any reason 
 why this resolve should be brought in as it is, 
 giving those who have already received ten, fif 
 teen, or twenty copies, three copies more. The 
 other day, when I offered that order, I was met 
 at once by the exclamation, from various quarters, 
 that it never would do to give three copies to 
 members who were entitled to eight or ten, be 
 cause it would exhaust the treasury of the State, 
 and besides that, it would exhaust all the copies, 
 so that future governors and councillors would 
 have no copies to distribute among their friends. 
 Then, they could do no such thing ; but now, it 
 is proposed not only to give two or three copies 
 to those who are justly entitled to ten or twenty, 
 but in addition to that, to give those who have 
 had ten or twenty copies already, just as many as 
 we have. We do not ask for justice we do not 
 ask for what we are entitled to, under a former 
 vote, to put us on an equality with those who 
 have already got theirs ; but if we cannot have 
 this for which we do ask, without voting an ad 
 ditional number to those who have already had fif 
 teen or twenty, I, for one, will give up what I am 
 entitled to, and be content with the single copy 
 that I shall get under the other order. 
 
 Mr. BOUTWELL. I move to lay this Report 
 upon the table, in order that we may have an 
 opportunity to consider it a little, and in the mean 
 time proceed to the more important and pressing 
 business before us. 
 
 The motion was agreed to. 
 
 Revised Constitution. 
 
 Mr. BOUTWELL, from the Committee ap 
 pointed to prepare the amendments to be submit 
 ted to the people, reported a series of resolves, 
 accompanied by a form of a revised Constitution. 
 
 The resolves were read, as follows : 
 
 In the Convention of the Delegates of the people 
 assembled in Boston, on the first Wednesday of 
 May, in the year 1853, for the purpose of re 
 vising and amending the Constitution of this 
 Commonwealth. 
 
 Resolved, That the revised Constitution, pro 
 posed by said Convention, be submitted to the 
 people of the Commonwealth for their ratifica 
 tion and adoption, in the manner following, 
 viz. : 
 
 I. The Preamble ; A Declaration of the 
 Rights of the Inhabitants of the Commonwealth 
 of Massachusetts; The Frame of Government, 
 with its Preamble and Chapters numbered One, 
 Two, Three, Four, Five, Six, Seven, Eight, Nine, 
 Ten, Eleven, Twelve, Thirteen, and Fourteen, 
 entitled, respectively General Court, Senate, 
 House of Representatives, Governor, Lieuten 
 ant- Governor ,Council, Secretary, Treasurer, 
 Auditor, and Attorney- General, Judiciary Pow- 
 
72d day.] 
 
 REVISED CONSTITUTION. 
 
 649 
 
 Monday,] 
 
 RESOLUTIONS. 
 
 [August 1st. 
 
 er, Qualifications of Voters and Elections, Oaths 
 and Subscriptions, Militia, The University at 
 Cambridge, the School Fund and the Encourage 
 ment of Literature, Miscellaneous Provisions, 
 Revisions and Amendments of the Constitution 
 as a distinct proposition, numbered " One." 
 
 If this proposition, so submitted, shall be rati 
 fied and adopted by a majority of the legal voters 
 of the Commonwealth, present and voting there 
 on, at meetings dully called, then the same shall 
 be the Constitution of the Commonwealth of 
 Massachusetts. 
 
 II. The provision respecting the granting of 
 the writ of Habeas Corpus, as a proposition, 
 numbered " Two." 
 
 If this proposition shall be ratified and adopt 
 ed, it shall be an addition to the provision respect 
 ing the Habeas Corpus. 
 
 III. The provision respecting the rights of 
 juries in criminal trials, as a proposition, num 
 bered Three." 
 
 If this proposition be ratified and adopted, it 
 shall be an addition to the article in the Declara 
 tion of Rights, respecting the rights of persons 
 charged with crimes. 
 
 IV. The provision respecting claims against 
 the Commonwealth, as a proposition, numbered 
 " Four." 
 
 If this proposition be ratified and adopted, it 
 shall be an addition to Article XI., of the Dec 
 laration of Rights. 
 
 V. The provision respecting imprisonment 
 for debt, as a proposition, numbered " Five." 
 
 If this proposition be adopted, it shall be an 
 addition to the Article in the Declaration of 
 Rights respecting excessive bail and fines. 
 
 VI. The provision respecting sectarian schools, 
 as a proposition, numbered " Six." 
 
 If this proposition be ratified and adopted, it 
 shall be an addition to Article IV. of Chapter 
 XII., entitled, "The University at Cambridge, 
 The School Fund, and the Encouragement of 
 Literature." If proposition numbered " One " 
 shall not be adopted, it shall be added as an 
 amendment to the Constitution. 
 
 VII. The provision respecting Corporations, 
 as a proposition, numbered " Seven." 
 
 VIII. The provision respecting Banks and 
 Banking, as a proposition, numbered " Eight." 
 
 If the propositions numbered " Seven " and 
 " Eight " be ratified and confirmed, they shall be 
 added as separate articles, or if either of them be 
 ratified and confirmed, as an article in Chapter 
 XIII., entitled, " Miscellaneous Provisions." 
 
 If proposition numbered " One " be not ratified 
 and confirmed, they shall be added as amend 
 ments to the Constitution. 
 
 Resolved, That at the meetings for the election 
 of Governor, Senators, and Representatives to the 
 General Court, to be holden on the second Mon 
 day of November, in the year one thousand eight 
 hundred and fifty-three, the qualified voters of 
 the several towns and cities shall vote by ballot 
 upon each of the propositions aforesaid, for or 
 against the same, which ballots shall be inclosed 
 within a sealed envelope according to the pro 
 visions of an Act of this Commonwealth, passed 
 443 
 
 on the twenty-second day of May, in the year 
 eighteen hundred and fifty-one, and an Act passed 
 the twentieth day of May, in the year eighteen 
 hundred and fifty- two, and no ballots not so in 
 closed shall be received. And said votes shall be 
 received, sorted, counted, declared, and recorded, 
 in open meeting, in the same manner as is by law 
 provided in reference to votes for governor, and a 
 true copy of the record of said votes, attested by 
 the selectmen and town clerk of each of the sev 
 eral towns, and the mayor and aldermen and city 
 clerk of each of the several cities, shall be sealed 
 up by said selectmen and mayor and aldermen, 
 and directed to the Secretary of the Common 
 wealth, with a superscription expressing the pur 
 port of the contents thereof, and delivered to the 
 sheriff of the county within fifteen days after said 
 meetings, to be by him transmitted to the Secre 
 tary s office, on or before the third Monday of 
 December next ; or, the said selectmen and mayor 
 and aldermen shall themselves transmit the same 
 to the Secretary s office, on or before the day last 
 aforesaid. 
 
 Resolved, That the Secretary shall deliver said 
 copies so transmitted to him, to a Committee of 
 this Convention consisting of 
 who shall assemble at the State House on the 
 third Monday of December next, and open the 
 same, and examine and count the votes, so re 
 turned ; and if it shall appear that either of said 
 propositions has been adopted by a majority of 
 votes, then the proposition so adopted shall be 
 come and be either the whole or a portion of the 
 Constitution of this Commonwealth, as herein 
 before provided, and the said Committee shall 
 promulgate the results of said votes upon each of 
 said propositions, by causing the same to be pub 
 lished in those newspapers in which the laws are 
 now published ; and shall also notify the Gov 
 ernor and Legislature, as soon as may be, of the 
 said results ; and the Governor shall forthwith 
 make public proclamation of the fact of the 
 adoption of either or all of said propositions, as 
 the whole or as parts of the Constitution of this 
 Commonwealth. 
 
 Resolved, That each of said propositions shall 
 be considered as a whole by itself, to be adopted 
 in the whole, or rejected in the whole. And 
 every voter may vote on each proposition by its 
 appropriate number, without specifying in his 
 ballot any reference to the subject of the propo 
 sition, and by writing opposite to the number of 
 each proposition the word Yes or No, but the 
 vote on all of the propositions shall be written or 
 printed on one ballot, in siibstance as follows : 
 
 Constitutional Propositions. 
 Proposition No. I., . . Yes or No. 
 Proposition No. II., . Yes or No. 
 
 Proposition No. III., . . Yes or No. 
 And to Proposition No. VIII., Yes or No. 
 
 Resolved, That a printed copy of these Resolu 
 tions, with the several Constitutional Propositions 
 annexed, shall be attested by the Secretaries of 
 the Convention, and transmitted by them, as soon 
 as may be, to the selectmen of each town, and 
 the mayor and aldermen of each city, in the 
 
650 
 
 REVISED CONSTITUTION. 
 
 [72d day. 
 
 Monday,] 
 
 BOTJTWELL LORD SCHOULER SARGENT. 
 
 [August 1st. 
 
 Commonwealth, whose duty it shall be to insert 
 a proper article in reference to the voting upon 
 said propositions, in the warrant calling the meet 
 ings aforesaid, on the second Monday of Novem 
 ber next. 
 
 Mr. BOUT WELL, for Berlin. It will be of 
 course apparent to the Convention, that two main 
 matters are before us. One is, to perfect the ac 
 tion of the Committee, and to take the judgment 
 of the Convention as to whether the Committee 
 has faithfully and impartially incorporated the 
 views of the Convention into the various propo 
 sitions ; and having done th .t, in the next place, 
 to determine the mode of submitting the revised 
 matter to the people. I suppose, from the intima 
 tions and assurances that have been given upon all 
 sides, so far as I know, that it is the desire of all 
 that the Constitution should be, so far as it can 
 be made, a perfect instrument ; we all agree upon 
 that, whether we agree to the propositions con 
 tained in the Constitution, or not ; therefore, I 
 believe I may say, that it is the desire of the Com 
 mittee that the Convention should first go to \vork 
 to perfect what is here presented, and that the 
 mode of submitting it to the people should be 
 considered as a subsequent matter. With that 
 view in my own mind, and trusting that it may 
 be acceptable to the Convention, I move that the 
 first resolve be so divided that the subject matter 
 of proposition number one be first considered, 
 and then that the Convention proceed to consider 
 the subsequent propositions in their order re 
 spectively. 
 
 The PRESIDENT. The Chair desires to sub 
 mit a preliminary question to the Convention. 
 The first resolve covers in its terms several prop 
 ositions with regard to the form of the Constitu 
 tion presented by the Committee. It may be 
 desirable that the Constitution should be read to 
 the Convention ; but the Chair will take the 
 judgment of the Convention. If no member de 
 sires to have it read, the reading will be dispensed 
 with. 
 
 Mr. BOUTWELL. It wouldseem to be proper 
 that the Secretary of the Convention should read 
 the first proposition from beginning to end, and 
 that opportunity should be given for the Conven 
 tion to pass upon each article of each chapter. I 
 hope one chapter will be read at a time, and each 
 article considered. 
 
 The PRESIDENT. A single preliminary 
 question presents itself to the Chair. Although 
 the Convention have provided that a resolve in 
 volving the merits of the Constitution, should 
 have two separate readings, the Chair supposes 
 that on this occasion that rule may be dispensed 
 with. As in other cases where no objection is 
 
 made, the Chair will consider that the rule is 
 suspended by general consent, and will put the 
 question on the final passage of the resolves. 
 
 Mr. LORD, of Salem. If we examine this 
 new Constitution, I think we shall find cases 
 where the Revising Committee, as a matter of 
 necessity, doubtless, have altered the Constitution 
 in relation to matters that the Convention has 
 never passed upon. I will give, as an illustration, 
 the removal of justices of the peace upon the ad 
 dress of the two Houses of the legislature. This 
 Convention have passed upon that subject, and 
 they have provided a different mode for the re 
 moval than by means of address. By the old 
 Constitution there was not that power over jus 
 tices of the peace, and yet the Revising Committee 
 have given that power ; and I submit that that is 
 an amendment to the Constitution. I think it 
 will turn out in quite a variety of instances, that the 
 Constitution has been amended by the Revising 
 Committee in parts which have not been acted 
 on by the Convention. 
 
 The PRESIDENT. When the question is 
 raised upon any point of that kind in its order, 
 the Chair will rule upon it. 
 
 Mr. LORD. If they are real alterations of 
 the Constitution, they certainly require two read 
 ings under the rule ; and the question should not 
 now be upon the final passage. 
 
 The PRESIDENT. The Chair will take the 
 direction of the Convention upon this question. 
 
 Mr. SCHOULER, of Boston. I desire to state, 
 for the information of members, that those parts 
 of the old Constitution which are unchanged, are 
 printed in our copies "leaded;" those parts 
 which are entirely new are set " solid ;" while 
 those parts of old sections which have been 
 changed are in italics. 
 
 Mr. SARGENT, of Cambridge. It would 
 seem to me to be proper that the Secretary should 
 read the resolves that have been passed by the 
 Convention in connection with the provisions 
 reported by the Revising Committee, in order 
 that we may ascertain whether they have been 
 correctly incorporated. 
 
 The first resolve was then read, and the ques 
 tion stated upon its adoption. 
 
 Mr. BOUTWELL requested that the Preamble 
 and Declaration of Rights, in the first chapter, 
 might be read. 
 
 The PRESIDENT. The details of each chap 
 ter will be read and considered separately, before 
 the Convention proceed to take the question upon 
 them. 
 
 Mr. LORD. I think, before that is done, it 
 will be most convenient to know upon what 
 principle the Committee have separated several 
 
72d day.] 
 
 REVISED CONSTITUTION. 
 
 651 
 
 Monday,] 
 
 LORD BOUTWELL. 
 
 [August 1st. 
 
 articles and placed them by themselves to be act 
 ed upon separately, while the bulk is to be acted 
 upon together. If there is any principle upon 
 which the Committee have acted, I desire to have 
 the chairman state what that principle is, so that 
 if, by the adoption of that principle, more propo 
 sitions can be submitted separately than the Com 
 mittee have reported, I think they should be so 
 submitted. If, however, they have adopted a 
 principle which includes some of these proposi 
 tions which they have submitted separately, then 
 such propositions should be included. 
 
 What I desire to know is, upon what principle 
 it is that these seven particular and specific prop 
 ositions are taken away from the body of the 
 Constitution, and placed each by itself, and why 
 the Constitution, otherwise, is put to the people 
 in bulk ? Of course, Sir, there must have been 
 a reason for this, and that I want to get at. 
 
 The PRESIDENT. The gentleman will allow 
 the Chair to suggest that it would first be better 
 to determine whether the Constitution, as report 
 ed by the Committee, should be read or not, and 
 after that, the whole question opened by him will 
 be before the Convention. 
 
 Mr. LORD. I was about to wait, but it was 
 suggested by the gentleman for Berlin to take up 
 the different parts separately. 
 
 The PRESIDENT. The Chair would suggest 
 that the question being submitted, upon the re 
 quest of the gentleman for Berlin, upon the first 
 proposition, that will be considered first. But 
 the question immediately before us is, whether 
 the Constitution shall be read. The Secretary 
 will read that portion of the revised Constitution 
 reported by the Committee, which is embraced in 
 so much of their Report as is numbered " One." 
 
 Mr. BOUTWELL. I desire that it shall be 
 read. 
 
 The Secretary accordingly proceeded to read, 
 and read so much of the revised Constitution as is 
 contained under the heads " Preamble," and " A 
 Declaration of the Rights of the Inhabitants of 
 the Commonwealth of Massachusetts," as fol 
 lows : 
 
 PREAMBLE. 
 
 The end of the institution, maintenance, and 
 administration of government, is to secure the ex 
 istence of the body politic ; to protect it ; and to 
 furnish the individuals who compose it, with the 
 power of enjoying, in safety and tranquillity, their 
 natural rights and the blessings of life : and when 
 ever these great objects are not obtained, the peo 
 ple have a right to alter the government, and to 
 take measures necessary for their safety, pros 
 perity and happiness. 
 
 The body politic is formed by a voluntary asso 
 ciation of individuals ; it 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. It is the duty of the people, 
 therefore, in framing a Constitution of govern 
 ment, to provide for an equitable mode of making 
 laws, as well as for an impartial interpretation, 
 and a faithful execution of them, that every man 
 may, at all times, find his security in them. 
 
 We, therefore, the people of Massachusetts, ac 
 knowledging, with grateful hearts, the goodness 
 of the great Legislator of the universe, in affording 
 us, in the course of his providence, an oppor 
 tunity, deliberately and peaceably, without fraud, 
 violence, or surprise, of entering into an original, 
 explicit, and solemn compact with each other ; 
 and of forming a new Constitution of civil gov 
 ernment for ourselves and posterity ; and de 
 voutly imploring his direction in so interesting a 
 design, do agree upon, ordain, and establish, the 
 following Declaration of Rights and Frame of 
 Government, as the CONSTITUTION of the COMMON 
 WEALTH OF MASSACHUSETTS. 
 
 A DECLARATION 
 
 Of the Rights of the Inhabitants of the Common- 
 wealth of Massachusetts. 
 
 ARTICLE 1. All men are born free and equal, 
 and have certain natural, essential, and unaliena- 
 ble rights ; among which may be reckoned the 
 right of enjoying and defending their lives and 
 liberties ; that of acquiring, possessing, and pro 
 tecting property ; in fine, that of seeking and ob 
 taining their safety and happiness. 
 
 ART. 2. It is the right as well as the duty of 
 all men in society, publicly, and at stated seasons, 
 to worship the SUPREME BEING, the great Creator 
 and Preserver of the universe. And no subject 
 shall be hurt, molested, or restrained, in his per 
 son, liberty, or estate, for worshipping God in the 
 manner and season most agreeable to the dictates 
 of his own conscience ; or for his religious profes 
 sion or sentiments ; provided he doth not disturb 
 the public peace, or obstruct others in their re 
 ligious worship. 
 
 ART. 3. As the public worship of God, and 
 instructions in piety, religion, and morality, pro 
 mote the happiness and prosperity of a people, 
 and the security of a republican government ; 
 therefore, the several religious societies of this 
 Commonwealth, whether corporate or unincor- 
 porate, at any meeting legally warned and holden 
 for that purpose, shall ever have the right to elect 
 their pastors or religious teachers, to contract 
 with them for their support, to raise money for 
 erecting and repairing houses for public worship, 
 for the maintenance of religious instruction, and 
 for the payment of necessary expenses : And all 
 persons belonging to any religious society shall be 
 taken and held to be members, until they shall 
 file with the clerk of such society a written notice 
 declaring the dissolution of their membership, 
 and thenceforth shall not be liable for any grant 
 or contract which may be thereafter made or en 
 tered into by such society : And all religious sects 
 and denominations, demeaning themselves peace 
 ably, and as good citizens of the Commonwealth, 
 
652 
 
 REVISED CONSTITUTION. 
 
 [72d day. 
 
 Monday, 
 
 BILL OP RIGHTS. 
 
 [August 1st. 
 
 shall be equally under the protection of the law ; 
 and no subordination of any one sect or denomi 
 nation to another shall ever be established by law. 
 
 ART. 4. The people of this Commonwealth 
 have the sole and exclusive right of governing 
 themselves, as a free, sovereign, and independent 
 State ; and do, and forever hereafter shall, exer 
 cise and enjoy every power, jurisdiction, and 
 right, which is not, or may not hereafter, be by 
 them expressly delegated to the United States of 
 America, in Congress assembled. 
 
 ART. o. All power residing originally in the 
 people, and being derived from them, the several 
 magistrates and officers of government, vested 
 with authority, whether legislative, executive, or 
 judicial, are their substitutes and agents, and are 
 at all times accountable to them. 
 
 ART. 6. No man, nor corporation, or associa 
 tion of men, have any other title to obtain advan 
 tages, or particular and exclusive privileges, dis 
 tinct from those of the community, than what 
 arises from the consideration of services rendered 
 to the public ; and this title being in nature 
 neither hereditary, nor transmissible to children, 
 or descendants, or relations by blood, the idea of 
 a man being born a magistrate, lawgiver, or judge, 
 is absurd and unnatural. 
 
 ART. 7. Government is instituted for the com 
 mon good ; for the protection, safety, prosperity, 
 and happiness of the people ; and not for the 
 profit, honor, or private interest of any one man, 
 family, or class of men : Therefore the people 
 alone have an incontestable, unalienable, and 
 indefeasible right to institute government ; and 
 to reform, alter, or totally change the same, when 
 their protection, safety, prosperity and happiness 
 require it. 
 
 ART. 8. In order to prevent those who are 
 vested with authority from becoming oppressors, 
 the people have a right, at such periods, and in 
 such manner, as they shall establish by their 
 frame of government, to cause their public offi 
 cers to return to private life ; and to fill up va 
 cant places by certain and regular elections and 
 appointments. 
 
 ART. 9. All elections ought to be free ; and 
 all the inhabitants of this Commonwealth, having 
 such qualifications as they shall establisb by their 
 frame of government, have an equal right to elect 
 officers, and to be elected, for public employments. 
 
 ART. 10. Each individual of the society has a 
 right to be protected by it in the enjoyment of his 
 life, liberty, and property, according to standing 
 laws. He is obliged, consequently, to contribute 
 his share to the expense of this protection ; to 
 give his personal service, or an equivalent, when 
 necessary : but no part of the property of any 
 individual can, with justice, be taken from him, 
 or applied to public uses, without his own con 
 sent, or that of the representative body of the 
 people. In fine, the people of this Common 
 wealth are not controllable by any other laws 
 than those to which their constitutional represen 
 tative body have given their consent. And when 
 ever the public exigencies require that the property 
 of any individual should be appropriated to public 
 uses, he shall receive a reasonable compensation 
 therefor. 
 
 ART. 11. Every subject of the Commonwealth 
 ought to find a certain remedy, by having recourse 
 to the laws, for all injuries or wrongs which he 
 may receive in bis person, property, or character. 
 He ought to obtain right and justice freely, and 
 without being obliged to purchase it ; completely, 
 and without any denial ; promptly, and without 
 delay ; conformably to the laws. 
 
 ART. 12. The privilege and benefit of the writ 
 of habeas corpus shall be enjoyed, in this Com 
 monwealth, in the most free, easy, cheap, expedi 
 tious, and ample manner ; and shall not be sus 
 pended by the legislature, except upon the most 
 urgent and pressing occasions, and for a limited 
 time not exceeding twelve months. 
 
 ART. 13. No subject shall be held to answer 
 for any crimes or oifence, until the same is fully 
 and plainly, substantially and formally, described 
 to him ; or be compelled to accuse, or furnish 
 evidence against himself : and every subject shall 
 have a right to produce all proofs, that may be 
 favorable to him ; to meet the witnesses against 
 him face to face, and to be fully heard in his de 
 fence by himself, or his counsel, at his election ; 
 and no subject shall be arrested, imprisoned, de 
 spoiled, or deprived of his property, immunities, 
 or privileges, put out of the protection of the law, 
 exiled, or deprived of his life, liberty, or estate, 
 but by the judgment of his peers, or the law of 
 the land. And the legislature shall not make any 
 law that shall subject any person to a capital or 
 infamous punishment, excepting for the govern 
 ment of the army and navy, without trial by jury. 
 
 ART. 14. In criminal prosecxitions, the verifi 
 cation of facts in the vicinity where they happen, is 
 one of the greatest securities of the life, liberty, 
 and property of the citizen. 
 
 ART. Id. Every subject has a right to be se 
 cure from all unreasonable searches and seizures 
 of his person, his houses, his papers, and all his 
 possessions. All warrants, therefore, are contrary 
 to this right, if the cause or foundation of them 
 be not previously supported by oath or affirma 
 tion ; and if the order in the warrant to a civil 
 officer, to make search in suspected places, or to 
 arrest one or more suspected persons, or to seize 
 their property, be not accompanied with a special 
 designation of the persons or objects of search, 
 arrest, or seizure ; and no warrant ought to be 
 issued but in cases, and with the formalities, pre 
 scribed by the laws. 
 
 ART. 16. In all controversies concerning prop 
 erty, and in all suits between two or more per 
 sons, except in cases in which it has heretofore 
 been otherways used and practised, the parties 
 have a right to a trial by jury; and tins method 
 of procedure shall be held sacred, unless, in causes 
 arising on the high seas, and such as relate to 
 mariners wages, the Legislature shall hereafter 
 find it necessary to alter it. 
 
 ART. 17. The liberty of the press is essential 
 to the security of freedom in a state : it ought 
 not, therefore, to be restrained in this Common 
 wealth. 
 
 ART. 18. The people have a right to keep and 
 to bear arms for the common defence ; and, as in 
 time of peace, armies are dangerous to liberty, 
 they ought not to be maintained without the con- 
 
72d day.] 
 
 REVISED CONSTITUTION. 
 
 653 
 
 Monday,] 
 
 BOUTWELL. 
 
 [August 1st. 
 
 sent of the Legislature ; and the military power 
 shall always be held in an exact subordination to 
 the civil authority, and be governed by it. 
 
 ART. 19. A frequent recurrence to the funda 
 mental principles of the Constitution, and a con 
 stant adherence to those of piety, justice, mode 
 ration, temperance, industry, and frugality, are 
 absolutely necessary to preserve the advantages 
 of liberty, and to maintain a free government. 
 The people ought, consequently, to have a partic 
 ular attention to all those principles, in the choice 
 of their officers and representatives; and they 
 have a right to require of their lawgivers and 
 magistrates, an exact and constant observance of 
 them, in the formation and execution of the laws 
 necessary for the good administration of the Com 
 monwealth. 
 
 ART. 20. The people have a right, in an orderly 
 and peaceable manner, to assemble to consult 
 upon the common good ; give instructions to 
 their representatives ; and to request of the legis 
 lative body, by the way of addresses, petitions, or 
 remonstrances, redress of the wrongs done them, 
 and of the grievances they suffer. 
 
 ART. 21. The power of suspending the laws, 
 or the execution of the laws, ought never to be 
 exercised but by the Legislature, or by authority 
 derived from it, to be exercised in such particular 
 cases only as the Legislature shall expressly pro 
 vide for. 
 
 ART. 22. The freedom of deliberation, speech 
 and debate, in either House of the Legislature, is 
 so essential to the rights of the people, that it 
 cannot be the foundation of any accusation or 
 prosecution, action or complaint, in any other 
 court or place whatsoever. 
 
 ART. 23. The Legislature ought frequently to 
 assemble for the redress of grievances, for correct 
 ing, strengthening, and confirming the laws, and 
 for making new laws, as the common good may 
 require. 
 
 AUT. 24. No subsidy, charge, tax, impost, or 
 duties, ought to be established, fixed, laid, or 
 levied, under any pretext whatsoever, without the 
 consent of the people, or their representatives in 
 the Legislature. 
 
 ART. 25. Laws made to punish for actions 
 done before the existence of such laws, and which 
 have not been declared crimes by preceding laws, 
 are unjust, oppressive, and inconsistent with the 
 fundamental principles of a free government. 
 
 ART. 26. No subject ought, in any case, or in 
 any time, to be declared guilty of treason or felony 
 by the Legislature. 
 
 ART. 27. No magistrate or court of law shall 
 demand excessive bail or sureties, impose exces 
 sive fines, or inflict cruel or unusual punishments. 
 
 ART. 28. In time of peace, no soldier ought to 
 be quartered in any house without the consent of 
 the owner ; and in time of war, such quarters 
 ought not to be made but by the civil magistrate, 
 in a manner ordained by the Legislature. 
 
 ART. 29. No person can in any case be sub 
 jected to law martial, or to any penalties or pains, 
 by virtue of that law, except those employed in 
 the army or navy, and except the militia in 
 actual service, but by authority of the Legis 
 lature. 
 
 ART. 30. It is essential to the preservation of 
 the rights of every individual, his life, liberty, 
 property and character, that there be an impartial 
 interpretation of the laws, and administration of 
 justice. 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 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 Con 
 stitution, and should have honorable salaries which 
 shall not be diminished during their continuance in 
 office. 
 
 ART. 31. In the government of this Common 
 wealth, the legislative department shall never 
 exercise the executive and judicial powers, or 
 either of them : the executive shall never exercise 
 the legislative and judicial powers, or either of 
 them : the judicial shall never exercise the legis 
 lative and executive powers, or either of them : 
 to the end it may be a government of laws and 
 not of men. 
 
 Mr. BOUTWELL, for Berlin. The idea 
 which I had in my mind when I introduced the 
 Report, was this : that by general consent, we 
 might go through with the Report of the Com 
 mittee, chapter by chapter, and perfect it. If 
 there are errors anywhere in the Report sub 
 mitted by the Committee, they should be corrected 
 as we go along from chapter to chapter, waiting, 
 after the reading of each chapter, for such sugges 
 tions as gentlemen shall be pleased to make, the 
 main question, all the while being upon the 
 adoption of the proposition numbered "one." I 
 am not desirous that the main question should be 
 put until a fair chance shall have been given to 
 every gentleman to express his opinion upon each 
 and every individual thing in the revised Consti 
 tution. 
 
 Now, in regard to that portion which the Sec 
 retary has read, I may say that there are two 
 changes only, in the Declaration of Rights. Article 
 twelve of the Bill of Rights, by a vote of the Con 
 vention, found in Document No. 28, has been 
 transferred from the sixth chapter of the present 
 Constitution, being the chapter upon oaths and 
 subscriptions, and made to constitute article 
 twelve of the Bill of Rights, in precisely the same 
 form. 
 
 In regard to the thirtieth article of the Declara 
 tion of Rights, some few changes have been made. 
 Those are expressed in italics, and result from the 
 change in the tenure of the judicial office, that 
 being now during good behavior, but hereafter, 
 by the tenure established by this Constitution, if 
 adopted by the people, it will be ten years. 
 Another change relates to the salaries of the ju 
 dicial officers, and this provides, in accordance 
 with the vote of the Convention, that they should 
 
654 
 
 REVISED CONSTITUTION. 
 
 [72d day. 
 
 Monday," 
 
 SCHOULER HUBBARD LoRD BoUTWELL. 
 
 [August 1st. 
 
 have honorable salaries, which shall not be dimin 
 ished during their continuance in office. That 
 change is placed here in direct conformity to the 
 language of the resolve of the Convention, which 
 the Committee took for their guide. 
 
 So far as I know, that is all that need to be 
 said at present. 
 
 Mr. SCHOULER, of Boston. I move an 
 amendment to the fifteenth article of the Bill of 
 Rights. 
 
 The PRESIDENT. The Chair desires to 
 know whether there is a general consent that the 
 Preamble and Bill of Rights, which have been 
 read, shall be considered by themselves ? 
 
 Mr. HUBBARD, of Boston. I rise, Mr. Pres 
 ident, to object to that course. It seems to me 
 that there is a preliminary question which should 
 first be disposed of. If the Convention determine 
 or shall determine to put each proposition to the 
 people separate and distinct from each other, and 
 by itself, then this work of revising these amend 
 ments of the Constitution, becomes wholly super 
 fluous. I suppose the question of the gentleman 
 from Salem, (Mr. Lord,) a short time since, 
 tended to the presentation of that preliminary 
 question, that AVB might know upon what princi 
 ple this Report has been made. I supposed that 
 after the Preamble and Declaration of Rights 
 should have been read, we should have had some 
 explanation of that principle from some member 
 of the Committee who had in charge this work 
 of revising and putting the amendments and the 
 Constitution in form. 
 
 The PRESIDENT. The Chair desires to state 
 that there is no rule of the Convention which 
 justifies the Chair in stating the question as has 
 been proposed by the gentleman representing 
 Berlin, (Mr. Boutwell). The question is upon 
 so much of the Report as is numbered " one," 
 and upon so much of the Constitution as is cov 
 ered by that part of the Report. 
 
 Mr. HUBBARD. I object to the subject being 
 considered in the way which has been suggested 
 by the gentleman who represents Berlin, until 
 after the Convention shall have decided and de 
 termined in what form they intend to send the 
 Constitution out to the people. 
 
 The PRESIDENT. The gentleman from 
 Boston will see that, after entering upon the de 
 bate of this first, if the previous question should 
 be moved, and the main question should be or 
 dered to be put, there will be no opportunity of 
 perfecting the different propositions, covered by 
 the other resolves, in the way of amendments. 
 It is to avoid that difficulty that the Chair sug 
 gests the unanimous consent of the Convention 
 to the consideration of the Report in the man 
 
 ner indicated by the gentleman representing Ber 
 lin. 
 
 Mr. LORD, of Salem. The resolve numbered 
 " one" covers the entire Constitution, unamended, 
 as well as amended. 
 
 The PRESIDENT. The Chair understands 
 that the first resolve covers so much of the Con 
 stitution reported by the Committee, as extends 
 to and includes the article upon the revision and 
 amendments of the Constitution, and which covers 
 the first thirty- eight pages of the printed Report. 
 
 Mr. BOUTWELL, for Berlin. I believe it is 
 a rule of this Convention, that any member may 
 call for a division of the question. I did call for 
 that division, in such a manner that the question 
 can be taken upon that part of the Report which 
 is numbered " one." But the gentleman from 
 Salem is debating a question not now before us. 
 
 The PRESIDENT. The first question is upon 
 agreeing to the first proposition in the first resolve. 
 
 Mr. LORD. I understand the Chair to 
 have ruled that the first question is upon the 
 first resolve, and that if the previous question 
 should now be moved, the question would have 
 to be taken upon the first resolve as a whole, 
 which, as I said before, embraces nearly the whole 
 Constitution which we intend to put forth to the 
 people ; all except some seven short, distinct 
 propositions, which this Committee recommend to 
 be submitted as separate questions, but which 
 occupy only two pages out of the forty of this 
 printed Report. 
 
 The PRESIDENT. The Chair stated, or in 
 tended to state, that the question is upon the first 
 proposition of the first resolve. 
 
 Mr. LORD. That being so, Sir, I like the 
 form of proceeding suggested by the gentleman 
 representing Berlin, (Mr. Boutwell,) very well, 
 but at the same time it seems to me that as a 
 preliminary question, we ought to find out in the 
 first place the principle upon which the Report 
 of the Committee is based, to see whether we are 
 willing to adopt that proposition, and whether the 
 Report is in accordance with that principle which 
 they have adopted in making it. We ought to 
 be informed why they have separated from the 
 body of the Constitution these seven specific sub 
 jects, which form the end of their Report, to be 
 submitted separately to the people, in preference 
 to other subjects ? Why they chose to report 
 that seven particular subjects, rather than any 
 seven other, should be separately considered by 
 the people ? Of course that has been done upon 
 some principle, as we are not to suppose that the 
 Committee acted without some general principle 
 to guide them. There must have been a reason 
 for selecting these seven, rather than seven other, 
 
72d day.] 
 
 REVISED CONSTITUTION. 
 
 655 
 
 Monday,] 
 
 SCHOULEB BOUTWELL. 
 
 [August 1st. 
 
 and I desire to know what that reason is. If the 
 gentleman will tell us what that principle of 
 action is, it may be one which will commend 
 itself to the judgment of the entire Convention. 
 It may be also that in laying down the principle, 
 the Convention will discover that certain of the 
 propositions which are placed in the body of the 
 Constitution by the Committee, and which are 
 not in the present Constitution, ought to be placed 
 in separate articles, and submitted separately to 
 the people. 
 
 The PRESIDENT. The Chair desires to know 
 whether there is any objection to the consideration 
 of the Bill of Hights by way of amendments ? 
 
 There was no objection. 
 
 Mr. SCHOULER, of Boston. I ask whether 
 it is in order to move to insert the words which 
 are contained under head "four " of the Report 
 of the Committee, and which are placed there to 
 be submitted to the people separately, in the article 
 of the Bill of Rights to which it refers, viz. : that 
 concerning excessive bail and fines ? Whether it 
 is not competent for, and in the power of the 
 Convention to make that article of the Bill of 
 Rights complete, and send it out to the people 
 complete ? If such an amendment is in order, I 
 move it. 
 
 The PRESIDENT. The Chair thinks the 
 motion is not in order, as that question is not 
 before the Conveiifton. The question is upon the 
 Declaration of Rights. 
 
 Mr. SCHOULER. My wish is, to amend the 
 Declaration of Rights, by making the subject to 
 which I have referred a part of the twenty- seventh 
 article of the Bill of Rights. The words which I 
 propose to transfer to the Bill of Rights are these, 
 which are found under head "four" of the Re 
 port of the Committee : 
 
 No person shall be imprisoned for any debt 
 hereafter contracted, unless in cases of fraud. 
 
 The PRESIDENT. The Chair misappre 
 hended the motion of the gentleman. The motion 
 is in order. 
 
 Mr. SCHOULER. Then I make that motion. 
 
 Mr. BOUTWELL, for Berlin. I have but a 
 very few words to say in reference to the motion 
 of the gentleman from Boston (Mr. Schouler). 
 It is, of course, well known to the Convention, 
 that our Constitution, bearing date in 1780, has 
 been subjected to many important amendments 
 some thirteen in all from that period down to 
 this time. The consequence of the adoption of 
 these amendments is, that many parts which 
 stand in the Constitution, and are printed with it, 
 have been annulled. Now, then, the chief object 
 of the Committee was to present to this Conven 
 
 tion, and to the people of the Commonwealth of 
 Massachusetts, a systematic form of government ; 
 that it should contain the principle contained in 
 the system established in 1780 ; and that, more 
 over, it should be, so far as it was to be considered as 
 a machine, a perfect machine. Having, therefore, 
 proceeded with that view, we took what remained 
 of the original Constitution of 1780, what remained 
 of the amendments adopted since 1780, and such 
 of the resolutions which have been adopted by 
 this Convention as were essential to the har 
 monious operation of the system of government 
 which we proposed to establish. We considered 
 that one great object to be obtained by this Con 
 vention, was to give to the people of this Com 
 monwealth an intelligible and systematic organic 
 law ; and therefore, to carry out that purpose, we 
 have been obliged to depart from that principle 
 which we desired in the outset to recognize and 
 act upon, and that was, that this Convention 
 should allow the people of the Commonwealth to 
 express a distinct opinion upon every separate 
 proposition. But we found that this was abso 
 lutely impossible. We stand to-day very much 
 in the condition of a people establishing anew a 
 system of government. Therefore, then, we have 
 placed in proposition number " one," all that 
 portion of the Constitution of 1780 which re 
 mains, the subsequent amendments, and so much 
 and many of the resolutions adopted by this Con 
 vention as were necessary to perfect and make 
 harmonious and systematic the government which 
 we propose to establish. 
 
 Now, then, upon the principle that it is practi 
 cable to allow the people to express an opinion 
 separately, upon matters not essential to the har 
 mony of the system of government, we have 
 submitted to this Convention, and upon their 
 judgment they are to submit to the people, cer 
 tain separate propositions upon which the public 
 sentiment is divided. Those propositions may 
 be either rejected or adopted, without disturbing, 
 in any degree, the harmony of the system of gov 
 ernment which we have here contained in propo 
 sition " one." 
 
 Now, in regard to this proposition, it is not 
 necessary to the working of the government. 
 We have passed such a resolution. It may 
 be that a majority of the people of the Com 
 monwealth are in favor of it ; but they have a 
 right to express an independent opinion upon it, 
 because it is not one which is essential to the 
 system of government which we have here. 
 That, I think, could not be said with equal 
 justice of any provision which the Committee 
 have incorporated into proposition number 
 "one." 
 
656 
 
 REVISED CONSTITUTION. 
 
 [72d day. 
 
 Monday,] 
 
 BOUTWELL SCHOULER. 
 
 [August 1st. 
 
 Therefore, acting upon that rule, we decided to 
 present to the Convention, and through them to 
 the people, the different propositions which are 
 contained under the heads marked from " one " 
 to " eight," inclusive. Number " one " con 
 taining the general system of government, and 
 numbers from "two" to "eight, inclusive, 
 containing independent propositions which may 
 be separately submitted to the people. If re 
 jected, the system of government is not disturbed ; 
 if adopted, they become incorporated into the 
 Constitution. The government goes on either 
 way. 
 
 Therefore, it was the judgment of the Com 
 mittee that, under the circumstances, it was a 
 part of their duty to submit a systematic form of 
 government to the people, perfect in itself, and 
 then, independent questions, which, if the judg 
 ment of the people shall be found to be in favor 
 of them, will become a part of the Constitution ; 
 and which, if lost, will cause no disturbance of 
 the system. It is upon such grounds that we 
 have made the Report. 
 
 Mr. SCHOULER, of Boston. I understand 
 the argument of the gentleman for Berlin to be, 
 that these seven different propositions are to be 
 left out of the Constitution, and are to be given 
 to the people separately to vote upon them ; and 
 if the majority of the people agree to them, or to 
 either one of them, then those which are agreed 
 to, become a part of the Constitution ; and his 
 ground seems to be, that they can be left out of 
 the Constitution, and still the Constitution will 
 be a perfect and full declaration of rights, and the 
 proper fundamental law of the Commonwealth. 
 Now, Sir, I will ask that gentleman, and the 
 members of this Convention, why some of these 
 articles and particularly the fifth one, concern 
 ing imprisonment for debt should be left out in 
 this way, when at the same time we find in the 
 next chapter, iipon the general court, it is stated 
 in article third, that the " compensation of mem 
 bers of the general court shall be established by 
 standing laws ; but no act increasing the compen 
 sation shall apply to the general court which 
 passes such act ; and no compensation shall be 
 allowed for attendance of members at any one 
 session for a longer time than one hundred days." 
 
 Suppose that was struck out of the Constitu 
 tion, and the Constitution should remain just as 
 it is, leaving the legislature to sit as long as they 
 have a mind to, and to fix their own pay as they 
 have done ever since 1780. Is that not as dis 
 tinct and separate a proposition to be submitted 
 to the people, as the article in relation to im 
 prisonment for debt, or the article in relation to 
 habeas corpus, which are both left out ? Here is 
 
 another provision in article six, declaring that the 
 " general court shall have power to make laws 
 regulating marriage, divorce and alimony, but 
 shall in no case decree a divorce, or hear and de 
 termine any causes touching the validity of the 
 marriage contract." Suppose that was left out, 
 what harm would be done ? Sir, that is a new 
 feature in the Constitution which is reported here ; 
 and I will ask gentlemen of the Convention why 
 these should be considered as of so much conse 
 quence as to go into the Constitution, while that 
 in regard to imprisonment for debt is left 
 out ? It seems to me, that the Constitution, 
 in relation to that part of our legislative power, 
 would be just as perfect if these were left out, 
 and it should remain in the same way that it 
 has remained ever since 1780. A little farther 
 on we find article thirteen, in the same chapter, 
 which says : "In all elections by the general 
 court, or either branch thereof, a majority of 
 votes shall be required, and the members shall 
 vote viva voce." This is considered of so much 
 importance that it is put into the Constitution, 
 while the provisions in regard to the right of 
 habeas corpus, and imprisonment for debt, and 
 other matters, are left out. I can see no prin 
 ciple in this thing ; and I think, if we want to 
 strengthen the Constitution, we had better put 
 this provision about imprisonment for debt into 
 it. I do not desire to occupy the time of the 
 Convention, and so I will close by saying that I 
 hope the amendment will be adopted. 
 
 Mr. BOUTWELL, for Berlin. I have not a 
 word to say about the amendment ; but we should 
 consider, that if this Constitution is adopted, it 
 ought to be as perfect an instrument as possible. 
 Suppose it should be adopted as it stands, except 
 ing that the third article of the chapter on the 
 general court should be left out ; we should then 
 have no provision in the Constitution, of any sort, 
 in reference to the compensation of members, un 
 less we put the Constitution in such a form as we 
 shall have to do, if we follow the suggestions of the 
 gentleman from Boston, that only those parts of 
 the existing form of government shall be annulled, 
 which are inconsistent with what we propose. 
 The consequence will be, that this will lead us to 
 a position upon which no government can stand. 
 That provision of the existing Constitution will 
 be found on page 80, and is as follows : " The 
 expenses of travelling to the general assembly, 
 and returning home once in every session, and 
 no more, shall be paid by the government out of 
 the public treasury," &c. If you annul only 
 those things in the existing Constitution, which 
 are not in the new one, what does it bring with 
 it ? It brings with it the necessity of going to 
 
72d day.] 
 
 REVISED CONSTITUTION. 
 
 657 
 
 Monday,] 
 
 BOUTWELL LORD. 
 
 [August 1st. 
 
 the Constitution of 1780, and examining all the 
 subsequent provisions of constitutional law ; and 
 then it all depends upon the construction. In 
 regard to the provision respecting legislative power 
 over alimony and divorce, if you pass your Con 
 stitution in such a way as to annul all the exist 
 ing provisions, and this should be put separately 
 and rejected, you would have no power to pass 
 laws regulating the proceedings in relation to di 
 vorce and alimony. Are you prepared to do that ? 
 If you pursued the other course, and allowed all 
 to remain that is not inconsistent with the new 
 action, then comes up the third article of the 
 Constitution in reference to the judiciary power, 
 that they may regulate proceedings with regard 
 to divorce and alimony, unless the legislature 
 shall otherwise order. The consequence of this 
 mode of proceeding will be, that you will have 
 two Constitutions in existence at the same time, 
 and every man will have to go to the Constitution 
 of 1780, and to all the subsequent amendments, 
 and analyze them, to see whether they are con 
 sistent with the new one. Therefore, I say that 
 we must put into the new Constitution what is 
 necessary to make the system perfect, and stand 
 upon that. The rest is of little consequence. 
 
 Mr. LOUD, of Salem. If the gentleman stands 
 upon that ground, and puts into the Constitution 
 as a whole, just exactly what is necessary, in 
 order to make a perfectly complete system of gov 
 ernment, and just enough to make his machine 
 work well, I want to know why he has not sep 
 arated all these new propositions which are not 
 necessary, in order to enable the instrument to be 
 a perfect instrument. Why has he not allowed 
 the voters of this Commonwealth to pass dis 
 tinctly upon such questions as do not go to make 
 up a perfect system of government ? I will give 
 him an example. I will take the proposition 
 which is incorporated into the Constitution, of the 
 secret ballot, and I will ask, why did he not put 
 the secret ballot as a separate proposition ? Can 
 not the government work, and is not the machine 
 a perfect instrument, without the secret ballot in 
 it ? If they were to be chosen by ballot, as the 
 old Constitution provides, does it not stand well 
 enough, without having the secret ballot put in ? 
 Cannot that stand as an independent proposition, 
 just as well as imprisonment for debt ? I want 
 to have gentlemen show me how it happens, 
 while we have been living here seventy years 
 under this government, and have got along pretty 
 well, and all that time have not had this provision 
 how does it happen that there is now such an 
 essential necessity for the introduction of this 
 principle into the Constitution ? What I want to 
 find out, is, whether there is any distinct princi 
 
 ple within which this Report of the Committee 
 falls. It seems to me that it does not fall within 
 any principle at all. Suppose it is submitted to 
 the people, whether the judicial tenure should be 
 changed, I want to know whether that cannot 
 be put as a distinct proposition to the people ? I 
 do not see anything to prevent that from being 
 done ; and so, Sir, I do not know why any one 
 of these seven articles is any less necessary than 
 the several articles of the Bill of Rights. If I 
 understand the ground upon which the gentle 
 man s argument is put, it is exactly this : that 
 there is nothing in this first proposition, occupy 
 ing thirty- eight pages, which is not essential to 
 the operation of government. Does not the 
 gentleman for Berlin say, that there is nothing in 
 these thirty- eight pages, that is not essential in 
 order to make the machine operate ? 
 
 Mr. BOUTWELL. It is undoubtedly true, 
 that there are some things in these propositions 
 which might be submitted separately. For in 
 stance, we have decided that a quorum in the 
 Senate shall be twenty- one, and of the House 
 one hundred. There is a distinct proposition, no 
 doubt, which can be submitted to the people. We 
 have also provided, that the judicial tenure shall 
 be ten years, and to stand during good behavior ; 
 that is a distinct proposition ; but, suppose you 
 leave out of the Constitution which you intend 
 to submit to the people, all reference to a quorum 
 of the Senate, and all reference to a quorum of 
 the House of Representatives, and you do not 
 establish the judicial tenure one way or the other 
 you submit them to the people as independent 
 propositions, and what is the result ? If the peo 
 ple vote that the quorum of the Senate shall not 
 be twenty- one, the quorum of the Senate under 
 the old Constitution is sixteen. If they vote that 
 the quorum of the House shall not be one hun 
 dred, then you have no quorum unless you revive 
 the old Constitution, and have it sixty. But in 
 case you revive the old Constitution, the difficulty 
 to which I have referred, presents itself. It is 
 undoubtedly true, that many propositions could 
 be submitted separately, but yet, in order to make 
 the different parts harmonious, it is better to sub 
 mit them together. 
 
 Mr. LORD. Let me call the gentleman s atten 
 tion to chapter fourteen articles first and second, 
 in relation to future revision and amendments of 
 the Constitution ; why could not that be put sep 
 arately ? 
 
 Mr. BOUTWELL. We have already, in the 
 existing Constitution, an article in reference to 
 amendments to the Constitution, and we have 
 deemed it one subject, as we have that of elec 
 tions. We have three separate provisions in 
 
658 
 
 REVISED CONSTITUTION. 
 
 [72d day. 
 
 Monday,] 
 
 LORD KELLOGG HALLETT HATHAWAY. 
 
 [August 1st. 
 
 regard to elections, but we have thought it expe 
 dient and proper, in order to make it harmonious, 
 to have one chapter, where all in our fundamen 
 tal law upon that subject, might be found, and 
 we have framed a chapter accordingly. So with 
 regard to amendments of the Constitution. If 
 you proceed to analyze the Constitution in that 
 way, the result will be that we shall have so many 
 propositions to submit to the people, that, after 
 all, the system will be exceedingly unintelligible. 
 There are some propositions which are entirely 
 disconnected with the Constitution, and which 
 may be submitted independently, without essen 
 tially affecting the Constitution one way or the 
 other. That, I think, will be the case with every 
 one of these seven articles ; if they are rejected, 
 the people are not confused if they are adopted, 
 the people are not confused. 
 
 Mr. LORD. I understand the explanation of 
 the gentleman for Berlin, to be this : Although 
 the proposition in reference to the secret ballot, 
 which I have pointed out, is one of those amend 
 ments which are of a nature that they can be 
 submitted separately, and yet, inasmuch as the 
 same subject matter is in the Constitution, it is 
 desirable to have all upon the same subject incor 
 porated together. In order that the people may 
 more readily understand it, all on one subject 
 should be put in one chapter, and submitted to 
 gether. Now, the thought accidentally occurred 
 to my mind, that it was a little singular why he 
 did not apply the principle to the twelfth article of 
 the Bill of Rights, where the subject treated of 
 is the right of habeas corpus; why is not his 
 proposition, numbered two, which relates to that 
 very subject, put into the twelfth article, instead 
 of being placed at the end, as a proposition by 
 itself? I want to find out, if I can, whether 
 there is any principle that will cover the whole 
 Report. 
 
 The question being upon the motion of Mr. 
 Schouler which was, to annex to the twenty-sev 
 enth article of the Bill of Rights, the following 
 words, contained under head "five" of the Report 
 of the Committee, viz. : " No person shall be im 
 prisoned for any debt hereafter contracted, unless 
 in cases of fraud," it was put, and decided in the 
 negative. 
 
 So the amendment was not agreed to. 
 
 Mr. KELLOGG, of Hadley. I move to 
 amend the fourth article of the Bill of Rights, 
 which is as follows : 
 
 The people of this Commonwealth have the 
 sole and exclusive right of governing themselves, 
 as a free, sovereign, and independent State ; and 
 do, and forever hereafter shall, exercise and enjoy 
 every power, jurisdiction, and right, which is 
 
 not, or may not hereafter, be by them expressly 
 delegated to the United States of America, in 
 Congress assembled, 
 
 by striking out the three last words, " in Congress 
 assembled." 
 
 The PRESIDENT. The Chair is of opinion 
 that the proposition is not in order. 
 
 Mr. HALLETT, for Wilbraham. It seems to 
 me to be important to settle here, the rules of 
 order upon which we are to proceed, before we 
 advance any farther, in order that we may know 
 how and by what we are to be governed. For 
 instance, the subject upon which the gentleman 
 from Hadley proposes an amendment, was a sub 
 ject considered in the Committee, and reported 
 against by the Committee on the Bill of Rights. 
 Therefore, the subject has been considered in Com 
 mittee, has been reported upon, or rather not 
 reported upon, which is equivalent to recommend 
 ing no change in it, and has so passed through 
 its various stages in the Convention. Now, the 
 question arises upon the Report of a Committee, 
 which is merely a Committee to draft the form of 
 a Constitution to reduce the resolves of the Con 
 vention to the best form and language which 
 would express the meaning and intent of the 
 resolves. The question arises here, at this stage, 
 whether the Constitution is open to amendment 
 upon those topics which have been submitted to 
 a Committee and acted upon ; and then, secondly, 
 whether it is open to amendment upon topics 
 which had not been submitted to a Committee. 
 In my judgment, in neither case can it be done. 
 If it should be considered in order, there are a 
 number of amendments which I should propose ; 
 for instance, as to giving the legislature the power 
 to establish martial law. With the view of hav 
 ing this matter determined, I submit these 
 remarks ; that we may understand our position, 
 and settle, in limine, the question, and thereby we 
 shall be released from great difficulty and delay. 
 
 The PRESIDENT. The Chair rules that the 
 amendment of the gentleman from Hadley is not 
 in order, inasmuch as it reverses the action of the 
 Convention. 
 
 Mr. HATHAWAY, of Freetown. I do not 
 rise for the purpose of taking an appeal from the 
 decision of the Chair, by no means ; but merely 
 to ask for information through the Chair. I sup 
 pose, Sir, that it was the duty of the Committee, 
 which have made this Report, under the order for 
 their appointment, to revise and report to the 
 Convention, for their consideration, the amend 
 ments which had been proposed and adopted by 
 the Convention to the Constitution. The Com 
 mittee have made the Report which we have before 
 us, and what is it ? They have embraced not only 
 
72d day.] ^ 
 
 REVISED CONSTITUTION. 
 
 659 
 
 Monday,] 
 
 HATHAWAY JENK.S PLTJNKETT. 
 
 [August 1st. 
 
 the amendments, I am free to say, but the whole 
 provisions of the Constitution, as it has hereto 
 fore existed, together with the amendments which 
 have been made since 1780, and are now in force. 
 If all this is proposed here as an amendment, I 
 submit whether the proposition of the gentleman 
 from Hadley is not a correct one ; that is, to make 
 an amendment to this amendment ? If it be not 
 an amendment, then I submit the question as to 
 the power of the Committee to report as they 
 have. The resolution by which that Committee 
 was directed to be appointed, as I have it from the 
 Secretary, is in these words : 
 
 Ordered, That a Committee of members 
 
 be appointed to reduce such amendments as have 
 been, or may be agreed upon, to the form in which 
 it is proper to submit the same to the people for 
 ratification. 
 
 It evidently only applies it to such amendments 
 as we have made to the Constitution, and not to 
 a substituted Constitution. 
 
 The PRESIDENT. The gentleman from 
 Freetown raises a different question from that 
 raised by the amendment offered by the gentleman 
 from Hadley. If the gentleman proposes his 
 question as a question of order, the Chair will rule 
 upon it. 
 
 Mr. HATHAWAY. My question is, whether 
 this Report of the Committee is embraced within 
 the meaning of the word " amendments," as used 
 in the order by virtue of which the Committee 
 was appointed, under date of June twenty-first ? 
 If it be embraced in the meaning of that word, 
 then I submit that the proposition of the gentle 
 man from Hadley is a correct one, and in order. 
 If it be not embraced, then I submit whether the 
 Committee have not superseded their authori- 
 ty? 
 
 The PRESIDENT. The question raised by 
 the gentleman it is not competent for the Con 
 vention to settle at this time, as the question now 
 under consideration is the* Declaration of Rights 
 that is, under the unanimous consent of the 
 Convention. If the gentleman presents any case 
 in reference to the Bill of Rights, where the Com 
 mittee have transcended their authority, the Chair 
 will decide it. 
 
 Mr. JENKS, of Boston. Is it in order to offer 
 an amendment to the Bill of Rights ? 
 
 The PRESIDENT. It is. 
 
 Mr. JENKS. I move, then, to add to the 
 twenty-fifth article of the Bill of Rights, which 
 is as follows : 
 
 Laws made to punish for actions clone before 
 the existence of such laws, and which have not 
 been declared crimes by preceding laws, are un 
 
 just, oppressive, and inconsistent with the funda 
 mental principles of a free government. 
 
 The following words : 
 
 No person shall be imprisoned for any cause, 
 not declared by law to be criminal, or dangerous 
 to the public safety. 
 
 If this amendment is adopted, it will supersede 
 the provision under head " five," upon the same 
 subject, though in different language. 
 
 The PRESIDENT. The Chair thinks the 
 amendment not in order at this time, as it is only 
 competent to amend in matters before the Con 
 vention, and that in form, and not in substance. 
 
 Mr. PLUNKETT, of Adams. I move to 
 amend article thirteenth of the Bill of Rights, by 
 adding thereto what the Committee have placed 
 under head " three," with a view of a separate 
 submission thereof to the people, and which is in 
 the following words : 
 
 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 up 
 on the admission and rejection of evidence, and 
 upon all questions of law raised during the trials, 
 and upon all collateral and incidental proceed 
 ings ; and also to allow bills of exceptions. And 
 the court may grant a new trial in case of con 
 viction. 
 
 The question was taken, and the amendment 
 was rejected. 
 
 No farther amendments being offered to the 
 Bill of Rights, the Secretary then read the first 
 chapter of the Frame of Government, as follows : 
 
 ARTICLE 1. The department of legislation shall 
 be styled the General Court of Massachusetts. 
 It shall consist of two branches, a Senate and a 
 House of Representatives, each of which shall 
 have a negative upon the other. 
 
 ART. 2. The political year shall begin on the 
 first Wednesday in January ; and the General 
 Court shall assemble every year, on the said first 
 Wednesday in January, and shall be dissolved 
 on the day next preceding the first Wednesday 
 in January following, without any proclamation 
 or other act of the Governor. But nothing herein 
 contained shall prevent the General Court from 
 assembling at such other times as they shall judge 
 necessary, or when called together by the Gov 
 ernor. 
 
 ART. 3. The compensation of members of the 
 General Court shall be established by standing 
 laws ; but no act increasing the compensation 
 shall apply to the General Court which passes 
 such act ; and no compensation shall be allowed 
 for attendance of members at any one session, 
 for a longer time than one hundred days. 
 
660 
 
 REVISED CONSTITUTION. 
 
 [72d day. 
 
 Monday,] 
 
 FHAME OF GOVERNMENT. 
 
 [August 1st. 
 
 ART. 4. No bill or resolve of the Senate or 
 House of Representatives shall become a law, and 
 have force as such, until it shall have been laid 
 before the Governor for his revisal ; and if he, 
 upon such revision, approve thereof, he shall sig 
 nify his approbation by signing the same. But 
 if he have any objection to the passing of such 
 bill or resolve, he shall return the same, together 
 with his objections thereto, in writing, to the 
 Senate or House of Representatives, in which 
 soever the same shall have originated ; who shall 
 enter the objections sent down by the Governor, 
 at large, on their records, and proceed to recon 
 sider the said bill or resolve : but if, after such 
 reconsideration, two- thirds of the said Senate or 
 House of Representatives, present, shall, notwith 
 standing the said objections, agree to pass the 
 same, it shall, together with the objections, be 
 sent to the other branch of the Legislature, where 
 it shall also be reconsidered, and if approved by 
 two-thirds of the members present, shall have 
 the force of a law : but, in all such cases, the 
 votes of both Houses shall be determined by 
 yeas and nays ; and the names of the persons 
 voting for, or against, the said bill or resolve, 
 shall be entered upon the public records of the 
 Commonwealth. 
 
 And in order to prevent unnecessary delays, if 
 any bill or resolve shall not be returned by the 
 Governor, within five days after it shall have been 
 presented to him t the same shall have the force of 
 a law. 
 
 But if any bill or resolve shall be objected to 
 and not approved by the Governor, and if the 
 General Court shall adjourn within five days 
 after the same shall have been laid before the 
 Governor for his approbation, and thereby pre 
 vent his returning it, with his objections, as pro 
 vided by the Constitution, such bill or resolve 
 shall not become a law, nor have force as such. 
 
 ART. 5. The General Court shall forever have 
 full power and authority to erect and constitute 
 judicatories and courts of record, or other courts, 
 to be held in the name of the Commonwealth, for 
 the hearing, trying, and determining of all manner 
 of crimes, offences, pleas, processes, plaints, ac 
 tions, matters, causes, and things, whatsoever, 
 arising or happening within the Commonwealth, 
 or between or concerning persons inhabiting, or 
 residing, or brought within the same ; whether 
 the same be criminal or civil, or whether the said 
 crimes be capital or not capital, and whether the 
 said pleas be real, personal, or mixed ; and for 
 the awarding and making out of execution there 
 upon : to which courts and judicatories are hereby 
 given and granted full power and authority, from 
 time to time, to administer oaths or affirmations, 
 for the better discovery of truth in any matter in 
 controversy, or depending before them. 
 
 ART. 6. The General Court shall have power 
 to make laws regulating marriage, divorce, and 
 alimony, but shall in no case decree a divorce, or 
 hear and determine any causes touching the va 
 lidity of the marriage contract. 
 
 ART. 7. And farther, full power and author 
 ity are hereby given and granted to the said 
 General Court, from time to time, to make, or 
 dain, and establish, all manner of wholesome and 
 
 reasonable orders, laws, statutes, and ordinances, 
 directions, and instructions, either with penalties 
 or without ; so as the same be not repugnant or 
 contrary to this Constitution, as they shall judge 
 to be for the good and welfare of this Common 
 wealth, and for the government and ordering 
 thereof, and of the subjects of the same, and for 
 the necessary support and defence of the govern 
 ment thereof; and to name and settle annually, 
 or provide, by fixed laws, for the naming and 
 settling all civil officers within the said Common 
 wealth, the election and constitution of whom 
 are not hereafter in this form of government oth 
 erwise provided for ; and to set forth the several 
 duties, powers, and limits, of the several civil 
 and military officers of this Commonwealth, and 
 the forms of such oaths or affirmations as shall 
 be respectively administered unto them for the 
 execution of their several offices and places, so as 
 the same be not repugnant or contrary to this 
 Constitution ; and to impose and levy propor 
 tional and reasonable assessments, rates, and taxes, 
 upon all the inhabitants of, and persons resident, 
 and estates lying within the said Commonwealth ; 
 and also to impose, and levy, reasonable duties 
 and excises upon any produce, goods, wares, mer 
 chandise, and commodities, whatsoever, brought 
 into, produced, manufactured, or being within 
 the same ; to be issued and disposed of by war 
 rant, under the hand of the Governor of this 
 Commonwealth, for the time being, with the ad 
 vice and consent of the Council, for the public 
 service, in the necessary defence and support of 
 the government of the said Commonwealth, and 
 the protection and preservation of the subjects 
 thereof, according to such acts as are or shall be 
 in force within the same. 
 
 ART. 8. The General Court shall have full 
 power and authority to erect and constitute mu 
 nicipal or city governments in any corporate town 
 or towns in this Commonwealth, and to grant to 
 the inhabitants thereof such powers, privileges, 
 and immunities, not repugnant to the Constitu 
 tion, as the General Court shall deem necessary 
 or expedient for the regulation and government 
 thereof, and to prescribe the manner of calling 
 and holding public meetings of the inhabitants, 
 in wards or otherwise, for the election of officers 
 under the Constitution, and the manner of re 
 turning the votes given at such meetings : pro 
 vided, that no such government shall be erected 
 or constituted in any town not containing twelve 
 thousand inhabitants ; nor unless it be with the 
 consent and on the application of a majority of 
 the inhabitants of such town, present and voting 
 thereon, pursuant to a vote at a meeting duly 
 warned and holden for that purpose : and pro 
 vided, also, that all by-laws, made by such mu 
 nicipal or city government, shall be subject, at all 
 times, to be annulled by the General Court. 
 
 ART. 9. Each branch of the General Court 
 shall have authority to punish, by imprisonment, 
 every person, not one of its members, who shall 
 be guilty of disrespect thereto, by any disorderly 
 or contemptuous behavior, in its presence; or 
 who, in the town or city where the General 
 Court is sitting, and during the time of its sitting, 
 shall threaten harm to the body or estate of any 
 
72d day.] 
 
 REVISED CONSTITUTION. 
 
 661 
 
 Monday,] 
 
 LORD BOUTWELL. 
 
 [August 1st. 
 
 of its members, or assault any of them for any 
 thing said or done in its session ; or shall assault, 
 or arrest, any witness, or other person, ordered to 
 attend it, in his way in going, or returning ; or 
 who shall rescue any person arrrested by its order : 
 provided, that no imprisonment, on its warrant or 
 order, for either of the above described offences, 
 shall be for a term exceeding thirty days ; and the 
 Governor and Council shall have the same author 
 ity to punish in like cases. And no member, 
 during his going to, returning from, or attending, 
 the General Court, shall be arrested, or held to 
 bail, on mesne process. 
 
 ART. 10. Each branch of the General Court 
 may try, and determine all cases where their 
 rights, and privileges are concerned, and which, 
 by the Constitution, they have authority to try 
 and determine, by committees of their own mem 
 bers, or in such other way as they may respec 
 tively think best. 
 
 ART. 11. Each branch shall be the final judge 
 of the elections, returns, and qualifications, of its 
 members, as pointed out in the Constitution ; 
 shall choose a presiding officer from among its 
 members ; appoint its other officers ; settle its 
 rules and orders of proceeding, and shall have 
 power to adjourn : provided) such adjournment 
 shall not exceed three days at a time. 
 
 ART. 12. And whereas the elections appointed 
 to be made by this Constitution, on the first 
 Wednesday in January annually, by the two 
 Houses of the Legislature, may not be completed 
 on that day, the said elections may be adjourned, 
 from day to day, until the same shall be com 
 pleted. 
 
 ART. 13. In all elections by the General Court, 
 or either branch thereof, a majority of votes shall 
 be required, and the members shall vote viva voce. 
 
 ART. 14. The enacting style, in making and 
 passing all acts, statutes, and laws, shall be : BE 
 
 IT ENACTED BY THE GENERAL COURT OF MASSA 
 CHUSETTS. 
 
 Mr. LORD, of Salem, asked the reading of the 
 resolution of the Convention which authorized 
 the change in article four. 
 
 Mr. BOUTWELL, for Berlin. I suppose the 
 gentleman refers to the word "present" which 
 has been inserted in that article. A part of the 
 article, including the word " present," inserted in 
 italics, reads as follows : 
 
 But if he have any objection to the passing of 
 such bill or resolve, he shall return the same, 
 together with his objections thereto, in writing, to 
 the Senate or House of Representatives, in which 
 soever the same shall have originated ; who shall 
 enter the objections sent down by the Governor, 
 at large, on their records, and proceed to recon 
 sider the said bill or resolve : but if, after such 
 reconsideration, two- thirds of the said Senate or 
 House of Representatives, present, shall, notwith 
 standing the said objections, agree to pass the 
 same, it shall, together with the objections, be 
 sent to the other branch of the Legislature, where 
 it shall also be reconsidered, and if approved by 
 
 two-thirds of the members present, shall have the 
 force of a law. 
 
 Now, Sir, of course under the order of the 
 Convention, the Committee thought that some 
 little discretion was allowed them ; and I have in 
 my mind a fact within the knowledge of the gen 
 tleman from Salem himself, which assures me 
 that I was not alone in that opinion. If the Con 
 vention will be kind enough to read from the 
 word "present," in italics, to the close of the 
 article, they will see that the word " present" is 
 used in the present Constitution in reference to 
 one branch of the legislature, and not in reference 
 to the other. Therefore, it being declared in the 
 original article that two-thirds of the " members 
 present" in one case, and there being no declara 
 tion in regard to the other, the Committee thought 
 it within the rule, for the purpose of consistency, 
 in the administration of the government in that 
 respect, to introduce the word "present." That 
 is the idea the Committee had, and, of course, it 
 is for the Convention to decide whether the Com 
 mittee went beyond their authority in intro 
 ducing this word. 
 
 Mr. LORD. Then I understand from the 
 chairman of the Committee, that this alteration 
 is made without any vote of the Convention. 
 The old Constitution requires that when a bill 
 shall receive the veto of the governor, it shall, 
 in the first place, be sent to the House in which 
 it originated, and be passed by two-thirds of that 
 body, not of those who happen to be present at 
 the time, but by two-thirds of that body in which 
 the bill originated. This amendment, which this 
 Convention has not voted nor acted upon, pro 
 vides that two-thirds of a bare quorum may pass 
 a bill, notwithstanding there may not be even a 
 majority present, and notwithstanding the num 
 ber may be less than the number that ordinarily 
 votes in favor of an amendment. 
 
 I merely call the attention of the Convention to 
 this matter, because it is a palpable alteration of 
 the Constitution, by the Committee, without the 
 authority of any action of the Convention in its 
 favor, for there has been no action of the Con 
 vention upon it. 
 
 Now, I suppose the Committee went the whole 
 length of its powers, when they reported the old 
 Constitution, where it remains unaltered, when 
 under the authority to report amendments, it 
 reported what were not amendments ; but it 
 seems to me to be transcending their powers, to 
 report as an amendment what the Convention 
 have not at all acted upon. The question now 
 is, not whether it ought to be so, but whether we 
 have made it so. 
 
662 
 
 REVISED CONSTITUTION. 
 
 [72d day. 
 
 Monday,] 
 
 DANA LORD BOUTWELL BUTLER. 
 
 [August 1st. 
 
 Mr. DANA, for Manchester. I would state, 
 in addition to the reasons stated by the gentleman 
 who represents Berlin, for the action of the Com 
 mittee, that we understood, and understand now, 
 that the practice has been to consider this article 
 four, as requiring only two-thirds of the members 
 present, in either branch of the legislature. So 
 that, by this amendment, we not only make the 
 rule uniform, but make it conform to the uniform 
 practice heretofore. 
 
 Mr. LOUD. Will the gentlemen of the Com 
 mittee inform us in what cases any resolve has 
 passed either branch by two-thirds of those pres 
 ent, where that was not two-thirds of the whole ? 
 
 Mr. DANA. I do not know, of my own 
 knowledge, that there had been anything actually 
 passed by such a two-third vote, but I have been 
 told, on good authority, that such has been 
 regarded to be the rule. It has always been so 
 considered. I cannot mention any vetoed bill 
 that has actually passed the House, in which it 
 originated, by a two-thirds vote, when that vote 
 was not two-thirds of the whole. On consulting 
 with persons learned in the practice of the legisla 
 ture, Presidents and Speakers, I learned that 
 such had been the understanding, and such the 
 action of the House of Representatives. Whether 
 the question has ever come under the adjudica 
 tion of the courts, I do not know. 
 
 Mr. LORD. Has there ever been any case, in 
 which a bill has passed the branch of the legisla 
 ture to which it was returned, and declared pass 
 ed, with less than two-thirds of that branch 
 voting in its favor ? Because, if there has been, 
 it is a precedent in favor of our adopting this as 
 a rule. But if there has not been, I am entitled 
 to my own construction of the Constitution, un 
 til the supreme court have ruled it, or until the 
 people have changed it ; and I submit, that this 
 Committee cannot put their construction upon 
 language, and base an amendment upon that con 
 struction, and say that it means two- thirds of 
 those present, without deciding whether it means 
 those present and voting, or not. I do not believe 
 there is a precedent to that effect, because the 
 only bill I ever knew pass through the House, 
 against the governor s veto, was the proposition to 
 increase the members pay, and that passed by a 
 good deal more than two-thirds of the whole 
 number. 
 
 Some gentleman suggests to me that the bill 
 establishing the Boston Wharf Company passed 
 so. My impression is, that when it was vetoed, 
 it failed, and was brought up again the next 
 year. 
 
 Mr. BOUTWELL. It passed the same year. 
 
 Mr. LORD. But did it pass by less than two- 
 
 thirds of the body to which it was returned ? To 
 which body was it returned ? 
 
 Mr. BOUTWELL. To the Senate. 
 
 Mr. LORD. The gentleman says it was re 
 turned to the Senate, and being returned to the 
 Senate I suppose that gentleman can tell me 
 whether it obtained twenty- seven members of 
 that body in its favor, because it must have ob 
 tained the votes of that number in order to have 
 had two- thirds of that body ? If it did, then it is 
 a precedent. 
 
 Mr. BUTLER, of Lowell. I wish to call the 
 attention of the gentleman from Salem, (Mr. 
 Lord,) to a very palpable alteration in the same 
 article, which I commend to his deliberate judg 
 ment, because that has never received the judicial 
 interpretation of the supreme court. He will find 
 it in the last line but one on the ninth page, in the 
 following language : 
 
 And in order to prevent unnecessary delays, 
 if any bill or resolve shall not be returned by the 
 Governor, within five days after it shall have been 
 presented to him, the same shall have the force of 
 a law. 
 
 The words " to him " are very evidently in 
 serted. Now, the supreme court have never de 
 cided judicially upon that point, as I am aware 
 of; and I should like to know by what authority 
 the Committee put in those words ? 
 
 Mr. LORD. I do not believe that the Com 
 mittee have any right to put in the words " to 
 him," for I think if a governor, to avoid having 
 a bill presented to him for his signature, should 
 undertake to take himself out of the State for five 
 days, and the bill should be presented at the 
 council- chamber, that would be a sufficient pre 
 sentation to him. I do not believe in the Revising 
 Committee undertaking to amend the Constitu 
 tion. If it is proper that the Constitution should 
 be amended, it should be amended by the Con 
 vention. 
 
 Mr. BUTLER. The Convention are now 
 about doing it, as I understand it. That is what 
 we are after ; if not, we had better go home. We 
 are about adopting these suggestions. 
 
 Mr. LORD. If the gentleman from Lowell is 
 right, I withdraw my request for the reading of 
 the resolution. I understood the ruling of 
 the Chair to be that no amendment of the Consti 
 tution which affected the substance of the Consti 
 tution, and which had not been passed upon by 
 the Convention heretofore, would be in order. If 
 these are amendments to the Constitution, and if 
 they have not been passed upon, they are not in 
 order now. 
 
 The PRESIDENT. The gentleman from Sa 
 lem raises the question of order whether the Com- 
 
72d day.] 
 
 REVISED CONSTITUTION. 
 
 663 
 
 Monday,] 
 
 BUTLER LORD HILLARD JENKS BOUTWELL. 
 
 [August 1st. 
 
 mittee have transcended their authority. That 
 question has not heretofore been raised. 
 
 Mr. BUTLER. I am of the opinion that there 
 has been a uniform construction in regard to this 
 matter. Let us take an illustration. The gentle 
 man from Salem supposes that the governor might 
 be sick or he would not be found within five days ; 
 or he might have broken his leg and be confined 
 to his room at New Bedford, and then if a bill or 
 resolve was presented for five days to his empty 
 chair in the council- chamber when it was known 
 that the governor would not be there, it would 
 have the effect of law. 
 
 Mr. LORD. By our provisions the lieutenant- 
 governor is acting governor under such circum 
 stances. 
 
 Mr. BUTLER. I am talking about it as it 
 was. The lieutenant-governor was not governor, 
 and that is another provision that we have 
 changed. But in these cases where a certain con 
 struction has been given to language by usage, 
 the Committee have not changed the matter in 
 substance ; they have only made use of good lan 
 guage and good forms to express just exactly 
 what it meant before. In this case, there is not a 
 man here who supposes that an absolute majority 
 of two-thirds was required. It is easy for the 
 gentleman to ask how the vote stood, when 
 neither he nor anybody else here knows how it 
 stood. I will put the question to him, whether 
 he knows himself. 
 
 Mr. LORD. I am going to see. 
 
 Mr. BUTLER. When the gentleman finds 
 out, I shall beglad to hear the result. But when 
 the gentleman asks questions that he cannot an 
 swer himself, it puts me in mind of an old prov 
 erb which says that a certain class of persons may 
 ask questions which a philosopher cannot answer. 
 [Laughter.] My rule is, if I do not know the 
 truth of the case, to hold my peace. But I think 
 we might as well meet this, once for all Have 
 the Committee transcended their power ? If they 
 have, we shall have to send their Report back to 
 them, and in the course of some weeks or months 
 we may perhaps get a new Report. 
 
 Mr. HILLARD, of Boston. I wieh to ask for 
 information, although I shall, perhaps, come in 
 the category of those who ask questions that can 
 not be answered, whether the change of " three 
 days" in the last line of article eleven has been 
 adopted by the Convention. 
 
 Mr. LORD. I will state that I have been in 
 formed that the bill by which the Boston Wharf 
 Company increased its capital, passed by twenty- 
 four to seven being two -thirds of those present, 
 and not two-thirds of the Senate. No one raised 
 any objection. 
 
 Mr. JENKS, of Boston. I will call attention 
 to the proviso in article eight, which is as fol 
 lows : 
 
 Provided, That no such government shall be 
 erected or constituted in any town not containing 
 twelve thousand inhabitants ; nor unless it be 
 with the consent and on the application of a ma 
 jority of the inhabitants of such town, present and 
 voting thereon, pursuant to a vote at a meeting 
 duly warned and holden for that purpose. 
 
 It seems to me that there is a great inconsis 
 tency in requiring that any town in order to be 
 come a city should have twelve thousand inhabi 
 tants ; and more than six thousand would be 
 required to vote for it, if I understand it right. 
 
 Mr. BOUTWELL, for Berlin. The gentleman 
 will perceive, if he notices the type in which that 
 proviso is printed, that it is exactly the same as a 
 provision of the present Constitution ; and accord 
 ing to the ruling of the Chair, the Convention 
 cannot now proceed to consider any matters of 
 that kind. I will say in regard to the observation 
 of the gentleman from Salem, and in order that 
 the impression may be removed which is raised 
 upon the minds of other gentlemen upon this 
 floor, that the first idea of the Committee was to 
 make a systematic and harmonious frame of gov 
 ernment, so that they had in some cases to take 
 liberties with the language which was passed by 
 this Convention. For instance, in the very chap 
 ter now under consideration, the Convention 
 decided by a vote that the Senate might adjourn 
 three days at a time, but they passed no such vote 
 in regard to the House. The existing Constitu 
 tion provides that the House may adjourn for two 
 days at a time. The Committee did take so much 
 liberty as this ; it being desirable to comprise it 
 all into one chapter, under the head of the general 
 court, for the purpose of harmony, they say that 
 each branch of the legislature may adjourn for 
 three days. They supposed it might be proper to 
 apply that provision to the House of Representa 
 tives, being guided by the resolve which was 
 passed by this Convention in relation to the Sen 
 ate. If the gentleman from Salem was in his 
 seat, I would say to him, that if he would turn to 
 the chapter on elections, he will see a provision 
 for the election of governor by the House and 
 Senate in case there is no election by the people. 
 The words " then eligible" were proposed to be 
 added by one of the Committee, and I assented 
 to it because I thought it expedient ; it was 
 thought proper that a man who should cease to 
 reside in the Commonwealth should cease to be 
 eligible as governor, and I accepted the recom 
 mendation. There was no provision made with 
 regard to elections from cities ; while provision 
 
664 
 
 REVISED CONSTITUTION. 
 
 [72d day. 
 
 Monday,] 
 
 LlVERMORE BOUTWELL UPTON 
 
 [August 1st. 
 
 with regard to the election of governor from the 
 towns was made, the cities were omitted ; and 
 what did the Committee do ? They had to make 
 a provision which stands in the chapter relating 
 to elections, that the manner of calling and hold 
 ing public meetings in cities for the election of 
 officers under the Constitution, and the manner 
 of retxirning the votes given, shall be as now pre 
 scribed, or as may be hereafter prescribed by the 
 legislature. What I desire is, that the Conven 
 tion will take up these different changes and 
 examine them. The Committee have no desire to 
 make issue on these points ; they are perfectly 
 willing that the opinion of the Convention 
 should be taken, and they believe that a good 
 reason can be given for all they have done. 
 
 Mr. LlVERMORE, of Cambridge. I should 
 like to inquire of the chairman of the Committee, 
 by what authority they put in the last sentence of 
 article two, which is in these words : 
 
 But nothing herein contained shall prevent 
 the General Court from assembling at such other 
 times as they shall judge necessary, or when 
 called together by the Governor. 
 
 Mr. BOUTWELL. I do not find any resolve 
 on that subject, among my official papers. 
 
 Mr. LIVERMORE. The Committee on the 
 Frame of Government reported it in the following 
 words : 
 
 The Legislature shall assemble every year, on 
 the first Wednesday in January ; and shall be 
 dissolved on the day next preceding the said first 
 Wednesday in January, without any proclama 
 tion or other act of the Governor. 
 
 That was afterwards amended, by striking out 
 the words " said first Wednesday in January," 
 and inserting the words " first Wednesday in 
 January following ;" but there was no provision 
 allowing them to assemble at such other times as 
 they shall judge necessary. 
 
 Mr. UPTON, of Boston. It seems to me that 
 numbers seven and eight of the proposed amend 
 ments ought to go into the Frame of Government, 
 and I can hardly understand why they were 
 omitted, when all the other duties of the general 
 court are included. I move that they be inserted, 
 to constitute article twelve of the Frame of Gov 
 ernment, as follows : 
 
 ART. 12. The Legislature shall not create cor 
 porations by special act, when the object of the 
 incorporation is attainable by general laws. 
 
 The Legislature shall have no power to pass 
 any act granting any special charter for banking 
 purposes, or any special act to increase the capital 
 stock of any chartered bank; but corporations 
 may be formed for such purposes, or the capital 
 
 stock of chartered banks may be increased, under 
 general laws. 
 
 The Legislature shall provide by law for the 
 registry of all notes or bills authorized by general 
 laws to be issued or put in circulation as money ; 
 and shall require ample security for the redemp 
 tion of such notes in specie. 
 
 The question being taken, the amendment was 
 not agreed to. 
 
 Mr. LORD, of Salem. I wish to inquire 
 whether the w r ord "present" is under the power 
 of the Committee ? I raise that question of order. 
 
 The PRESIDENT. The gentleman from Sa 
 lem raises the question of order, whether the 
 amendments reported by the Committee of Re 
 vision to the fourth article of the first chapter, be 
 in order. It is the opinion of the Chair that the 
 insertion of the word "present" does not change 
 the substance of the article ; the experience of the 
 Chair has been invariably that a question has been 
 considered settled on receiving the assent of two- 
 thirds of the members present and voting thereon. 
 The Chair does not, therefore, regard it as chang 
 ing the substance of the article. 
 
 Mr. LORD. In my opinion, it does change it, 
 and I do not think the Committee on Revision 
 have any authority to give a construction to an 
 article about which there may have been a differ 
 ence of opinion, so as to have the Constitution 
 settled according to their exposition in relation to 
 the governor s veto. The Constitution provides 
 that sixteen shall be a quorum of the Senate ; 
 and I do not believe that that same Constitution 
 meant that eleven members of the Senate should 
 pass a bill over the governor s veto. I think, if 
 they had meant that eleven members could pass 
 a bill in such circumstances, they would not have 
 said that it should take two-thirds of the body to 
 pass it. 
 
 Now, if it should so happen a thing which I 
 can hardly suppose that the President was 
 wrong in his construction of the Constitution be 
 fore, then this Constitution gets changed against 
 my wishes, and without any action of this Con 
 vention. I am willing that the law should re 
 quire two-thirds of one House only to pass a bill 
 over the governor s veto, but I think there should 
 be a check of tw r o- thirds of either one body or the 
 other of the legislature. It seems to me to be a 
 good and desirable provision, and one which 
 ought not to be changed, and especially it should 
 not be changed without some action of the Con 
 vention. But suppose and I agree that the 
 charter of the Boston Wharf Company was so 
 passed by a vote of 24 to 7 but suppose, upon a 
 quo warranto against the corporation, the supreme 
 court should hold that the charter never had an 
 
72d day.] 
 
 REVISED CONSTITUTION. 
 
 665 
 
 Monday,] 
 
 OLIVER BOUTWELL DANA LIVERMORE. 
 
 [August 1st. 
 
 existence, if they should go behind that which 
 appeared to be a legal enactment, and make that 
 decision, the fact that the President of this Con 
 vention had a different view of the subject, would 
 not seem to me to be a sufficient reason for sus 
 taining this phraseology. If, Sir, it really does 
 mean the same thing, then it seems to me to be 
 right to put it into the Constitution ; if it does 
 not, then it ought not to be incorporated into that 
 instrument. It is undertaking to give a construc 
 tion to, and to reduce to a certainty, a provision 
 of the Constitution, upon which, perhaps, gen 
 tlemen may entertain different opinions. I am 
 myself so much opposed to allowing two-thirds 
 of a bare majority to pass a bill over the veto of 
 the governor, that if that had been the true con 
 struction heretofore, I should have been in favor 
 of a change. And I now move that the word 
 "present," where it appears in italics, be struck 
 out. 
 
 The question was taken upon the motion of 
 Mr. Lord, and there were, on a division ayes, 
 G3 ; noes, 162. 
 
 So the amendment was rejected. 
 
 Mr. OLIVER, of Lawrence. Since the amend 
 ed Constitution, as presented by the Committee, 
 contains some provisions for which, when it comes 
 before the people, I can vote, and some for which 
 I cannot vote, and as these to which I refer are all 
 contained in division number one of their Report, 
 thereby compelling me to vote either against some 
 that I approve of, or for some that I disapprove 
 of, I move, in order to relieve myself from this 
 future false position, that article three of this 
 chapter, which is as follows : 
 
 ART. 3. The compensation of members of the 
 General Court shall be established by standing 
 laws ; but no act increasing the compensation shall 
 apply to the General Court which passes such act ; 
 and no compensation shall be allowed for attend 
 ance of members at any one session for a longer 
 time than one hundred days. 
 
 Be separated from this chapter, and be placed 
 among those provisions which are proposed to 
 be submitted to the people as independent 
 propositions, and form a new one numbered 
 "nine." 
 
 The question was taken upon Mr. Oliver s 
 motion, and it was decided in the negative. 
 
 So the amendment was rejected. 
 
 Mr. OLIVER. I make the same motion in 
 regard to article thirteenth of the same chapter, 
 arid for the same reasons. That article reads as 
 follows : 
 
 ART. 13. In all elections by the General 
 Court, or either branch thereof, a majority of 
 
 45 
 
 votes shall be required, and the members shall 
 vote viva voce. 
 
 The question was taken on the latter motion, 
 and the amendment was not agreed to. 
 
 Mr. BOUTWELL, for Berlin. Some question 
 has arisen in regard to the second article, relating 
 to the general court. It reads as follows : 
 
 ART. 2. The political year shall begin on the 
 first Wednesday in January ; and the General 
 Court shall assemble every year on the said first 
 Wednesday in January, and shall be dissolved on 
 the day next preceding the first Wednesday in 
 January following, without any proclamation or 
 other act of the Governor. But nothing herein 
 contained shall prevent the General Court from 
 assembling at such other times as they shall judge 
 necessary, or when called together by the Gov 
 ernor. 
 
 The question is upon the last clause. The 
 Committee on the Bill of Rights, so far as I can 
 learn, made an amendment to the first article of 
 the existing chapter on the general court, which 
 was adopted by the Convention. But it happens 
 that in the tenth article of the Amendments to the 
 present Constitution, are the words, "but nothing 
 herein contained shall prevent the general court 
 from assembling at such other times as they shall 
 judge necessary, or when called together by the 
 governor." 
 
 So far as I know, the Convention have never 
 passed upon that portion of the tenth article or 
 amendment to the present Constitution. The 
 Committee have transferred that article, and made 
 it here the closing paragraph of the second article 
 upon the general court. So that, while I believe 
 that the Convention have passed upon something 
 nearly like this article, yet they have not passed 
 upon that; if I am correct, the provision being 
 part of the existing Constitution of the Common 
 wealth. 
 
 Mr. DANA, for Manchester. I can only say, 
 that the preparation of this chapter was placed in 
 my hands. I found this last clause in the old 
 Constitution, and could not find any resolve by 
 which it was repealed, and therefore I felt bound 
 to put it into the Constitution, and it was adopted 
 by the Committee. 
 
 Mr. LIVERMORE, of Cambridge. I move 
 to strike out the very words contained in this 
 last clause, that is, the clause relating to the 
 assembling of the general court at such other 
 times as they shall deem necessary. To be sure, 
 it occurs in another part of the Constitution, but 
 the Committee reported to strike out of the pres 
 ent Constitution the first article, and that was 
 adopted by the Convention. I do not know what 
 effect that clause would have, standing in another 
 
666 
 
 REVISED CONSTITUTION. 
 
 [72d day. 
 
 Monday,] 
 
 ALLEN BUTLER MORTON LORD. 
 
 [August 1st. 
 
 part of the Constitution. It was once struck out 
 by the vote of the Convention. If in order, I 
 now move to strike out those words. 
 
 The PRESIDENT. The Chair is of opinion 
 that the motion is not in order, as it proposes a 
 change in matter of substance. If it appears 
 from the records that the Convention have stricken 
 out from the Constitution those words, the Chair 
 will rule upon it as a question of order. 
 
 Mr. LIVERMORE. I desire to reserve the 
 right to examine the matter. 
 
 Mr. ALLEN, of Worcester. I think I can 
 explain the matter. In. a part of the Constitu 
 tion committed to the Committee on the Frame 
 of Government, there was a provision that the 
 legislature should assemble on the first Wednes 
 day of January, and when called by the governor, 
 and also at such other times as they should judge 
 necessary. The Committee on the Frame of 
 Government, moved to strike out that part which 
 authorized the legislature to assemble at its pleas 
 ure. The Convention adopted that amendment. 
 But it seems that a similar provision, which au 
 thorized the general court to assemble at its 
 pleasure, occurs in another part of the Constitu 
 tion. The Committee on the Frame of Govern 
 ment had not that part of the Constitution sub 
 mitted to them, and therefore, they could not 
 make a Report concerning it. The consequence 
 is, that while the Convention have signified the 
 purpose to take away from the legislature the 
 power of assembling at such times as they should 
 deem necessary, there is still a provision left in 
 the Constitution, authorizing them to do so, and 
 that remains in the new Constitution. 
 
 If the Convention generally believe that it is 
 not necessary for the legislature to assemble, and 
 to hold extra sessions, except when called together 
 by the governor and, I believe, extra sessions 
 never have been held except upon such call per 
 haps by general consent, and without objection, 
 this part of the Constitution might be made to 
 conform to the vote which the Convention have 
 already adopted, and these words be stricken out. 
 
 Mr. BUTLEIl, of Lowell. I wish merely to 
 suggest, that tlic right of the general court to as 
 semble without the consent of the governor, is a 
 valuable right. It is one which made the funda 
 mental quarrel between Governor Gage and the 
 general court of that day. lie refused to have 
 them called together, and made proclamation that 
 they should not assemble together, but when they 
 thought that the exigencies of the times required 
 it, they did so ; and, when they came to make a 
 Constitution, they took care not to put themselves 
 into the power of any governor. Therefore, I 
 object to having it struck out. 
 
 Mr. MORTON, of Taunton. Is there no way 
 of getting at this matter without unanimous con 
 sent ? I did not exactly hear the suggestions of 
 the gentleman from Worcester. I think it very 
 important to strike out the words " at such other 
 times as they shall judge necessary or " and leave 
 them to be called together by the governor. Be 
 fore it is finally settled one way or another, I beg 
 leave to make a suggestion or two. It seems to 
 me that if we authorize the general court to meet 
 as often as they please, we render entirely nuga 
 tory another provision which we have incorpo 
 rated among the new provisions of the Constitu 
 tion, and we had better strike that out, if we 
 retain this. We have provided, in another clause, 
 that no session of the general court shall last 
 beyond one hundred days ; but such a restriction 
 is entirely useless, if they may have half a dozen 
 sessions in the year. The motion which I made 
 upon the subject, and which finally passed, only 
 limited the sessions to one hundred days ; but if 
 the legislature have the right to adjourn over a 
 week, and then hold another session, it seems to 
 me that the first provision is entirely useless. I 
 make this suggestion for the consideration of the 
 gentlemen of the Convention as worthy of atten 
 tion. 
 
 Mr. LORD, of Salem. I desire to call the 
 mind of the President to a matter of construction. 
 I take it that the old instrument is to be construed 
 as entire. In the old Constitution, chapter first, 
 under the Frame of Government, section first, 
 provides, that the legislative body shall assemble 
 every year, on the first Wednesday of May, and 
 at such other time as they shall judge necessary. 
 In the tenth article of the Amendments to the 
 Constitution, the first Wednesday of May was 
 changed to the first Wednesday of January ; and 
 the phrase " But nothing herein contained shall 
 prevent the general court from assembling at such 
 other times as they shall judge necessary, or when 
 called together by the governor," was merely put 
 into that article, to show that the entire first sec 
 tion was not to be abrogated ; that they meant 
 simply, to change the time of meeting. It was 
 introduced for that purpose, and to show that the 
 framers of it did not mean to change the power 
 of the general court to sit when they should deem 
 it necessary. But this Convention, having changed 
 that first article, it seems to me that the proviso 
 that it shall not be altered, falls also, and that the 
 change is perfect and complete. I make these 
 suggestions as worthy of consideration, and not 
 because I want to have those words stricken out, 
 for I agree, somewhat, with the opinions of the 
 gentleman from Lowell, that, after all, this legis 
 lature, which we treat so contumeliously, is a 
 
2d day.] 
 
 REVISED CONSTITUTION. 
 
 667 
 
 Monday, 
 
 DANA HALE GARDXEH. 
 
 [August 1st. 
 
 pretty important branch of this government, and 
 ought to have some power, and that they should 
 come together whenever the exigencies of the 
 public require it. But certain, it does, as sug 
 gested by the gentleman from Taunton, (Mr. 
 Morton,) render nugatory the provision limiting 
 the session to one hundred days ; because they 
 may have a session the next day after the hun 
 dred days have expired, and take another hundred 
 days, and get their pay for it. I merely call the 
 attention of the presiding officer to this matter of 
 construction, to know when we consider the 
 form of the matter which was original in the 
 Constitution, and that the tenth amendment only 
 changed the day, and provided that this other 
 matter of the first article, should not be repealed 
 by that whether, when we come to repeal the 
 first article, the other does not fall with it ? 
 
 Mr. DANA, for Manchester. A single word 
 upon this matter. As I recollect it, there was no 
 debate or consideration of that point, when the 
 Report was made from the Committee, of which 
 the gentleman from Worcester, (Mr. Allen,) was 
 chairman. There was no debate upon the point 
 whether we should prevent the legislature from 
 meeting without the consent of the governor. I 
 found no amendment debated, striking out the 
 grant of power, and I supposed the Convention 
 had not intended to strike it out, and the He- 
 vising Committee did not feel authorized to do so. 
 
 In the next place, I should feel reluctant to say 
 that the legislature never shall meet but by the 
 consent of the governor. Suppose that, after the 
 January session, in the autumn, or in the early 
 part of the winter, there should be war, insur 
 rection, or invasion, and the governor was not to 
 be relied upon, should the people of the Com 
 monwealth be put into such a situation that they 
 cannot meet in legislature, to provide the neces 
 sary measures of defence and safety ? 
 
 I have no idea that the legislature will be likely 
 to meet unnecessarily, but would we like to say 
 that they never should meet in extra session un 
 less by the call of the governor ? 
 
 As to pay, they may have extra pay now, if 
 the governor calls them together, and they ought 
 to be paid if they come together upon an exigency 
 of the public affairs, without the consent of the 
 governor. 
 
 Mr. HALE, of Bridgewater. I would inquire 
 of the gentleman for Manchester, in what way 
 the general court should hold a session in such 
 case, unless by a call of the governor, or by hav 
 ing adjourned to meet again on a given day ? We 
 ought certainly to provide some mode by which 
 they can. be called together in case of great emer 
 gency. 
 
 Mr. DANA, for Manchester. I can say to the 
 gentleman from Bridgewater, that if any exigency 
 should arise, rendering it necessary for the legisla 
 ture to meet, and the Constitution says that they 
 may meet, they will find out a way to meet. The 
 independence and self- subsistence of the legisla 
 tive power, and representative department, is an 
 essential idea in the Anglo Saxon race. If the 
 Constitution says they may meet, and the exi 
 gency says they must meet, I think they will 
 meet. 
 
 Mr. GARDNER, of Seekonk. I hope this 
 section will stand as it is. In 17i5, a message 
 was sent to the then governor of the Common 
 wealth, (Governor Shirley,) to call the legislature 
 together, to settle a boundary question between 
 this State and the State of Rhode Island. Not 
 withstanding that this was felt to be a question of 
 great importance, the governor did not feel obliged 
 to call an extra session, and the commissioners of 
 Rhode Island ran an ex parte boundary line, from 
 which all the difficulties that have ever arisen be 
 tween the two States, has originated. I think 
 that that is one essential reason why this provision 
 should be retained. As the gentleman for Man 
 chester says, the legislature will find a way to 
 meet, if it be necessary that they should. 
 
 The first chapter on the " Frame of Govern 
 ment," as amended, was then finally passed. 
 
 The second chapter was then read by the Secre 
 tary, containing provisions in regard to the Senate 
 districts in which senators are to be chosen ; 
 qualifications of candidates ; manner of electing 
 senators ; examination of election returns ; quorum 
 of the Senate ; impeachments, &C., and it was 
 finally passed without farther amendment. It is 
 as follows : 
 
 [AHTICLE 1. There shall be annually elected 
 by the inhabitants of this Commonwealth, quali 
 fied as in this Constitution is provided, forty per 
 sons to be senators, for the year ensuing their 
 election ; and the Senate shall be the first branch 
 of the General Court. For this purpose, the 
 General Court, holden next after the adoption of 
 this Constitution, and next after each decennial 
 census thereafter, shall divide the Commonwealth 
 into forty districts, composed of contiguous terri 
 tory, and as nearly equal in population as may be : 
 provided, that 110 town or ward of a city be di 
 vided therefor. Each district shall be entitled to 
 elect one serator, who shall have been an inhabi 
 tant of this Commonwealth for five years immedi 
 ately preceding his election, and at the time of his 
 election shall be an inhabitant of the district for 
 which he is chosen.] 
 
 ART. 2. There shall be a meeting on the Tues 
 day next after the first Monday in November, an 
 nually, forever, of the inhabitants of each town 
 and city in this Commonwealth, to be called and 
 warned in due course of law, at least seven days 
 
668 
 
 REVISED CONSTITUTION. 
 
 [72d day. 
 
 Monday, 
 
 SENATE HOUSE. 
 
 [August 1st. 
 
 before the day of such meeting, for the purpose of 
 electing senators ; and at such meetings every 
 qualified voter shall have a right to give in his 
 vote for a senator for the district of which he is an 
 inhabitant. 
 
 The selectmen of the several towns shall pre 
 side at the town meetings impartially ; and shall 
 receive the votes of all the inhabitants of such 
 towns present arid qualified to vote for a senator, 
 arid shall sort and count them in open town meet 
 ing, and in presence of the town clerk, who shall 
 make a fair record, in presence of the select 
 men, and, in open town meeting, of the name of 
 every person voted for, and of the number of 
 votes against his name ; and a fair copy of this 
 record shall be attested by the selectmen and the 
 town clerk, and shall be sealed up, directed to the 
 Secretary of the Commonwealth for the time 
 being, with a superscription expressing the pur 
 port of the contents thereof, and delivered by the 
 town clerk of said towns to the sheriff of the 
 county in which such town lies, thirty days at 
 least before the first Wednesday in January an 
 nually ; or it shall be delivered into the Secretary s 
 office seventeen days at least before the said first 
 Wednesday in January ; and the sheriff of each 
 county shall deliver all such certificates, by him 
 received, into the Secretary s office, seventeen days 
 before the said first Wednesday in January. 
 
 And the inhabitants of plantations unincor 
 porated, qualified as this Constitution provides, 
 shall have the same privilege of voting for a sena 
 tor, in the plantations where they reside, as town 
 inhabitants have in their respective towns ; and 
 the plantation meetings for that purpose shall be 
 held annually on the same Tuesday next after the 
 first Monday in November, at such place in the 
 plantations respectively as the assessors thereof 
 shall direct; which assessors shall have like 
 authority for notifying the voters, collecting and 
 returning the votes, as the selectmen and town 
 clerks have in their several towns, by this Consti 
 tution. And all other persons living in places 
 unincorporated, (qualified as aforesaid,) shall have 
 the privilege of giving in their votes for a senator, 
 in the town where the inhabitants of such unin 
 corporated places shall be assessed, and be notified 
 of the place of meeting by the selectmen of the 
 said town for that purpose, accordingly. 
 
 [ART. 3. The Governor and Council shall, as 
 soon as may be, examine the returned copies of 
 the record provided for in article second of this 
 chapter, and ascertain who shall have received the 
 largest number of votes in each of the several sena 
 torial 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 ; 
 and the governor shall cause each of said persons, 
 so appearing to be elected, to be notified at least 
 fourteen days before the first Wednesday in Jan 
 uary of each year, to attend on that day, and take 
 his seat accordingly. 
 
 ART. 4. Not less than twenty- one members 
 shall constitute a quorum for doing business ; but 
 a less rmmber may organize, adjourn from day to 
 day, and compel the attendance of absent mem 
 bers.] 
 
 ART. 5. The Senate shall be a court with full 
 
 authority to hear and determine all impeachments 
 made by the House of Representatives against 
 any officer or officers of the Commonwealth, for 
 misconduct and maladministration in their offices ; 
 but, previous to the trial of every impeachment, 
 the members of the Senate shall respectively be 
 sworn, truly and impartially to try and determine 
 the charge in question, according to evidence. 
 Their judgment, however, shall not extend far 
 ther than to removal from office and disqualifica 
 tion to hold or enjoy any place of honor, trust, or 
 profit, under this Commonwealth : but the party, 
 so convicted, shall be, nevertheless, liable to in 
 dictment, trial, judgment and punishment, ac 
 cording to the laws of the land. 
 
 The Secretary was then directed to read the 
 third chapter, containing provisions in relation to 
 the House of Representatives the mode of their 
 election, and the qualifications of voters ; mode of 
 apportioning representatives among the several 
 towns and cities by the Senate ; division of cities 
 into districts ; time of electing representatives ; 
 fines on towns neglecting to elect ; qualifications 
 of representatives ; power of the House in re 
 gard to impeachments ; the origination of money 
 bills ; and the number of members constituting 
 a quorum. It was read, as follows : 
 
 ARTICLE 1. There shall be, in the Legislature 
 of this Commonwealth, a representation of the 
 people, annually elected, and founded upon the 
 principle of equality. 
 
 ART. 2. And in order to provide for a repre 
 sentation of the citizens of this Commonwealth, 
 founded upon the principle of equality, every 
 corporate town, containing [less than one thou 
 sand inhabitants, may elect one representative in 
 the year when the valuation of estates shall be 
 settled, and, in addition thereto, one representa 
 tive five years in every ten years. Every town 
 containing one thousand inhabitants and less than 
 four thousand, may elect one representative. 
 Every town containing four thousand inhabitants 
 and less than eight thousand, may elect two rep 
 resentatives. Every town containing eight thou 
 sand inhabitants and less than twelve thousand, 
 may elect three representatives. Every city or 
 town containing twelve thousand inhabitants, may 
 elect four representatives. Every city or town 
 containing over twelve thousand inhabitants, may 
 elect one additional representative for every four 
 thousand inhabitants it shall contain, over twelve 
 thousand. Any two towns, each containing less 
 than one thousand 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 represen 
 tative 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 be 
 long to a town having one thousand inhabitants. 
 And this apportionment shall be based upon the 
 census of the year one thousand eight hundred 
 and fifty, until a new census shall be taken. 
 
72d day.] 
 
 REVISED CONSTITUTION. 
 
 669 
 
 Monday,] 
 
 EARLE. 
 
 [August 1st. 
 
 ART. 3. The Senate at its first session after 
 this Constitution shall have been adopted, and 
 at its first session after the next State census shall 
 have been taken, and at its first session next after 
 each decennial State census thereafter wards, shall 
 apportion the number of representatives to which 
 each town and city shall be entitled, and shall 
 cause the same to be seasonably published ; and 
 in all apportionments after the first, the numbers 
 which shall entitle any town or city, to two, three, 
 four, or more representatives, shall be increased 
 or diminished in the same proportion as the 
 population of the whole Commonwealth shall 
 have increased or decreased since the last preced 
 ing apportionment. 
 
 ART. 4. No town hereafter incorporated, con 
 taining less than fifteen hundred inhabitants, shall 
 be entitled to choose a representative. 
 
 ART. 5. Each city in this Commonwealth, 
 shall be divided, by such means as the Legislature 
 may provide, into districts of contiguous territory, 
 as nearly equal in population as may be, for the 
 election of representatives, which districts shall 
 not be changed oftener than once in five years : 
 provided, tiowever, that no one district shall be en 
 titled to elect more than three representatives.] 
 
 ART. G. The members of the House of Rep 
 resentatives shall be chosen on the Tuesday next 
 after the first Monday in November, annually ; but 
 meetings may be adjourned, if necessary, for the 
 choice of representatives, to the next day, and 
 again to the next succeeding day, but no farther : 
 but in case a second meeting shall be necessary 
 for the choice of representatives, such meetings 
 shall be held on the fourth Monday of the same 
 month of November. 
 
 ART. 7. 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, agreeably to this 
 Constitution. 
 
 ART. 8. Every member of the House of Rep 
 resentatives shall have been for one year, at least, 
 next preceding his election, an inhabitant of the 
 town he shall be chosen to represent. 
 
 ART. 9. The House of Representatives shall 
 be the grand inquest of this Commonwealth ; and 
 all impeachments made by them shall be heard 
 and tried by the Senate. 
 
 ART. 10. All money bills shall originate in 
 the House of Representatives ; but the Senate 
 may propose or concur with amendments, as on 
 other bills. 
 
 ART. 11. Not less than one hundred members 
 of the House of Representatives shall constitute a 
 quorum for doing business. 
 
 Mr. EARLE, of "Worcester. I move to amend 
 this chapter, in the second article, by striking out 
 these words : 
 
 Every town containing eight thousand inhabi 
 tants, and less than twelve thousand, may elect 
 three representatives. Every city or town con 
 taining twelve thousand inhabitants may elect 
 four representatives. 
 
 Also to strike out the word "twelve" in the 
 
 next line below, and insert in its place the word 
 " four." The part which I propose to strike out 
 is mere surplusage. The amendment will not 
 change the meaning of the article, while it will 
 divest it of unnecessary verbiage. The article, as 
 it now stands, reads thus : 
 
 ART. 2. And in order to provide for a repre 
 sentation of the citizens of this Commonwealth, 
 founded upon the principle of equality, every 
 corporate town, containing less than one thousand 
 inhabitants, may elect one representative 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 
 one thousand inhabitants and less than four thou 
 sand, may elect one representative. Every town 
 containing four thousand inhabitants and less than 
 eight thousand, may elect two representatives. 
 Every town containing eight thousand inhabitants 
 and less than twelve thousand, may elect three 
 representatives. Every city or town containing 
 twelve thousand inhabitants, may elect four rep 
 resentatives. Every city or town containing over 
 twelve thousand inhabitants, may elect one ad 
 ditional representative for every four thousand 
 inhabitants it shall contain over twelve thousand. 
 Any two towns, each containing less than one 
 thousand inhabitants, may, by consent of a ma 
 jority of the legal voters present at a legal meet 
 ing, in each of said towns respectively, called for 
 that purpose, form themselves into a representa 
 tive 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 be 
 long to a town having one thousand inhabitants. 
 And this apportionment shall be based upon the 
 census of the year eighteen hundred and fifty, 
 until a new census shall be taken. 
 
 If it be amended as I propose, it will then read 
 as follows : 
 
 ART. 2. And in order to provide for a repre 
 sentation of the citizens of this Commonwealth, 
 founded upon the principle of equality, every 
 corporate town containing less than one thou 
 sand inhabitants, may elect one representative in 
 the year when the valuation of estates shall be 
 settled, and, in addition thereto, one representa 
 tive five years in every ten years. Every town 
 containing one thousand inhabitants and less than 
 four thousand, may elect one representative. 
 Every town containing four thousand inhabitants 
 and less than eight thousand, may elect two rep 
 resentatives. Every city or town containing over 
 four thousand inhabitants, may elect one ad 
 ditional representative for every four thousand 
 inhabitants it shall contain over four thousand. 
 Any two towns, each containing less than one 
 thousand inhabitants, may, by consent of a ma 
 jority of the legal voters present at a legal meet 
 ing, in each of said towns respectively, called for 
 that purpose, form themselves into a representa 
 tive 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 be- 
 
670 
 
 REVISED CONSTITUTION. 
 
 [72d day. 
 
 Monday,] 
 
 OLIVER EARLE BUTLER SCHOTJLER MORTON BOUTWELL. [August 1st. 
 
 long to a town having one thousand inhabitants. 
 And this apportionment shall be based upon the 
 census of the year eighteen hundred and fifty, 
 until a new census shall be taken. 
 
 Mr. OLIVER, of Lawrence. I would ask 
 whether the article, if thus amended, will be con 
 sistent ? 
 
 Mr. EAULE. The amendment will not change 
 the meaning of the article at all. It will rather 
 make it more consistent, if anything. 
 
 Mr. BUTLER, of Lowell. I think that this is 
 an amendment of substance rather than of form, 
 and therefore, I must object to it. 
 
 Mr. EARLE. I repeat, that it does not change 
 the subject at all. When I proposed this amend 
 ment, at the time the article was under considera 
 tion by the Convention, it was objected, that the 
 Committee on Revision would take out all sur 
 plusage, and this not having been done here by 
 the Committee, I propose to strike it out now. 
 
 Mr. BUTLER. My reason for thinking this a 
 substantive amendment, is this : You go on pro 
 viding for the representation of towns progressive 
 ly, till you get up to towns having a sufficient 
 number of inhabitants to entitle them to be char 
 tered as cities. Yet the gentleman from Worcester 
 proposes to strike out these words : " Every city 
 or town containing twelve hundred inhabitants, 
 may elect four representatives." I really do not 
 see any necessity at all for this amendment. 
 
 Mr. EARLE. I would like to read the article 
 again, so that the Convention may see how the 
 matter will stand. [Mr. Earle accordingly read 
 the article as he proposed to amend it, as given 
 above.] That is precisely the provision now ; 
 and if we allow these words to stand, we might 
 as well go on repeating the same words, until 
 we get up to fifty representatives. It is mere 
 surplusage. If the Convention choose to have 
 it, they can say so ; and if not, they will strike 
 them out. 
 
 Mr. SCIIOULER, of Boston. I am not quite 
 certain about the amendment of the gentleman 
 from Worcester being surplusage; but I feel 
 pretty sure, that there is some surplusage in the 
 first part of the article. In the first place, it 
 says : "In order to provide for a representation 
 of the citizen* of this Commonwealth upon a prin 
 ciple of equality, every corporate town," &c. And 
 I find also in the first article these words : " There 
 shall be, in the Legislature of this Commonwealth, 
 a representation of the people, annually elected, 
 and founded upon the principle of equality." 
 Now, all this rhodomontade about being " found 
 ed upon the principle of equality," I hold to be 
 not mere surplusage, but something a great deal 
 worse, [laughter] ; and if we are to amend on the 
 
 principle of striking out ail the " surplusage," it 
 strikes me there wift be very little of your new 
 Constitution left. [Renewed laughter.] 
 
 The question being taken on the amendment, 
 it was agreed to. 
 
 Mr. MORTON, of Taunton. I would ask the 
 attention of the Convention to the eighth article 
 as it is prepared by the Committee. It is as 
 follows : 
 
 ART. 8. Every member of the House of Rep 
 resentatives shall have been for one year, at least, 
 next preceding his election, an inhabitant of the 
 town he shall be chosen to represent. 
 
 It seems to me that the Committee have omitted 
 a very important provision of the old Constitu 
 tion. I will, therefore, read it. It will be found 
 on the eightieth page of the Constitution now in 
 the hands of members, and is as follows : 
 
 III. Every member of the House of Repre 
 sentatives shall be chosen by written votes ; and, 
 for one year at least next preceding his election, 
 shall have been an inhabitant of, [and have been 
 seized in his own right of a freehold of the value of 
 one hundred pounds, within the town he shall be 
 chosen to represent, or any ratable estate to the 
 value of two hundred pounds ; ] and he shall 
 cease to represent the said town immediately on 
 his ceasing to be qualified as aforesaid. 
 
 This latter clause, " and he shall cease to rep 
 resent the said town immediately on his ceasing 
 to be qualified as aforesaid," which I hold to be 
 exceedingly important, is here entirely omitted. 
 I think it should be supplied. I therefore move 
 to amend the eighth article of this chapter by add 
 ing this clause to it, so as to make it read : 
 
 ART. 8. Every member of the House of Rep 
 resentatives shall have been for one year, at least, 
 next preceding his election, an inhabitant of the 
 town he shall be chosen to represent ; and he shall 
 cease to represent the said town immediately on 
 his ceasing to be qualified as aforesaid. 
 
 Mr. BOUTWELL, for Berlin. If gentlemen 
 will look at the Constitution as it at present stands, 
 they will perceive that there are certain words in 
 the article referred to by the gentleman from 
 Taunton, enclosed within brackets, involving a 
 property qualification for members, which words 
 were stricken out by the Convention of 1820, 
 leaving the article in a somewhat inelegant, if not 
 unintelligible, condition. We have, of course, no 
 authority to say, that no other words than those 
 within the brackets were stricken out at that time. 
 The qualification there alluded to, I take it, referred 
 entirely to property ; and there can be no doubt, 
 that the design of the Convention of 1820 was 
 
72d day.] 
 
 REVISED CONSTITUTION. 
 
 671 
 
 Monday,] 
 
 MORTON BUTLER. 
 
 [August 1st. 
 
 to do away with that qualification only, because 
 the qualification of having been a resident in a 
 town one year preceding election, is a qualifica 
 tion that, by the terms of the present Constitu 
 tion, cannot cease after it is obtained; but the 
 property qualification may cease. 
 
 Mr. MORTON. It seems to me there need be 
 no difficulty in understanding the provision of 
 the present Constitution in regard to this, as it 
 now stands. I am aware, that originally, two 
 qualifications for a representative were required : 
 A qualification of property, and also a qualifica 
 tion in regard to residence ; but the amendment 
 of 1820 struck out the qualification of property, 
 leaving that of residence. I admit that the man 
 ner in which this provision was left, was very in 
 elegantly expressed. But, if gentlemen will read 
 the provision as we now receive it, I maintain, 
 that it is capable of only one single construction. 
 It may not, perhaps, be expressed in the best pos 
 sible way, but it certainly does provide for a resi 
 dence of one year in a town or city prior to 
 election. That is an indispensable qualification, 
 and the true meaning of it I hold to be, that it 
 shall continue during the period of service : that 
 when a representative changes his residence into 
 another town, or county, or State, he ceases, by 
 that act, to represent the town for which he was 
 elected. Believing, therefore, that this is a valu 
 able provision, I hope that we shall retain it in 
 the revised Constitution. 
 
 Mr. BUTLER, of Lowell. I do not under 
 stand how the amendment of the gentleman from 
 Tauiitoii will reach what he wants to reach, and 
 I should object to it, somewhat, if we could get 
 at it. The regulation now is, that every member 
 of the House of Representatives shall have been 
 for one year at least, next preceding his election, 
 an inhabitant of the town he shall be chosen to 
 represent. He shall have lived there a year 
 before he is elected. Now, if he has lived there a 
 year before he is elected, there is his full qualifi 
 cation ; and after this is done, I do not see how a 
 man can help having lived there. He may move 
 away the next day, but yet, he has lived there a 
 year. 
 
 Mr. MORTON. He ceases to represent the 
 town immediately on his ceasing to be qualified, 
 according to the present Constitution. 
 
 Mr. BUTLER. That is one of the reasons 
 why the Constitution needs revising ; it is one of 
 the best arguments I could have, and I thank the 
 gentleman for calling my attention to it. When 
 the Constitution was originally made, there were 
 two qualifications ; one was, that he should have 
 lived there a year, so as to have learned the wishes 
 of the inhabitants ; and the other was, that he 
 
 should have so much money. When the amend 
 ment was made, taking out the money qualifica 
 tion ; and Judge Gushing came to print his edition 
 and put in the brackets for which he has got a 
 patent having done that, what happened ? That 
 last line which used to refer to the money quali 
 fication, and which provided that when he ceased 
 to be a freeholder, he ceased to represent the town 
 when he ceased to have property, he ceased to 
 be qualified as aforesaid stands now to refer to 
 something that is wholly incongruous with it. I 
 submit to my learned friend from Taunton, 
 whether it is not just like a seizin, in a deed, it is 
 either broken at once, or it is never broken. 
 Now, we propose to say, that although it was 
 never broken, still it may be broken afterwards. 
 I appeal to him as a lawyer, if I am not correct 
 in that position. I insist that this being qualified 
 and " ceasing to be qualified as aforesaid," refers 
 simply to the freehold qualification, and not to any 
 other part of the Constitution. When the prop 
 erty qualification Avas stricken out, it did not 
 make good grammar or good sense to leave it 
 there ; it made it say that a man should cease to 
 live not before he was elected, but after he was 
 elected ; and that is one of the reasons first, 
 against Mr. Cushing s copyright, and second, for 
 the revision of the Constitution. I think this 
 is a valuable privilege in. a town. If a town 
 chooses to elect a man who has lived there and 
 has learned its habits, its manners, and the wants 
 and wishes of the people, and he has had the 
 qualification of living there a year before he is 
 elected, and comes down here to represent them ; 
 but yet, he chooses to move away into another 
 town, now I take it that he is still elected from 
 that town that sent him here. If they have 
 chosen a man to represent them, they want to 
 have him here, and what right have we to take 
 away their privilege ? He knows what their 
 wants and wishes are, for he has lived there long 
 enough to be qualified ; and if qualified, he can 
 not be unqualified by simply crossing an imagi 
 nary line. For one, I am not willing that such an 
 amendment should go in ; for it is still an open 
 question. 
 
 Mr. MORTON. I would not say another 
 word, had it not been that I was appealed 
 to as a lawyer, which is somewhat of a misnomer, 
 on the part of the gentleman from Lowell. I 
 know that I have grown somewhat rusty upon 
 that subject, but still, I have kept in mind a few 
 old rules of construction, which I think are now 
 sound and bright, and as good as new ; and in 
 answer to the gentleman, I will refer to them. 
 In the first place, it is one of the most ancient and 
 well established rules of construction, that in 
 
672 
 
 REVISED CONSTITUTION. 
 
 [72d day. 
 
 Monday,] 
 
 MORTON BOUTWELL SCHOULER. 
 
 [August 1st. 
 
 construing a statute, or any other public instru 
 ment, you must so construe it as to give effect to 
 all the language used in it ; and if it is not 
 exactly consistent, if some of it appears to have 
 one definite meaning, yet, if taking it all together, 
 you can give a construction to it to meet what is 
 well settled, you are bound to give such a con 
 struction. Now, if you take it all together with 
 a little latitude in construing the first part of it, 
 you give a meaning to the whole of it. It pro 
 vides that he shall have been an inhabitant for one 
 year next preceding his election, and shall cease 
 to represent the said town immediately on his 
 ceasing to be qualified as aforesaid. If you take 
 a little liberal construction, this last clause will be 
 applicable to the residence ; residence is what they 
 are aiming at, as this is necessary in order to give 
 entire effect to the last clause. The qualification 
 refers to residence, and there is nothing else that 
 it could refer to ; and therefore, when he ceases to 
 be a resident of that town, he ceases to be quali 
 fied. I suppose there was some wisdom, and some 
 good sense, and some knowledge of English, in 
 the Convention which preceded us thirty- three 
 years ago ; and it seems to me that we are not at 
 liberty to assume that they did not know what 
 they were saying, and that the language they used 
 was a perfect nullity, with no meaning whatever. 
 I suppose that respectable and learned body had 
 an idea that they were adopting such language as 
 would convey their meaning ; and I am not will 
 ing to adopt a construction, the effect of which, 
 would be to stultify that Convention of great 
 men. Now, I differ with the gentleman from 
 Lowell in regard to the reasonableness of it. I 
 hold that a man, in order to be a representative 
 of a town, should live in that town, in order not 
 only that he may know what are the views and 
 intentions, and wishes of the inhabitants, but in 
 order that his interest may be identified with their 
 interests. If a man is chosen, who the next day 
 moves away into South Carolina, or New Orleans, 
 or perhaps to some part of Europe, according to 
 this construction of the Constitution, he can even 
 come across the Atlantic in a steamer and take 
 his place here in the House of Representatives, 
 when he has no more interest in the welfare of 
 the town which he formerly lived in, than the 
 Queen of England has. In that point of view, 
 I think the construction which I have given is the 
 sound one, and I hope it will be retained. 
 
 Mr. BOUTWELL, for Berlin. I beg leave to 
 make a suggestion to the Convention upon an 
 other point. Some gentlemen have desired that 
 we should propose specific amendments to the 
 Constitution. I dare say, such a motion will be 
 made before we adjourn to-night; but already 
 
 several questions have arisen upon this floor as 
 to what the Constitution is, because it is so diffi 
 cult to analyze the existing provisions so as to 
 determine just how far new amendments go in 
 nullifying them. One word upon this particular 
 point now under discussion. In 1780, the Con 
 vention provided that all persons should have 
 two qualifications to entitle them to hold seats in 
 the House of Representatives ; one was, that they 
 should have lived in the town they were chosen 
 to represent, one year preceding their election ; 
 and the other was, that they should have a certain 
 amount of property. In consequence of that, 
 they said that a person not thus qualified should 
 cease to represent the town from which he was 
 chosen. I will give to the Convention of 1780 
 some credit for intelligence, although it so hap 
 pens that the amendment alluded to, did not pass, 
 by the by, until 1840 ; but they did not intend 
 that a person should cease to be qualified, from 
 any circumstance over which he had power of 
 his own will, but on account of contingencies to 
 which he was, or might be liable. There were 
 two qualifications ; he could rid himself of the 
 one, but he could not rid himself of the other. 
 If he had lived in the town for twelve months 
 previous to his election, that qualification stood 
 by him. But, if he possessed a hundred pounds, 
 and should lose it in speculations, and become 
 bankrupt, he then ceased to be qualified to rep 
 resent the town. Therefore, the Committee did 
 not follow the interpretation given by the gentle 
 man who has had charge of this for twenty years. 
 They came to the conclusion that when the peo 
 ple annulled the property qualification, they also 
 annulled the result of it. 
 
 Mr. SCHOULER, of Boston. A case came 
 up during the last session of the legislature, when 
 a man was elected in the town of Blackstone, but 
 previous to the adjournment of the House he had 
 removed to the town of New Market, N. H. In 
 consequence of this fact, the subject was referred 
 to a committee, and the committee reported that 
 the seat was vacant ; but as it was only a day or 
 two before the adjournment of the legislature, no 
 action was taken upon it, and the report was laid 
 upon the table without any decision being made. 
 It was the decision of the majority of the com 
 mittee, that the seat was vacant, under the eighth 
 article of the Constitution. Now, Sir, I should 
 like to understand this matter. I agree with the 
 gentleman for Berlin, and I thought so last 
 winter, that the article was ambiguous, and I 
 want to make sense of it. I should like to know 
 whether, under this article, a person could continue 
 to represent a town even after he had moved out 
 of the State ; for if so, I think it should be amend- 
 
72d day.] 
 
 REVISED CONSTITUTION. 
 
 673 
 
 Monday,] 
 
 SCHOULER LORD WILKINSON GARDNER DANA. 
 
 [August 1st. 
 
 ed. There is no propriety whatever in allowing 
 a person to represent a town after he ceased to be 
 an inhabitant of the State, although it might not 
 be so bad if he merely removed from one part of 
 the State to another part ; but an inhabitant of 
 another State certainly cannot represent the people 
 of this State. We had up last year and that is 
 what brought the matter before us one of the 
 most important bills, that with regard to the liquor 
 law ; and there are many gentlemen here who 
 will recollect it was defeated by a tie-vote, the 
 gentleman from Blackstone voting upon one side. 
 There was another bill passed here, assessing 
 taxes to the amount of $300,000 upon the people 
 of the Commonwealth ; and now the question for 
 this Convention to decide is, whether a man who 
 has moved out of this Commonwealth and is an 
 inhabitant of another State, has a right to come 
 into our legislature and vote to tax our people. 
 If the construction at present is, that a man shall 
 continue to be a representative after he has re 
 moved his residence from the State, I think this 
 article should be amended so that he shall cease 
 to be a representative after he has left the county 
 or town where he was chosen and above all, 
 when he leaves the State. 
 
 The question being taken on the amendment 
 of Mr. Morton, it was not agreed to. 
 
 Mr. LORD, of Salem. I desire to know 
 whether this is not a matter of right that this 
 should go in, if anybody desires it r It is printed 
 as a part of our present Constitution, and no 
 action of the Convention has stricken it out. I 
 desire to have it put in as we always have had it 
 in, and inasmuch as there is no authority that I 
 can see for leaving it out. 
 
 The PRESIDENT. It seems from the Report 
 of the Committee, that their judgment was that 
 these words are not a part of the Constitution. 
 They have so reported. The Chair cannot say 
 that they are such a part of the Constitution as 
 will go into the present draft upon the claim of a 
 single member ; and therefore the question has 
 been submitted to the judgment of the Conven 
 tion. 
 
 Mr. LORD. I desire to ask the Committee 
 what draft of the Constitution they look upon as 
 authentic. I am not sure that the Convention 
 did not reject this on the ground that it should 
 go in as a matter of right and not as amendment. 
 If those words are a part of our present Constitu 
 tion, they belong there as a matter of right/ be 
 cause this Convention has not stricken them out. 
 
 Mr. WILKINSON, of Dedham. I understand 
 that the Chair rules that these words are not in 
 the Constitution ? 
 
 The PRESIDENT. The gentleman misunder 
 
 stands the Chair. The Chair understands that 
 the Committee have reported that they are not a 
 part of the Constitution. 
 
 Mr. WILKINSON. It seems to me that there 
 ought to be some way for the Convention to settle 
 the question. 
 
 The PRESIDENT. The Chair has not ruled 
 that they are not a part of the Constitution, for if 
 that had been the ruling, the Chair would not 
 have submitted the motion of the gentleman from 
 Taunton, (Mr. Morton). The question has been 
 submitted to the Convention, and the Convention 
 have decided not to insert the words. 
 
 Mr. WILKINSON. It strikes me clearly that 
 the words are in the present Constitution. I see 
 that the article now reported by the Committee is 
 entitled on the margin "qualification." I there 
 fore supposed that a person in order to be elected 
 must be an inhabitant ; that is a qualification 
 which he should possess at the time of the election. 
 He must have been an inhabitant for the next 
 twelve months preceding his election, and that 
 necessarily implies that at the time of his election 
 he shall be an inhabitant, for he cannot have been 
 an inhabitant for the twelve months next preced 
 ing his election, unless at the time of his election 
 he is an inhabitant. Well, then, inhabitancy is 
 one of the qualifications necessary to constitute a 
 representative, and when the Constitution pro 
 vides that he should have all those qualifications, 
 and that they should continue till the election, it 
 seems to me clear that the limitation implies the 
 qualification of inhabitancy. It seems to me that 
 inhabitancy is a qualification, and that the quali 
 fication must continue. If, however, as seems to 
 be the opinion of some gentlemen, it is best to 
 alter the Constitution, then it may be proper to 
 introduce such a resolution. At any rate, it is 
 proper that we should have a perfect understand 
 ing of this matter. It ought to be settled one 
 way or another, and therefore it seems proper, if the 
 President rules this an amendment in substance, 
 and therefore out of order, that the question 
 should at sometime be raised. 
 
 The PRESIDENT. The Chair did not rule 
 that. It stated the question to the Convention, 
 and the Convention has voted upon it. 
 
 Mr. GARDNER, of Boston. Has the Chair 
 decided the motion of the gentleman from Boston ? 
 
 The PRESIDENT. It has been decided by 
 the Convention. 
 
 Mr. WILKINSON. I move to reconsider the 
 vote by which the motion of the gentleman from 
 Taunton, (Mr. Morton,) was rejected. 
 
 Mr. DANA, for Manchester. I think it pos 
 sible that there is a little misapprehension in the 
 minds of members of the Convention. By turn- 
 
674 
 
 REVISED CONSTITUTION. 
 
 [72d day. 
 
 Monday,] 
 
 DAXA GRAY. 
 
 [August 1st. 
 
 ing to page eightieth of the Rules and Orders of 
 the Convention, you will find in the middle of 
 article third, of section third, chapter first, a part 
 put in brackets. It is assumed, in the debates, 
 that the putting of that part in brackets is a legal 
 act done by some authority, and that all not in 
 brackets is not a part of the Constitution. That 
 is not so. The people of Massachusetts have 
 never adopted those brackets in any way. 
 The following is the third article : 
 
 III. Every member of the House of Represent 
 atives shall be chosen by written votes ; and, for 
 one year at least next preceding his election, shall 
 have been an inhabitant of, [and have been seized 
 in his own right of, a freehold of the value of one 
 hundred pounds, within the town he shall be 
 chosen to represent, or any ratable estate to the 
 value of two hundred pounds ;] and he shall 
 cease to represent the said town immediately on 
 his ceasing to be qualified as aforesaid. 
 
 Here you see the bracket is put after the word 
 " pounds " instead of after the word " aforesaid," 
 as it should have been. You may ask how the 
 brackets came there. The answer is this : In 
 1780, the whole of the third article stood, requir 
 ing two qualifications, that of previous residence, 
 and a freehold of the value of one hundred 
 pounds, and the provision that a member should 
 cease to represent a town immediately on his 
 ceasing to be qualified as aforesaid. 
 
 If, then, gentlemen will turn to the 114th page 
 of the same book, at the bottom of that page they 
 will find this amendment : 
 
 No possession of a freehold, or of any other 
 estate, should be required as a qualification for 
 holding a seat in either branch of the General 
 Court, or in the Executive Council. 
 
 Then the question is and it is an open ques 
 tion, and one never ruled upon by the people of 
 the Commonwealth did the passage of that 
 amendment strike out all of the latter part, or 
 only a portion of the latter part of the third sec 
 tion ? Judge Gushing saw fit to put the brackets 
 after the word "pounds" in his edition of the 
 Constitution which he got up for sale, as a private 
 matter. Another edition might have put it after 
 the word aforesaid. The legislature has printed 
 the Constitution after Judge Gushing s edition, 
 but only for convenience, and not enacting con 
 stitutional law by brackets. 
 
 The words " and he shall cease to represent the 
 said town immediately on his ceasing to be qual 
 ified as aforesaid," have no more virtue than the 
 part in brackets. The fact that the words stand 
 within or without the brackets, has no effect 
 whatever. Then it is an open question as to 
 
 what is the effect of the last clause on page 114, 
 which I have read. The Committee were of 
 opinion that it only affected the qualification of 
 freehold, because the qualification that a man 
 should have resided for one year, is a thing which 
 either existed at the time or not, and if it did 
 exist at the time, it never ceased to exist after 
 wards. Could a man ever cease to have been 
 twenty- one years of age, after he had once been 
 so at a given time ? 
 
 Mr. GRAY, of Boston. I agree that the gen 
 tleman for Manchester has stated the question 
 fairly, and that is, that gentlemen, whichever side 
 they take, are not to rest their position upon these 
 brackets. I am very sorry that this digest was 
 ever made and adopted. If this were the proper 
 occasion, a. c-mld point out very important blun 
 ders in this respect. 
 
 If we take the text of the Constitution of 1780, 
 and as it existed until 1840, we find the third 
 clause as it stands, as it has been read by the gen 
 tleman for Manchester, beginning with the words, 
 " every member," and ending with the word 
 "aforesaid." No person raised a construction 
 upon that. But, in 1840, the people adopted an 
 amendment, in which there was a clause, very 
 clear and distinct, that no possession of freehold 
 or other estate should be required as a qualifica 
 tion for either branch of the legislature, or the 
 council. Now, I am ready, with the gentleman 
 for Manchester, to reconcile those two clauses. 
 
 Every member of the House of Representatives 
 shall be chosen by written votes. But what 
 qualification must he have ? What incident, ac 
 cident and possession, must he have to qualify him 
 for a seat? He must, for one year preceding his 
 election, have been an inhabitant of the town, and 
 " he shall cease to represent the said town imme 
 diately on his ceasing to be qualified as aforesaid." 
 I contend that upon every fair principle of con 
 struction, that the clause, " he shall cease," &c., 
 refers to the first part of the qualification, as well 
 as to the last ; refers to the residence, as making 
 a part of the qualification. It is a question of 
 construction. I say it is a question upon which 
 I never entertained a doubt ; and, until the de 
 cision of the Committee, I did not suppose that 
 any other one did. I have heard that in this Com 
 mittee, or in some other committee, the question 
 was raised upon striking out this qualification. 
 I do maintain that this is an essential part of 
 the qualification, and the words, " he shall cease," 
 &c., refers to one as well as to the other. The 
 last part being qualified by the act of 1840, we 
 need say nothing about that. The question is 
 this, and it is an important one : Shall the Con 
 vention now do what they have not yet done, 
 
72d day.] 
 
 REVISED CONSTITUTION. 
 
 675 
 
 Monday,] 
 
 LORD GRAY. 
 
 [August 1st. 
 
 shall they abolish the qualification of residence ? 
 I think that has not been done, and if it is to be 
 done, I object to it. 
 
 This is a question of so much consequence, 
 that I venture to ask the yeas and nays upon the 
 motion to reconsider. 
 
 The yeas and nays were ordered one- fifth of 
 the members present voting therefor. 
 
 Mr. LORD, of Salem. I desire to call the at 
 tention of those gentlemen who think that this 
 does not relate to anything but the freehold, to 
 this point, whether this proposition of the Consti 
 tution requires that the person to be elected shall 
 be an inhabitant of the town at the time of his 
 election ? And if they hold that he must be an 
 inhabitant of the town at the time of his election, 
 where do they get that proposition, except from 
 the phraseology that he must have been an inhab 
 itant for twelve months next preceding ? Then, 
 if he must have been an inhabitant for twelve 
 months next preceding, and if that phraseology, 
 by its own force imputes a present inhabitancy, 
 the same qualification which requires a twelve 
 months residence requires a present inhabitancy. 
 If gentlemen will remark the next article as it 
 stood in the original Constitution, they will per 
 ceive that the same phraseology is used, and there 
 nobody doubts that present inhabitancy is re 
 quired. The fourth article in the original Con 
 stitution, was this: 
 
 IV. [Every male person, being twenty- one 
 years of age, and resident in any particular town 
 in this Commonwealth, for the space of one year 
 next preceding, having a freehold estate within 
 the same town, of the annual income of three 
 pounds, or any estate of the value of sixty pounds, 
 shall have a right to vote in the choice of a rep 
 resentative or representatives for the said town.] 
 
 Now, Sir, does that require present inhabi 
 tancy ? 
 
 The hour of two o clock having arrived, the 
 President adjourned the Convention until three 
 o clock, P. M. 
 
 AFTERNOON SESSION. 
 
 The Convention reassembled at three o clock, 
 P. M., and resumed the consideration of the un 
 finished business of the morning session. 
 
 Mr. GRAY, of Boston. It will be recollected 
 (hat I this morning moved the yeas and nays 
 upon the question now before the Convention. 
 I am unwilling, when not compelled to do so. to 
 make a motion which merely takes up the time 
 of the Convention, or even to appear to make 
 such a motion. I find that the question of resi 
 
 dence of members as a qualification, is disposed of, 
 to a great degree, by another article, and though 1 
 still adhere to my argument, I do not think it 
 important that the yeas and nays should be called, 
 and perhaps other gentlemen who voted with me 
 will think so also. I therefore move a reconsid 
 eration of the vote by which the yeas and nays 
 were ordered. I trust gentlemen will observe 
 that this in no way affects my argument as ap 
 plied to the main question. 
 
 Mr. LORD, of Salem. I should like to have 
 the gentleman from Boston tell us what other 
 provision he refers to, as disposing of this ques 
 tion, to some degree ? 
 
 Mr. GRAY. I refer to article eighth of chap 
 ter third of the new Constitution. I had the 
 impression when I made the motion, that that 
 disposed of the whole question of qualification, 
 but it does not, and my justification is, I had but 
 little time to go over the pamphlet containing the 
 Report of the Committee. Though I think it an 
 important question, still, finding the matter stand 
 ing in a different position from what I had sup 
 posed, I do not wish to have the time of the Con 
 vention taken up by calling the yeas and nays. 
 
 The question was then taken upon the motion 
 to reconsider the vote by which the yeas and nays 
 were ordered, and it was decided in the affirma 
 tive. 
 
 Mr. GRAY. I now withdraw my motion for 
 the yeas and nays. 
 
 The question then recurred upon the motion 
 offered by Mr. Wilkinson, to reconsider the vote 
 by which the Convention rejected the motion of 
 the gentleman from Taunton, (Mr. Morton). 
 
 Mr. GRAY. I beg leave to make a remark 
 or two. It has been conceded, I believe, that 
 if there is anything in the old Constitution which 
 has not been struck out, it goes into the new 
 Constitution, as a matter of course, and as a 
 matter of right. Now, Sir, it appears to me to 
 be a clear case, as it did to my friend from Salem, 
 that these words have not been rightfully struck 
 out by the Committee; that they have never 
 been struck out by the Convention. I make 
 these suggestions to bring the matter once more 
 to the consideration of the Chair, and of the 
 House. It is not a question whether we had 
 better do one thing or the other, but whether 
 they are not left in by the action of the Conven 
 tion. 
 
 I wish merely to make myself fully under 
 stood. Article eighth of chapter third, of the Re 
 port of this Committee, provides that every mem 
 ber of the House of Representatives shall have 
 been, for one year next at least, preceding his 
 election, an inhabitant of the town he shall be 
 
676 
 
 REVISED CONSTITUTION. 
 
 [72d day. 
 
 Monday," 
 
 CHAPIN LORD. 
 
 [August 1st. 
 
 chosen to represent. That, Sir, as I have stated, 
 provides, in a great degree, for the question of 
 residence ; but there is another branch which is 
 not provided for, though, as I contend, it is pro 
 vided for in the old Constitution, and that is, 
 that he shall cease to be a representative when he 
 ceases to be a resident. Now, the Committee 
 have struck out those words ; and what I con 
 tend for, is, that the Convention never did strike 
 them out, and every-body agrees they are in the 
 old Constitution, and the Committee in doing it 
 committed a mistake ; and they should go in 
 here as a matter of course. 
 
 Mr. CHAPIN, of Worcester. The question, 
 I believe, is on the motion of the gentleman from 
 Dedham. 
 
 The PRESIDENT. The question is on the 
 motion to reconsider the vote by which the amend 
 ment of the gentleman from Taunton, (Mr. Mor 
 ton,) was rejected. 
 
 The question was then taken, and on a di 
 vision, there were ayes, 39 ; noes, 103. 
 
 So the motion to reconsider was not agreed to. 
 
 Mr. LORD, of Salem. I move that all that 
 portion of chapter third which relates to the 
 House of Representatives, involving articles two, 
 three, and four, be stricken out of this chapter, 
 and submitted to the people as a separate amend 
 ment. The articles are as follows : 
 
 AHT. 2. And in order to provide for a repre 
 sentation of the citizens of this Commonwealth, 
 founded upon the principle of equality, every 
 corporate town, containing less than one thou 
 sand inhabitants, may elect one representative in 
 the year when the valuation of estates shall be 
 settled, and, in addition thereto, one representa 
 tive five years in every ten years. Every town 
 containing one thousand inhabitants and less 
 than four thousand, may elect one representative. 
 Every town containing four thousand inhabitants 
 and less than eight thousand, may elect two rep 
 resentatives. Every town containing eight thou 
 sand inhabitants and less than twelve thousand, 
 may elect three representatives. Every city or 
 town containing twelve thousand inhabitants, may 
 elect four representatives. Every city or town 
 containing over twelve thousand inhabitants, may 
 elect one additional representative for every four 
 thousand inhabitants it shall contain, over twelve 
 thousand. Any two towns, each containing less 
 than one thousand 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 repre 
 sentative 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 one thousand inhabi 
 tants. And this apportionment shall be based 
 upon the census of the year eighteen hundred and 
 fifty, until a new census shall be taken. 
 
 ART. 3. The Senate, at its first session after 
 this Constitution shall have been adopted, and at 
 its first session after the next State Census shall 
 have been taken, and at its first session next after 
 each decennial State Census thereafterwards, shall 
 apportion the number of Representatives to which 
 each town and city shall be entitled, and shall 
 cause the same to be seasonably published ; and 
 in all apportionments after the first, the numbers 
 which shall entitle any town or city, to two, 
 three, four, or more Representatives, shall be 
 increased or diminished in the same proportion 
 as the population of the whole Commonwealth 
 shall bave increased or decreased since the last 
 preceding apportionment. 
 
 ART. 4. No town hereafter incorporated, con 
 taining less than fifteen hundred inhabitants, shall 
 be entitled to choose a representative. 
 
 Mr. LORD. I do not think that we shall do our 
 duty to those who sent us here, and who cer 
 tainly have a right to have a separate vote upon 
 amendments so important as these, unless we 
 provide that right. I think it is desired by the 
 people that they should pass upon all very im 
 portant changes, upon their merits separately. I 
 do not believe that the people of this Common 
 wealth want to have things that they like, and 
 things that they do not like, mixed together, and 
 then to be told " you must take both, or get nei 
 ther." I think the people of the Commonwealth 
 are as capable of deciding on what they want, as 
 this Convention is. When gentlemen profess to 
 have so much respect for the people, I want them 
 to understand that I think the people have quite 
 as much discrimination as we have, and that they 
 are quite as capable of judging of what they want, 
 as we are to judge for them ; and I have no hes 
 itation in saying that they would prefer to pass 
 upon this question of the basis of representation, 
 without having it sweetened with something the 
 Convention thinks they would like. The Con 
 vention in effect, says : " We want the people to 
 take this basis of representation which we have 
 prepared for them. We know that the natural 
 sense of justice inherent in the people will never 
 allow them to pass this system as it is ; but 
 we will sweeten it to make it palatable, and thus 
 we will compel them to take this thing which 
 they do not like, with something which they do 
 like." 
 
 Sir, I desire to have somebody point out to me 
 any difficulty that exists in the way of these 
 three articles being put at the end of the eight 
 propositions on which you propose to take the 
 vote of the people separately, and to make them 
 proposition number nine, for the same purpose, 
 and say as we propose to say in regard to the 
 other eight propositions " If these articles be 
 adopted and ratified, then they shall be a part of 
 
72d day.] 
 
 REVISED CONSTITUTION. 
 
 677 
 
 Monday,] 
 
 LOUD HILLARD. 
 
 [August 1st. 
 
 the Constitution ; and if they are not adopted 
 and ratified, then the present basis shall stand as 
 the basis of representation until it is changed by 
 some competent authority ? " I want to know 
 the difficulty in the way of this ? What is it ? 
 Where is it ? Is it not as easy to submit separ 
 ately a question of such vast moment and import 
 ance as this, as any one of the eight propositions 
 on which you propose to take a separate vote ? 
 Quite as easy, Mr. President, and much more 
 desirable ; but the real fact is, that it is an unjust 
 proposition, and gentlemen know it ; and, know 
 ing that, they sagaciously conclude that the peo 
 ple will not swallow it without some sweetening ; 
 that the people will reject it unless something is 
 put along with it to make it palatable. 
 
 My idea is and the people will eventually 
 acknowledge that it is the true one, whatever may 
 be done by this Convention that no one propo 
 sition which may be popular, ought to be com 
 pelled to drag after it an unpopular one, nor 
 should an unpopular proposition be permitted to 
 hang, for its success, upon the skirts of a popular 
 one. Nobody in this Convention believes that 
 there is the slightest difficulty or obstruction in 
 the way of putting this matter as a separate ques 
 tion to the people except that party in the Con 
 vention who fear to trust the people, arid who are 
 determined to dragoon them into the adoption of 
 this measure, if they can do so by any possible 
 means. Talk not to me about " trusting the 
 people," when you dare not say to them " Will 
 you have this, or will you have that ? " Sir, I 
 was surprised at the argument of the gentleman 
 for Berlin, in regard to this question, when he 
 professed to entertain great fear that if the ques 
 tion of the basis of representation were put alter 
 nately, as between two systems, there would be 
 danger of losing both! Sir, in adopting the 
 amendment which I suggest, we do not propose 
 to do anything except to say that, in case the 
 system you have now incorporated into your 
 Constitution should not meet the approbation of 
 the popular will, the system as we now have it 
 shall remain as it is. There is, therefore, none of 
 the danger of which the gentleman speaks ; and 
 the only objection to taking this question separ 
 ately that I can see, is, a fixed determination to 
 cram this system down the throats of the people, 
 at the risk of losing all the other amendments, or 
 of remaining upon the old Constitution. I have 
 heard no reason that is at all satisfactory to~my 
 mind nor have I heard any that I think will 
 satisfy the people why particular articles should 
 be taken from the Constitution and put by them 
 selves, while others are not so. I regard this 
 question of representation as one of the most vital 
 
 questions that has come before us ; and, in refer 
 ence to it, I deem it so important for the people 
 to know who are willing that they should pass 
 upon it by itself a proposition which, in my 
 judgment, the people would reject with scorn, as 
 an injustice that they would be unwilling to per 
 petrate and also because, as a member of this 
 Convention, I feel desirous that my constituents 
 should have an opportunity of voting simply 
 "yes" or "no" upon this matter, I ask, that 
 when the question is taken upon my amendment, 
 it may be taken by the yeas and nays. 
 
 The yeas and nays were accordingly ordered, 
 on a division, the vote being ayes, 55 ; noes, 
 163. 
 
 Mr. HILLARD, of Boston. As it is so soon 
 after dinner, I wish to be allowed to recite, for 
 the benefit of the Convention, and in answer to 
 the suggestion of my friend from Salem, (Mr. 
 Lord,) an Eastern apologue. 
 
 Once upon a time an Arab was sick unto 
 death, and he vowed a vow to the prophet that he 
 would offer for sale his only camel, for five pieces 
 of gold, if he were restored to health. When he 
 got well he felt sorely perplexed as to how he 
 should keep his vow a perplexity, I fancy, 
 something like that which is experienced by the 
 majority of the Convention, in regard to the 
 opinions expressed, and promises heretofore made, 
 and the mode in which they will show to the 
 people, next November, how they have been 
 true to those opinions and promises. 
 
 But the way that the Arab got out of his diffi 
 culty, was this : He sent his camel to the market 
 to be sold, but he sent it with a cat tied round its 
 neck, and he ordered the crier to proclaim : " The 
 camel for five pieces of gold, and the cat for one 
 hundred, but both must be sold together." Thus 
 there arose a saying which passed into a proverb : 
 " How cheap the camel would be, if it were not 
 for that cursed thing around its neck ! " 
 
 So it is with the discordant provisions contained 
 in the first proposition to be submitted to the 
 people. The cat and the camel must be sold to 
 gether. He who wants only one, must take both 
 or none. [Laughter.] 
 
 Mr. LOUD. I think the question should em 
 brace the second, third, fourth, and fifth articles. 
 When I moved the amendments, I only included 
 the second, third, and fourth. I now move to 
 add the fifth, as follows : 
 
 ART. 5. Each city in this Commonwealth, 
 shall be divided, by such means as the Legislature 
 may provide, into districts of contiguous territory, 
 as nearly equal in population as may be, for the 
 election of representatives, which districts shall 
 not be changed oftener than once in five years : 
 
678 REVISED CONSTITUTION. 
 
 [72d day. 
 
 * 
 Monday,] YEAS NAYS. 
 
 [August 1st. 
 
 provided, towever, that no one district shall be en- Baker, Hillel 
 
 Fiske, Emery 
 
 titled to elect more than three representatives. 
 
 Ball, George S. 
 
 Fowle, Samuel 
 
 
 Bancroft, Alpheus 
 
 Freeman, James M. 
 
 As the order for the yeas and nays did not in 
 
 Bartlett, Russel 
 
 French, Charles A. 
 
 clude the question on the fifth article, I hope it 
 
 Barrett, Marcus 
 
 French, Rodney 
 
 may, by general consent, be included without the 
 necessity of calling for another division. 
 No objection was made, and the fifth article 
 
 Bates, Eliakim A. 
 Beal, John 
 Bennett, William, Jr. 
 Bennett, Zephaiiiah 
 
 French, Samuel 
 Gardner, Johnson 
 Gates, Elbridge 
 Gilbert, Wanton C. 
 
 was included in the question to be taken by the 
 
 Bigelow, Edward B. 
 
 Gilbert, Washington 
 
 yeas and nays, which were then taken, and re 
 
 Bird, Francis W. 
 
 Giles, Charles G. 
 
 sulted yeas, 91 ; nays, 205 as follows : 
 
 Booth, William S. 
 Boutwell, Geo. S. 
 
 Gooch, Daniel W. 
 Gooding, Leonard 
 
 "VT? A d 
 
 Bout well, Sewell 
 
 Graves, JohnW. 
 
 JLJ&AO* 
 
 Breed, Hiram N. 
 
 Green, Jabez 
 
 Abbott, Alfred A. Jenkins, John 
 
 Bronson, Asa 
 
 Greene, William B. 
 
 Adams, Benjamin P. Jenks, Samuel H. 
 
 Brown, Adolphus F. 
 
 Griswold, Jo.siah W. 
 
 Aldrich, P. Emory Kellogg, Giles C. 
 
 Brown, Alpheus R. 
 
 Griswold, Whiting 
 
 Aspiiiwall, William Kuhn, George, H. 
 
 Brown, Artemas 
 
 Hadley, Samuel P. 
 
 Ayres, Samuel Lincoln, Abishai 
 
 Brown, Hammond 
 
 Hallett, B. F. 
 
 Burtlett, Sidney Littlefield, Tristram 
 
 Brown, Hiram C. 
 
 Hapgood, Seth 
 
 Beach, Erasmus D. Livermore, Isaac 
 
 Brownell, Frederick 
 
 Harmon, Phineas 
 
 Bigelow, Jacob Lord, Otis P. 
 
 Brownell, Joseph 
 
 Hayden, Isaac 
 
 Bradbury, Ebenezer Lothrop, Samuel K. 
 
 Bryant, Patrick 
 
 Hazewell, Charles C. 
 
 Bradford, William J. A, Loud, Samuel P. 
 
 Buck, Asahel 
 
 Heath, Ezra, 2d, 
 
 Braman, Milton P. Lowell, John A. 
 
 Bullen, Amos H. 
 
 Hewes, William H. 
 
 Bullock, Rufus Miller, Seth, Jr. 
 
 Burlingame, Anson 
 
 Heywood, Levi 
 
 Choate, Rufus Morey, George 
 
 Butler, Benjamin F. 
 
 Hobart, Henry 
 
 Cogswell, Nathaniel Morss, Joseph B. 
 
 Caruthers, William 
 
 Hobbs, EdAvin 
 
 Cook, Charles E. Morton, Marcus 
 
 Case, Isaac 
 
 Holder, Nathaniel 
 
 Cooledge, Henry F. Noyes, Daniel 
 
 Chandler, Amariah 
 
 Hood, George 
 
 Copeland, Benjamin F. Oliver, Henry K. 
 
 Chapin, Chester W. 
 
 Howard, Martin 
 
 Davis, John Paige, James W. 
 
 Chapn, Daniel E. 
 
 Howland, Abraham H. 
 
 Davis, Solomon Park, John G. 
 
 Chapin, Henry 
 
 Hoyt, Henry K. 
 
 Denison, Hiram S. Parker, Adolphus G. 
 
 Chllds, Josiah 
 
 Hurlbut, Moses C. 
 
 Eaton, Lilley Parker, Joel 
 
 Clark, Henry 
 
 Ide, Abijah M., Jr. 
 
 Ely, Homer Perkins, Daniel A. 
 
 Clark, Ransom 
 
 Jacobs, John 
 
 Farwell, A. G. Perkins, Jonathan C. 
 
 Clark, Salah 
 
 Johnson, John 
 
 Fowler, Samuel P. Plunkett, William C. 
 
 Clarke, Alpheus B. 
 
 Kendall, Isaac 
 
 French, Charles H. Pomroy, Jeremiah 
 
 Clarke, Sdllman 
 
 Keycs, Edward L. 
 
 Gardner, Henry J. Putnam, George 
 
 Cole, Lansing J. 
 
 Kimball, Joseph 
 
 Gould, Robert Rantoul, Robert 
 
 Cole, Sumner 
 
 Kingman, Joseph 
 
 Goulding, Dalton Read, James 
 
 Crane, George B. 
 
 Knight, Hiram 
 
 Gray, John C. Reed, Sampson 
 
 Cressy, Oliver S. 
 
 Knight, Jefferson 
 
 Hale, Artemas Sargent, John 
 
 Crittenden, Simeon 
 
 Knight, Joseph 
 
 Hammond, A. B. Souther, John 
 
 Cross, Joseph W. 
 
 Knowlton, J. S. C. 
 
 Haskell, George Stetson, Caleb 
 
 Cushman, Henry W. 
 
 Knowlton, William H. 
 
 Hathaway, Eliiathan P. Stevens, Charles G. 
 
 Cushman, Thomas 
 
 Knox, Albert 
 
 Hawkes, Stephen E. Stevenson, J. Thomas 
 
 Cutler, Simeon N. 
 
 Ladd, Gardner P. 
 
 Hayward, George Talbot, Thomas 
 
 Dana, Richard H., Jr. 
 
 Langdon, Wilber C. 
 
 Heard, Charles Thompson, Charles 
 
 Davis, Ebenezer 
 
 Lawrence, Luther 
 
 Hersey, Henry Tyler, John S. 
 
 Davis, Isaac 
 
 Leland, Alden 
 
 Hewes, James Upton, George B. 
 
 Davis, Robert T. 
 
 Little, Otis 
 
 Hillard, George S. Walcott, Samuel B. 
 
 Dean, Silas 
 
 Marble, William P. 
 
 Hooper, Foster Wheeler, William F. 
 
 Doming, Elijah S. 
 
 Marvin, Abijah P. 
 
 Hopkinson, Thomas Wilbur, Joseph 
 
 Denton, Augustus 
 
 Mason, Charles 
 
 Houghton, Samuel Wilder, Joel 
 
 Duncan, Samuel 
 
 Merritt, Simeon 
 
 Hubbard, William J. Wilkinson, Ezra 
 
 Dunham, Bradish 
 
 Monroe, James L. 
 
 Hunt, William Williams, Henry 
 
 Durgin, John M. 
 
 Moore, James M. 
 
 Hurlburt, Samuel A. AVilson, Milo 
 
 Eames, Philip 
 
 Morton, Elbridge G. 
 
 Jackson, Samuel 
 
 Eaiie, John M. 
 
 Morton, Marcus, Jr. 
 
 
 Easland, Peter 
 
 Morton, William S. 
 
 
 Eaton, Calvin D. 
 
 Nash, Hiram 
 
 NAYS. 
 
 Edwards, Elisha 
 
 Nayson, Jonathan 
 
 Adams, Shubael P. Alley, John B. 
 
 Edwards, Samuel 
 
 Nichols, William 
 
 Allen, Charles Allis, Josiah 
 
 Fay, Sullivan 
 
 Nute, Andrew T. 
 
 Allen, James B. Alvord, D. W. 
 
 Fellows, James K. 
 
 Orne, Benjamin S. 
 
 Allen, Joel C. Austin, George 
 
 Fisk, Lyman 
 
 Osgood, Charles 
 
72d day.] 
 
 REVISED CONSTITUTION. 679 
 
 Monday,] 
 
 ABSENT GARDNER. [August 1st. 
 
 Packer, E. Wing 
 
 Stevens, Granville Loomis, E. Justin Stevens, Joseph L., Jr. 
 
 Paine, Benjamin 
 
 Stevens, William 
 
 Marcy, Laban Storrow, Charles S. 
 
 Paine, Henry 
 
 Stiles, Gideon 
 
 Marvin, Theophilus R. Strong, Alfred L. 
 
 Parris, Jonathan 
 
 Taber, Isaac C. 
 
 Meader, Reuben Stutson, Wilh am 
 
 Partridge, John 
 
 Taft, Arnold 
 
 Mixter, Samuel Sunnier, Charles 
 
 Peabody, Nathaniel 
 
 Thayer, Willard, 2d 
 
 Newman, Charles Sumner, Increase 
 
 Peiiniman, John 
 
 Thomas, John W. 
 
 Norton, Alfred Swain, Alansou 
 
 Perkins, Jesse 
 
 Tilton, Abraham 
 
 Ober, Joseph E. Taylor, Ralph 
 
 Perkins, Noah C. 
 
 Tyler, William 
 
 Orcutt, Nathan Thayer, Joseph 
 
 Phinney, Silvanus B. 
 
 Underwood, Orison 
 
 Parker, Samuel D. Tileston, Edmund P. 
 
 Pierce, Henry 
 
 Viles, Joel 
 
 Parsons, Samuel C. Tilton, Horatio W. 
 
 Putnam, John A. 
 
 Yinton, George A. 
 
 Parsons, Thomas A. Tower, Ephraim 
 
 Pvawson, Silas 
 
 Wallace, Frederick T. 
 
 Payson, Thomas E. Train, Charles R. 
 
 Rice, David 
 
 Wallis, Freeland 
 
 Peabody, George Turner, David 
 
 Richards, Luther 
 
 Walker, Amasa 
 
 Pease, Jeremiah, Jr. Turner, David P. 
 
 Richardson, Daniel 
 
 Ward, Andrew H. 
 
 Phelps, Charles Upham, Charles W. 
 
 Richardson, Nathan 
 
 Weston, Gershom B. 
 
 Pool, James M. Wales, Bradford L. 
 
 Richardson, Samuel H. 
 
 White, Benjamin 
 
 Powers, Peter Walker, Samuel 
 
 Ring, Elkanah, Jr. 
 
 White, George 
 
 Preston, Jonathan Warner, Marshal 
 
 Rogers, John 
 
 Whitney, Daniel S. 
 
 Prince, F. O. Warner, Samuel, Jr. 
 
 Ross, David S. 
 
 Whitney, James S. 
 
 Rockwell, Julius Waters, Asa H. 
 
 Royce, James C. 
 
 Wilbur, Daniel 
 
 Rockwood, Joseph M. Weeks, Cyrus 
 
 Sanderson, Amasa 
 
 Williams, J. B. 
 
 Sampson, George R. Wetmore, Thomas 
 
 Sanderson, Chester 
 
 Wilson, Henry 
 
 Schouler, William Wilkins, John H. 
 
 Sherril, John 
 
 Wilson, Willard 
 
 Sheldon, Luther Winn, Jonathan B. 
 
 Simmons, Perez 
 
 Winslow, Levi M. 
 
 Sherman, Charles Wood, William H. 
 
 Simonds, John ~SV. 
 
 Wood, Charles C. 
 
 Sikes, Chester Woods, Josiah B. 
 
 Smith, Matthew 
 
 Wood, Nathaniel 
 
 Sleeper, John S. 
 
 Sprague, Melzar 
 Spooner, Samuel W. 
 
 Wood, Otis 
 Wright, Ezekiel 
 
 Absent and not voting, 123. 
 
 Stacy, Eben H. 
 
 
 Mr. GARDNER. I wish that this matter 
 
 ABSENT. 
 
 might, if possible, be sent out to the people with 
 
 
 
 out any contradiction of principle upon its face. 
 
 Abbott, Josiah G. 
 
 Dehon, William 
 
 The first article of this third chapter, is as follows : 
 
 Allen, Parsons 
 
 DeWitt, Alexander 
 
 
 Andrews, Robert 
 Appleton, William 
 Atwood, David C. 
 Ballard, Alvah 
 Banks, Nathaniel P., Jr 
 
 Doaiie, James C. 
 Dorman, Moses 
 E as ton, James, 2d 
 Ely, Joseph M. 
 . Eustis, William T. 
 
 ARTICLE 1. There shall be, in the Legislature 
 of this Commonwealth, a representation of the 
 people, annually elected, and founded upon the 
 principle of equality. 
 
 Barrows, Joseph 
 Bates, Moses, Jr. 
 
 Fitch, Ezekiel W. 
 Foster, Aaron 
 
 In order to make this article consistent with 
 
 Beebe, James M. 
 
 Foster, Abram 
 
 the one following it, I wish to amend it thus : 
 
 Bell, Luther V. 
 
 Frothmgham, Rich d, Jr. 
 
 strike out the word " people," in the second line, 
 
 Bishop, Henry W. 
 
 Gale, Liithcr 
 
 and insert the words " several towns ;" and also 
 
 Blagden, George W. 
 
 Giles, Joel 
 
 strike out the last word in the article, " equality," 
 
 Bliss, Gad O. 
 Bliss, Willam C. 
 
 Goulding, Jason 
 Greenleaf, Simon 
 
 J. J " 
 
 and insert the words " prerogative rights." It 
 
 Brewster, Osmyn 
 
 Hale, Nathan 
 
 will then read : 
 
 Brinley, Francis 
 
 Hall, Charles B. 
 
 
 Briggs, George N. 
 
 Hapgood, Lyman W. 
 
 ARTICLE 1. There shall be, in the Legislature 
 
 Bumpus, Cephas C. 
 
 Haskms, William 
 
 of this Commonwealth, a representation of the 
 
 Cady, Henry 
 
 Henry, Samuel 
 
 several towns, annually elected, and founded 
 
 Carter, Timothy W. 
 
 Hinsdale, William. 
 
 upon the principle of prerogative rights. 
 
 Churchill, J. McKean 
 
 Hobart, Aaron 
 
 
 Cleverly, William 
 
 Hunt, Charles E. 
 
 The PRESIDENT. The Chair is of opinion 
 
 Coggin, Jacob 
 
 Htmtington, Asahel 
 
 that the amendment is not in order, being one of 
 
 Conkey, Ithamar 
 Crockett, George W. 
 Crosby, Leander 
 
 Huntiiigton, Charles P. 
 Huntingtoii, George H. 
 Hyde, Benjamin D. 
 
 substance, and not of form. 
 No other amendment being offered, the third 
 
 Crowell, Seth 
 
 James, William 
 
 chapter, as amended, was finally passed, and the 
 
 Crowninshield, F. B. 
 
 Kellogg, Martin R. 
 
 Secretary proceeded to read chapter four, containing 
 
 Cummings, Joseph 
 Curtis, Wilber 
 Davis, Charles G. 
 Dawes, Henry L. 
 
 Kinsman, Henry W. 
 KnoAvlton, Charles L. 
 Ladd, John S. 
 Lawton, Job G., Jr. 
 
 provisions in relation to the governor and his title 
 his qualifications and tenure of office the mode 
 of his election, and by whom his powers, and the 
 
 Day, Gilman 
 
 Lincoln, Frederic W., Jr. 
 
 powers of the council notaries public coroners 
 
680 
 
 REVISED CONSTITUTION. 
 
 [72d day. 
 
 Monday,] 
 
 GOVERNOR. 
 
 [August 1st. 
 
 mode of drawing money from the treasury 
 the duties of public boards in regard to their re 
 turns and, lastly the salary of the governor, 
 the whole chapter containing twelve articles. It 
 is as follows : 
 
 ARTICLE 1. There shall be a supreme execu 
 tive magistrate, who shall be styled, THE GOVER 
 NOR or THE COMMONWEALTH OF MASSACHUSETTS. 
 
 ART. 2. The governor shall be a citizen of 
 Massachusetts, and shall be chosen annually, by 
 the inhabitants of the towns and cities of this Com 
 monwealth, on the Tuesday next after the first Mon 
 day in November. He shall hold his office for 
 one year next following the first Wednesday of 
 January, and until another is chosen and qualified 
 in his stead. And no person shall be eligible to 
 this office, unless, at the time of his election, he 
 shall have been an inhabitant of this Common 
 wealth for seven years next preceding. 
 
 ART. 3. Those persons who shall be qualified 
 to vote for senators and representatives, within 
 the several towns of this Commonwealth, shall, 
 at \L meeting to be called for that purpose, on the 
 Tuesday next after the first Monday in November, 
 annually, give in their votes for a governor, to 
 the selectmen, who shall preside at such meeting, 
 and the town clerk, in the presence and with the 
 assistance of the selectmen, shall, in open town 
 meeting, sort and count the votes, and form a list 
 of the persons voted for, with the number of votes 
 for each person against his name ; and shall make 
 a fair record of the same in the town books, and 
 a public declaration thereof in the said meeting ; 
 and shall, in the presence of the inhabitants, seal 
 up copies of the said list, attested by him and the 
 selectmen, and transmit the same to the sheriff of 
 the county, thirty days at least before the first 
 Wednesday in January; and the sheriff shall 
 transmit the same to the secretary s office seven 
 teen days at least before the said first Wednesday 
 in January ; or the selectmen may cause returns 
 of the same to be made to the office of the secre 
 tary of the Commonwealth seventeen days at 
 least before the said day ; and the secretary shall 
 lay the same before the Senate and the House of 
 Representatives, on the first Wednesday in Jan 
 uary, to be by them examined ; and in case of an 
 election, the choice shall be by them declared and 
 published. 
 
 ART. 4. The governor shall have authority, 
 from time to time, at his discretion, to assemble 
 and call together the councillors of this Common 
 wealth for the time being ; and the governor, 
 with the said councillors, or five of them at least, 
 shall, and may, from time to time, hold and keep 
 a Council, for the ordering and directing the 
 affairs of the Commonwealth, agreeably to the 
 Constitution and the laws of the land. 
 
 ART. 5. The governor, with advice of Council, 
 shall have full power and authority, during the 
 session of the General Court, to adjourn or pro 
 rogue the same to any time the two Houses shall 
 desire ; and in the recess of the said Court, to 
 prorogue the same from time to time, not exceed 
 ing ninety days in any one recess ; and to call it 
 together sooner than the time to which it may be 
 
 adjourned or prorogued, if the welfare of the 
 Commonwealth shall require the same; and in 
 case of any infectious distemper prevailing in the 
 place where the said Court is next, at any time 
 to convene, or any other cause happening, where 
 by danger may arise to the health or lives of the 
 members from their attendance, he may direct the 
 session to be held at some other, the most conve 
 nient place within the State. 
 
 ART. 6. In cases of disagreement between the 
 two Houses, with regard to the necessity, expe 
 diency or time of adjournment, or prorogation, 
 the governor, with advice of the Council, shall 
 have a right to adjourn or prorogue the General 
 Court, not exceeding ninety days, as he shall de 
 termine the public good shall require. 
 
 ART. 7. The power of pardoning offences, ex 
 cept such as persons may be convicted of before 
 the Senate, by an impeachment of the House, 
 shall be in the governor, by and with the advice 
 of Council ; but no charter of pardon, granted by 
 the governor, with advice of the Council, before 
 conviction, shall avail the party pleading the same, 
 notwithstanding any general or particular ex 
 pressions contained therein, descriptive of the 
 offence or offences intended to be pardoned. 
 
 ART. 8. Notaries public shall be appointed by 
 the governor, in the same manner as judicial offi 
 cers are appointed, and shall hold their offices 
 during seven years, unless sooner removed by the 
 governor, with the consent of the Council, upon 
 the address of both Houses of the General Court. 
 
 ART. 9. Coroners shall be nominated and ap 
 pointed by the governor, by and with the advice 
 and consent of the Council ; and every such nom 
 ination shall be made by the governor, and made 
 at least seven days prior to such appointment. 
 
 ART. 10. No moneys shall be issued out of 
 the treasury of this Commonwealth and disposed 
 of, (except such sums as may be appropriated for 
 the redemption of bills of credit or treasurer s 
 notes, or for the payment of interest arising there 
 on,) but by warrant under the hand of the gov 
 ernor for the time being, with the advice and con 
 sent of the Council, for the necessary defence and 
 support of the Commonwealth ; and for the pro 
 tection and preservation of the inhabitants thereof, 
 agreeably to the acts and resolves of the General 
 Court. 
 
 ART. 11. All public boards, the commissary- 
 general, all superintending officers of public mag 
 azines and stores, belonging to this Common 
 wealth, and all commanding officers of forts and 
 garrisons within the same, shall, once in every 
 three months, officially and without requisition, 
 and at other times, when required by the gover 
 nor, deliver to him an account of all goods, 
 stores, provisions, ammunition, cannon with their 
 appendages, and small arms with their accoutre 
 ments, and of all other public property whatever 
 under their care, respectively ; distinguishing the 
 quantity, number, quality and kind of each, as 
 particularly as may be ; together with the condi 
 tion of such forts and garrisons ; and the said 
 commanding officer shall exhibit to the governor, 
 when required by him, true and exact plans of 
 such forts, and of the land and sea, or harbor or 
 harbors, adjacent. 
 
72d day.] 
 
 REVISED CONSTITUTION. 
 
 681 
 
 Monday,] 
 
 HATHAWAY BOUT WELL MILLER. 
 
 August 1st. 
 
 And the said boards, and all public officers, 
 shall communicate to the governor, as soon as 
 may be after receiving the same, all letters, des 
 patches, and intelligences of a public nature, 
 which shall be directed to them respectively. 
 
 AIIT. 12. As the public good requires that the 
 governor should not be under the undue influence 
 of any of the members of the General Court, by 
 a dependence on them for his support that he 
 should, in all cases, act with freedom for the ben 
 efit of the public that he should not have his 
 attention necessarily diverted from that object to 
 his private concerns and that he should main 
 tain the dignity of the Commonwealth in the 
 character of its chief magistrate it is necessary 
 that he should have an honorable stated salary, 
 of a fixed and permanent value, amply sufficient 
 for those purposes, and established by standing 
 laws : and it shall be among the first acts of the 
 General Court, after the commencement of this 
 Constitution, to establish such salary by law ac 
 cordingly. 
 
 Mr. HATHAWAY, of Freetown. As there 
 was a question raised, and some difficulty felt 
 upon the subject, in regard to the qualifications of 
 members of the House of Representatives, as they 
 existed under the amended Constitution of 1820, 
 I wish to call the attention of the Convention to 
 another matter about which there seems to me to 
 be no question that is, the qualifications of a 
 governor. If I read the Constitution correctly as 
 it now stands, it requires that no person shall 
 be eligible to the office of governor, unless, at the 
 time of his election, he has been an inhabitant of 
 the Commonwealth for seven years next preced 
 ing such election. Here is the provision as it 
 stands in our present Constitution : 
 
 "The governor shall be chosen annually; and 
 no person shall be eligible to this office, unless, at 
 the time of his election, he shall have been an in 
 habitant of this Commonwealth for seven years 
 next preceding." 
 
 I would inquire whether there has been any 
 action of the Convention by which that provision 
 of our present Constitution was amended ? And 
 if there was no such action why is it omitted 
 here ? If I recollect rightly and I think I am 
 right, although I have not now the record of de 
 bates before me when this question was asked 
 on a former occasion, it was stated that the Com 
 mittee had only reported in part. The gentleman 
 from Worcester, (Mr. Davis,) and also my friend 
 from Wareham, (Mr. Miller,) were on that Com 
 mittee, and when I inquired in regard to ~this 
 matter, it was said that everything except those 
 matters in which the Committee recommended a 
 change would be retained, and ought to be re 
 tained in the Constitution. That was my answer. 
 Now, if there was any action of the Convention 
 
 46 3 
 
 in regard to this matter changing the requirement 
 of a seven years residence in the election of gov 
 ernor, I should like to be informed what that 
 action was, and when and under what circum 
 stances it was had. I make no motion for any 
 amendment, but I should certainly like to have 
 this explained. 
 
 Mr. EOUTWELL, for Berlin. I am not able 
 to answer the gentleman from Freetown, but I 
 think we have a resolution that will meet the 
 case. 
 
 Mr. MILLER, of Wareham. I recollect very 
 well when the Report first came up, the gentleman 
 from Freetown, (Mr. Hathaway,) inquired at the 
 time in reference to this qualification of a seven 
 years residence for a governor ; and that I then 
 rose in my place and stated that we intended 
 that provision to remain in the Constitution. 
 I have no recollection of any action of this 
 Convention alteiing the determination of the 
 Committee to whom this portion of the Constitu 
 tion was referred. 
 
 Mr. HATHAWAY. If the gentleman will 
 pardon me, I will make an inquiry. I wish to 
 know whether the Committee of which the gen 
 tleman was one, and who had this under con 
 sideration at the time, reported any action for this 
 Convention to take in reference to the seven 
 years residence. 
 
 Mr. MILLER. The Committee did not report 
 any action on that point, but they supposed as it 
 is stated in the present Constitution, that the 
 governor shall, at the time of his election, have 
 been an inhabitant of the Commonwealth for 
 seven years next preceding that this provision 
 would remain in the Constitution. That was re 
 garded as decided upon. In the new Constitu 
 tion, there is a requirement of a five years resi 
 dence in the Commonwealth to enable a person to 
 be qualified to be a senator ; and, it appears to me, 
 that if you require a residence of five years for a 
 senator, you should, at least, require five, if not 
 seven years residence in order to make a person 
 eligible for the higher office of governor. The term 
 " citizen of Massachusetts," I remember, was dis 
 cussed very much in the Convention at the time ; 
 but I know of no action, either in Convention or 
 in Committee, that has altered, or that was in 
 tended to alter, the present requisition of seven 
 years in order to make a person eligible to the 
 gubernatorial chair. 
 
 Mr. BOUTWELL. My own impression is that 
 the Committee have made an omission, although 
 I am not able at this moment to verify that state 
 ment. If the Convention will go on with the 
 amendments, the Committee will ascertain, and 
 have the matter placed right. 
 
682 
 
 REVISED CONSTITUTION. 
 
 [72d day. 
 
 Monday,] 
 
 DAVIS DANA HOOPER BOUTWELL. 
 
 August 1st. 
 
 Mr. DAYIS, of Worcester. I will remark, 
 that in document No. 8, the Convention will find 
 the Report of the Committee, and will perceive 
 what alterations the Committee recommended to 
 the Convention. It is precisely as the gentleman 
 from Wareham has stated ; they reported to the 
 Convention that no person except a citizen of the 
 United States should be eligible to the office of 
 governor ; but the Convention afterwards changed 
 it to "citizen of Massachusetts." 
 
 Mr. DANA, for Manchester. I have examined 
 the record, and I find that the resolves in docu 
 ment No. 8 were amended only in two particu 
 lars in the first resolve by striking out the words 
 "United States," and inserting "Massachusetts," 
 and by striking out of the last line the words : 
 " nor shall any person be eligible to that office 
 who shall not have attained to the age of thirty 
 years." There was no other amendment at all, 
 and it must have been an omission by the Com 
 mittee. 
 
 Mr. HOOPER, of Fall River. It was dis 
 tinctly stated in the discussion, by the gentleman 
 from Freetown, that the other qualification would 
 remain. 
 
 Mr. BOUTWELL. I have no doubt, upon 
 examination of the record, that the Committee 
 were in error. I therefore move to insert, at the 
 close of the article, the following : 
 
 And no person shall be eligible to this office 
 unless, at the time of his election, he shall have 
 been an inhabitant of this Commonwealth for 
 seven years next preceding. 
 
 The question being taken, the amendment was 
 agreed to. 
 
 The PRESIDENT stated that unless further 
 amendment was proposed to the fourth chapter, 
 the Secretary would read the fifth chapter. 
 
 The fifth chapter was accordingly read, as fol 
 lows : 
 
 ARTICLE 1. There shall be annually elected a 
 Lieutenant- Governor of the Commonwealth of 
 Massachusetts, who shall be qualified in the same 
 manner with the governor ; and the day and 
 manner of his election, the qualifications of the 
 voters, the return of the votes, and the declaration 
 of the election, shall be the same as in the election 
 of a governor. 
 
 [And the lieutenant-governor shall hold his 
 office for one year next following the first 
 Wednesday of January, and until another is 
 chosen and qualified in his stead.] 
 
 ART. 2. The governor, and in his absence, 
 the lieutenant-governor, shall be president of the 
 Council, but shall have no vote in Council ; and 
 the lieutenant-governor shall always be a member 
 of the Council, except when the chair of the gov 
 ernor shall be vacant. 
 
 ART. 3. Whenever, by reason of sickness or 
 
 absence from the Commonwealth, or otherwise, 
 the governor shall be unable to perform his offi 
 cial duties, the lieutenant-governor, for the time 
 being, shall have and exercise all the powers and 
 authorities, and perform all the duties of governor; 
 and whenever the chair of the governor shall be 
 vacant, by reason of his resignation, death, or 
 removal from office, the lieutenant-governor shall 
 be governor of the Commonwealth. 
 
 No amendment being proposed to the fifth 
 chapter, the Secretary read the sixth chapter, as 
 follows : 
 
 ARTICLE 1. There shall be a Council for ad 
 vising the governor in the executive part of the 
 government, to consist of eight persons besides 
 the lieutenant-governor, whom the governor for 
 the time being, shall have full power and author 
 ity, from time to time, at his discretion, to assem 
 ble and call together ; and the governor, with the 
 said councillors, or five of them at least, shall 
 and may, from time to time, hold and keep a 
 Council, for the ordering and directing the affairs 
 of the Commonwealth, according to the laws of 
 the land. 
 
 [ART. 2. Eight councillors shall be annually 
 chosen by the people ; and for that purpose the 
 State shall be divided by the General Court into 
 eight districts, each district to consist of five con 
 tiguous senatorial districts, and entitled to elect 
 one councillor, who shall hold his office for one 
 year next following the first Wednesday in Jan 
 uary, and until a successor is chosen and quali 
 fied in his stead.] 
 
 ART. 3. No person shall be elected a council 
 lor who has not been an inhabitant of this Com 
 monwealth for the term of five years immediately 
 preceding his election. 
 
 [ART. 4. The day and manner of the election 
 of councillors, the qualifications of the voters, the 
 return of the votes, and the declaration of the 
 elections, shall be the same as are required in the 
 election of senators ; and the person having the 
 highest number of votes shall be declared to be 
 elected. 
 
 ART. 5. No councillor, during the time for 
 which he is elected, shall be appointed on any 
 commission or to any place and receive compen 
 sation therefor.] 
 
 ART. 6. The councillors, in the civil arrange 
 ments of the Commonwealth, shall have rank 
 next after the lieutenant-governor. 
 
 ART. 7. The resolutions and advice of the 
 Council shall be recorded in a register, and signed 
 by the members present ; and any member of the 
 Council may insert his opinion contrary to the 
 resolution of the majority. This record shall 
 always be subject to public examination, and may 
 be called for by either House of the Legislature. 
 
 ART. 8. Whenever the office of the governor 
 and lieutenant-governor shall be vacant, by rea 
 son of death, absence, or otherwise, then the 
 Council, or the major part of them, shall, during 
 such vacancy, have full power and authority, to 
 do, and execute all and every such acts, matters 
 and things, as the governor or the lieutenant- gov- 
 
72d day.] 
 
 REVISED CONSTITUTION. 
 
 683 
 
 Monday,] 
 
 WILSOX HALE HALLETT OLIVER JENKS BIRD. 
 
 [August 1st. 
 
 ernor might or could, by virtue of this Constitu 
 tion, do or execute, if they, or either of them, 
 were personally present. 
 
 Mr. WILSON, of Natick. It seems to me that 
 there is an omission in the second article. It pro 
 vides that eight councillors shall be annually 
 chosen by the people, and for that purpose the 
 State shall be divided by the general court into 
 eight districts, each district to consist of five con 
 tiguous senatorial districts, and entitled to elect 
 one councillor, &c. It seems to me that there 
 should be a provision in addition, and I will move 
 to add, after the word " court," the following 
 words: "holden. next after the adoption of this 
 Constitution, and next after each decennial cen 
 sus thereafter," so that it will read : 
 
 ART. 2. Eight councillors shall be annually 
 chosen by the people ; and for that purpose the 
 State shall be divided by the General Court 
 holden next after the adoption of this Constitu 
 tion, and next after each decennial census there 
 after, into eight districts, each district to consist 
 of five contiguous senatorial districts, and entitled 
 to elect one councillor, who shall hold his office 
 for one year next following the first Wednesday 
 in January, and until a successor is chosen and 
 qualified in his stead. 
 
 13 y the adoption of this amendment it will be 
 in the power of the legislature to change the 
 councillor districts whenever they see fit. 
 
 The PRESIDENT. The amendment is not in 
 order. It is an amendment of substance and not 
 of form. 
 
 Mr. HALE, of Boston. I will ask if, in the 
 engrossed form, the orthography of this edition 
 will be followed ? If so, I move to amend it so 
 that the word " councillor," wherever it occurs, 
 shall be spelled as in the original Constitution. 
 It is here spelled with a c instead of an s. 
 
 Mr. HALLETT, for Wilbraham. As one of 
 the Committee, I will say that this was a subject 
 of very grave consideration before the Committee. 
 If the gentleman will consult the original orthog 
 raphy, I think he will find that the word is 
 spelled with a c. It appears to be the proper 
 word, too ; they are not counsellors at law or 
 barristers they are simply councillors, who sur 
 round the governor. 
 
 Mr. HALE. Undoubtedly it is in the power 
 of the Convention to coin a word ; but the word 
 counsellor, in the English language, is always 
 spelled with an "s." I therefore move that 
 "councillor" be stricken out, and "counsellor" 
 inserted in its stead. 
 
 Mr. OLIVER, of Lawrence. It strikes me 
 that it would not be correct to have it spelled in 
 that way. These gentlemen are members of the 
 
 Council, and they sit in council together. They 
 are not members of a counsel, and therefore they 
 are not counsellors. I think there is excellent 
 authority to sustain this mode of spelling the 
 word ; and if I am not greatly mistaken, it was 
 so spelled in the original draft of the Constitution 
 of this Commonwealth. That is the way that 
 the Privy Council of England is spelled, almost 
 universally. 
 
 Mr. JENKS, of Boston. I have always looked 
 upon this orthography of the word "councillor," 
 as a matter of affectation, and I do not think it is 
 worth while for us to continue to use this new 
 fangled word which has been manufactured within 
 a few years. I think "counsellor " is the proper 
 word, and in my opinion that is the way in which 
 it was originally spelled. I am in favor of the 
 amendment, for I think it is a mere matter of 
 affectation to spell it "councillor." 
 
 Mr. BIRD, of Walpole. This is not, perhaps, 
 a very vital matter, but I am of opinion, that as 
 long as we have taken it up, it may be as well to 
 have it settled correctly, and I believe that "coun 
 sellor " is the real way in which this word should 
 be spelled. If you say that it should be spelled 
 "councillor" as derived from " council," 1 will 
 admit, that a word may be coined, and of course, 
 when a new word is coined, there is no particular 
 rule by which it can be decided that one mode of 
 spelling is right and another is wrong. I hold, 
 that " counsellor " is derived from " counsel," 
 which means to give advice ; and as these men 
 are appointed for the purpose of giving advice to 
 the governor, they should be termed counsellors. 
 It is not a very important matter, and it may have 
 been rather an inadvertance of the printers or the 
 copyist, than an intentional mode of spelling the 
 word. 
 
 Mr. HALLETT, for Wilbraham. Not at all. 
 This subject was considered by the Committee, 
 and the question was decided by them ; so they 
 are responsible for the orthography. I will add 
 that in the original charter, it is spelled "councilor " 
 in some places, and in others it is spelled " coun 
 cillor." These men are not counsellors they are 
 not kings attorneys, but they are councillors as 
 distinctive from the legal profession. 
 
 The question being taken, the amendment was 
 not agreed to. 
 
 No further amendment being proposed to the 
 sixth chapter, the Secretary read the seventh 
 chapter, as follows : 
 
 [ARTICLE 1. The secretary, treasurer, auditor 
 and attorney-general, shall be chosen by the peo 
 ple, annually on the Tuesday next after the first 
 Monday in November ; and they shall hold their 
 offices, respectively, for one year next following 
 the first Wednesday in the succeeding January, 
 
684 
 
 REVISED CONSTITUTION. 
 
 [72d day. 
 
 Monday,] 
 
 DENTON HALLETT BUTLER. LORD. 
 
 [August 1st. 
 
 and until their successors are chosen and qualified 
 in their stead. 
 
 The day and manner of their election, the 
 qualifications of the voters, the return of the votes, 
 and the declaration of the elections, shall be the 
 same as are required in the election of governor.] 
 
 ART. 2. No man shall he eligible as treasurer, 
 more than five years successively. 
 
 ART. 3. The records of the Commonwealth 
 shall be kept in the office of the secretary, who 
 may appoint his deputies, for whose conduct he 
 shall be accountable; and he shall attend the 
 governor and Council, the Senate and House of 
 Representatives, in person, or by his deputies, as 
 they shall respectively require. 
 
 [ ART. 4. Judges of probate, registers of pro 
 bate, sheriffs, clerks of the courts, commissioners 
 of insolvency, district-attorneys, registers of deeds, 
 county treasurers, and county commissioners, 
 shall be elected triennially by the people of their 
 respective counties and districts, on the Tuesday 
 next after the first Monday in November, and 
 shall hold their offices, respectively, for three years 
 next following the first Wednesday in the suc 
 ceeding January, and until their respective suc 
 cessors are chosen and qualified in their stead. 
 
 The manner of their election, the qualifications 
 of the voters, the return of the votes, and the 
 declaration of the elections, shall be the same as 
 are required in the election of senators ; and the 
 person, having the highest number of votes shall 
 be elected.] 
 
 Mr. DENTON, of Chelsea, moved, that after 
 the words ".county commissioners," in the fourth 
 line of article fcmr, the words " except for the 
 county of Suffolk" be inserted. 
 
 Mr. HALLE FT. Upon an examination of 
 that subject, I have no question that there is no 
 change at all affected by this Constitution. The 
 city treasurer of Boston is chosen under the exist 
 ing law. This only requires that when there shall 
 be a county treasurer, he shall be chosen as pro 
 vided for in the Constitution. 
 
 Mr. DENTON. I speak of county commis 
 sioners. A portion of Suffolk County has been set 
 off from the county of Middlesex, and as I under 
 stand, the chairman of the Committee which 
 reported these resolves was unaware that there 
 had been a division. The mayor and aldermen 
 are county commissioners of the city of Boston, 
 which is a portion of the county of Suffolk. The 
 three remaining towns are attached to the county 
 of Middlesex. I understand that the chairman 
 of the Committee thinks there is a doubt, if action 
 is taken upon the resolution as presented to the 
 Convention, whether it would not put Chelsea 
 and North Chelsea precisely where they were 
 before, separate from the county of Middlesex. 
 
 The PRESIDENT. The Chair thinks the 
 
 amendment one of substance and not one of form. 
 
 Mr. BUTLER, of Lowell. Lest there should 
 
 be trouble so far as that matter is concerned, I 
 call the attention of the Convention to the lan 
 guage of the article. It says that " county 
 treasurers and county commissioners shall be 
 elected triennially by the people of their respective 
 counties and districts," &c. Now the legislature 
 have set off Chelsea and North Chelsea each to 
 Middlesex, and they, with the county of Middle 
 sex, make a district for the purpose of choosing 
 commissioners. So that I do not see the trouble 
 which is suggested by the gentleman from Chel 
 sea, that it can only be the people of a county 
 who elect a commissioner. The language is, 
 " chosen in their respective districts." 
 
 Mr. LORD, of Salem. I had the idea when 
 the matter was under consideration, that the 
 county of Suffolk was excepted ; arid, if in reality 
 the county of Suffolk was excepted, they ought 
 to be excepted in this provision. I do not know 
 that I am right, but I think that county commis 
 sioners, so far as Boston was concerned, were ex 
 cepted upon the motion of the gentleman who 
 represents Wilbraham, (Mr. Hallett). Now, it 
 seems to me that if they were, they ought to be 
 here, because I do not agree at all to the con 
 struction which is now given to this clause by the 
 gentleman for Wilbraham, that until the office of 
 county commissioner shall be created for the 
 county of Suffolk, it does not devolve upon the 
 people to choose one. I think if the duties of 
 that office are performed by another tribunal, that 
 tribunal must be elected precisely in the same 
 manner as is provided for the election of county 
 commissioners, otherwise it will be competent for 
 the legislature to alter the Constitution, simply by 
 changing the name of the officer, and putting 
 upon him the duties imposed upon the county 
 commissioners. Suppose that instead of there 
 being county commissioners, the legislature should 
 create a body of county selectmen, and place 
 upon them the precise duties which now belong 
 to county commissioners. Now, having imposed 
 the duties of county commissioners upon the 
 selectmen of the county, those duties being the 
 same as those of county commissioners, it seems 
 to me that the Constitution would require that 
 they shall be elected in the mode pointed out in 
 the Constitution for the election of county com 
 missioners, and that their appointment could not 
 be given to the governor, because, if otherwise, 
 every officer that you have made elective by the 
 people can be appointed by the governor, simply 
 by the legislature changing the name of the 
 officer, and imposing upon him the same duties as 
 the other officer. If the construction which I 
 give to it is the true one, then the mayor and 
 aldermen of the city of Boston must be elected 
 
72d day.] 
 
 REVISED CONSTITUTION. 
 
 685 
 
 Monday,] 
 
 BOUTWELL LORD CIIOATB. 
 
 [August 1st. 
 
 for the term of three years, unless an exception is 
 made in their favor, which was made in the Com 
 mittee of the Whole, when the subject was under 
 consideration. I think the exception was made 
 there, though I have no distinct recollection about 
 it. I wish to stand upon the action of the Con 
 vention, whatever it is. 
 
 Mr. BOUTWELL, for Berlin. I have a cer 
 tified copy of the proceedings of the Convention, 
 but the exception was not made. 
 
 Mr. LOUD. I knew the action of the Con 
 vention was reversed as to county treasurer, but 
 as to county commissioners I did not know. 
 
 Mr. BOUTWELL. As some gentlemen desire 
 that the title of this seventh chapter should be 
 made more explicit, I move to amend it, so that it 
 shall read : " Secretary, Treasurer, Attorney- 
 General, Auditor, District- Attorneys, and County 
 Officers." 
 
 The question was taken, and the motion was 
 agreed to. 
 
 The Secretary then proceeded to read the next 
 chapter, being chapter eight, entitled " Judiciary 
 Power," which is as follows : 
 
 [ARTICLE 1. The judicial power of the Com 
 monwealth shall be vested in a Supreme Judicial 
 Court, and such other courts as the legislature 
 may from time to time establish.] 
 
 ART. 2. The tenure that all commission officers 
 shall by law have in their offices, shall be ex 
 pressed in their respective commissions. 
 
 All judicial officers, duly appointed, commis 
 sioned and sworn, shall hold their offices for the 
 term of ten years, excepting such concerning 
 whom there is different provision made in this 
 Constitution. And upon the expiration of such 
 term they may be reappoinied; and all judicial 
 officers for whose appointment a different provision 
 is not made in this Constitution, shall be nominated 
 and appointed by the Governor, by and with the 
 advice and consent of the Council, and they may be 
 removed by the Governor, with consent of the 
 Council, upon the address of both Houses of the 
 Legislature. 
 
 [ART. 3. The present justices of the Supreme 
 Judicial Court shall hold their offices according to 
 their respective commissions ; and the present 
 justices of the Court of Common Pleas shall hold 
 their offices by the same tenure, while the law 
 establishing the said Court of Common Pleas 
 shall continue. All nominations of judicial offi 
 cers, whose term of office is by this Constitution 
 limited to ten yaars, shall be publicly announced 
 at least seven days before their appointment ; and 
 no person who shall have been commissioned after 
 the tenth day of August, in the year one thousand 
 eight hundred and fifty-three, shall hold by any 
 longer tenure of office than the term of ten 
 years. 
 
 ART. 4. Neither the Governor and Council, 
 nor the two branches of the Legislature, or either 
 of them, shall hereafter propose questions to 
 
 justices of the Supreme Judicial Court, and re 
 quire their opinions thereon.] 
 
 ART. 5. The judges of probate of wills, and 
 for granting letters of administration, shall hold 
 their courts at such place or places, on fixed days, 
 as the convenience of the people shall require ; 
 and the Legislature shall from time to time, here 
 after, appoint such times and places ; \intil which 
 appointments, the said courts shall be holden at 
 the times and places which the respective judges 
 shall direct. 
 
 [ART. 6. Justices of the peace, justices of the 
 peace and quorum, justices of the peace through 
 out the Commonwealth, and commissioners to 
 qualify civil officers, may be appointed by the 
 governor and Council for a term of seven years ; 
 and upon the expiration of any commission, the 
 same may be renewed ; and those now in office 
 shall continue therein according to the tenure of 
 their respective commissions : provided, that the 
 jurisdiction of the justices named in this article, 
 shall not extend to the hearing or trial of any 
 causes, or the issuing of warrants in criminal 
 cases. 
 
 ART. 7. Trial justices shall be elected by the 
 legal voters of the several towns and cities, where, 
 at the time of stich election there is no Police 
 Court established by law, who shall hold their 
 offices for a term of three years, and have the 
 same jurisdiction, powers, and duties, as are now 
 exercised by justices of the peace, or such as may 
 hereafter be established by law. Every city or 
 town, authori/ed as herein provided, shall e"!ect a 
 trial justice, and may elect one additional for each 
 two thousand inhabitants therein, according to 
 the next preceding decennial census : provided, 
 however, that any trial justice who shall remove 
 from the city or town in which he was elected 
 shall thereby vacate his office. 
 
 ART. 8. Justices and clerks of the Police 
 Courts of the several cities and towns of the 
 Commonwealth shall be elected by the legal 
 voters thereof, respectively, for a term of three 
 years.] 
 
 Mr. CIIOATE, of Boston. I beg to offer an 
 amendment, which I have drawn with some little 
 care, and extended, therefore, into several parts, 
 though constituting an entire amendment alto 
 gether, for the purpose merely of transferring the 
 change proposed to be made by the Convention 
 in the matter of judicial tenure of office, from the 
 body of the Constitution, where it must be voted 
 for along with everything else, for the purpose, I 
 say, of transferring that subject, into that part of 
 the amendments proposed to be submitted sepa 
 rately to the people, so that it may be separately 
 acted upon by the people, and by the individual 
 voter. 
 
 As I understood the learned chairman, (Mr. 
 Boutwell,) this morning, to suggest, that he 
 should himself favor the separate submission of 
 everything to the individual voter which, it can 
 be shown, may be practicably and properly done 
 
686 
 
 REVISED CONSTITUTION. 
 
 [72d day. 
 
 Monday,] 
 
 CHOATE. 
 
 [August 1st. 
 
 I anticipate his support. I have paid some 
 little attention to the details of this motion, and 
 I count upon his cooperation. I propose, then, 
 without sending the amendments to the Chair at 
 present, to strike out, as follows : In the first 
 place, strike out article thirty of the Bill of Rights, 
 \vhich is this : 
 
 ART. 30. It is essential to the preservation of 
 the rights of every individual, his life, liberty, 
 property, and character, that there be an impar 
 tial interpretation of the laws, and administra 
 tion of justice. It is the right of every citizen to 
 be tried by judges as free, impartial, and inde 
 pendent, 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 estab 
 lished bij the Constitution, and should have honor 
 able salaries, ivhich shall not be diminished during 
 their continuance in office. 
 
 Then strike out of article two, in this chapter 
 eight, the following : 
 
 All judicial officers, dulv appointed, commis 
 sioned and sworn, shall hold their offices for the 
 term of ten years, excepting such concerning whom 
 there is different provision made in this Consti 
 tution. And upon the expiration of such term 
 they may be reappointed. 
 
 Strike out all of article three, as follows : 
 
 ART. 3. The present justices of the Supreme 
 Judicial Court shall hold their offices according 
 to their respective commissions ; and the present 
 justices of the Court of Common Pleas shall hold 
 their offices by the Fame tenure, while the law 
 establishing the said Court of Common Pleas 
 shall continue. All nominations of judicial offi 
 cers, whose term of office is by this Constitution 
 limited to ten years, shall be publicly announced 
 at least seven days before their appointment : 
 and no person who shall have been commissioned 
 after the tenth day of August, in the year one 
 thousand eight hundred and fifty-three, shall 
 hold by any longer tenure of office than the term 
 of ten years. 
 
 The effect will be to remove from this portion 
 of the Constitution which the Committee have 
 numbered "one," everything which applies to a 
 change in the judicial tenure, and nothing else. 
 It will take that bodily from the position in which 
 it now stands. 
 
 I then respectfully propose that you shall in 
 sert, on page forty of this printed Report of the 
 Committee, under heads "nine," "ten," "eleven," 
 and " twelve," the following, constituting one 
 distinct provision and proposition, and those will 
 be exactly 7 what will have been removed, by the 
 first branch of my proposed amendment, from 
 
 number " one," that is to say, having struck out 
 what I have indicated, then insert, as the ninth, 
 tenth, eleventh, and twelfth paragraphs, what I 
 will have the honor to read. They are nothing, 
 but in their very terms, the provisions which the 
 proposition to strike out, will have struck out. 
 Supposing, then, that part of the amendment to 
 have been adopted, and that nothing remains in 
 number "one," upon the subject of the judicial 
 tenure, then the following propositions will cover 
 that ground exactly in the language of the Com 
 mittee, and embrace what the Convention has 
 done. 
 
 Ninth. All judicial officers, duly r appointed, 
 commissioned and sworn, shall hold their offices 
 for the term of ten years, excepting such concern 
 ing whom there is different provision made in 
 this Constitution. And upon the expiration of 
 any such term, they may be reappointed. 
 
 If this proposition be ratified and adopted, it 
 shall be in addition to the chapter on the judiciary 
 power. 
 
 Tenth. The present justices of the Supreme 
 Judicial Court shall hold their offices according 
 to their respective commissions ; and the present 
 justices of the Court of Common Pleas shall hold 
 their offices by the same tenure, while the law 
 establishing the said Court of Common Pleas 
 shall continue. All nominations of judicial offi 
 cers, whose term of office is by this Constitution 
 limited to ten years, shall be publicly announced 
 at least seven days before their appointment : and 
 no person who shall have been commissioned 
 after the tenth day of Aiigust, in the year one 
 thousand eight hundred and fifty-three, shall 
 hold by any longer tenure of office than the term 
 of ten years. 
 
 If this proposition be ratified and adopted, it 
 shall be in addition to the chapter 011 the judi 
 ciary power. 
 
 Eleventh. It is essential to the preservation of 
 the rights of every individual, his life, liberty, 
 property, and character, that there be an impar 
 tial interpretation of the laws, and administration 
 of justice. It is the right of every citi/en 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 shoul d hold their offices by tenures estab 
 lished by the Constitution, and should have honor 
 able salaries, which shall not be diminished during 
 their continuance in office. 
 
 If this proposition is ratified and adopted, it 
 shall be in addition to the Declaration of Rights. 
 
 Twelfth. That all tenure of judicial office 
 which shall not be changed by the Constitution, 
 shall remain as heretofore. 
 
 This last proposition is indispensable, to meet 
 
72(1 day.] 
 
 REVISED CONSTITUTION. 
 
 687 
 
 Monday,] 
 
 CHOATE HALLETT DANA. 
 
 [August 1st. 
 
 a difficulty suggested by my friend for Manches 
 ter, (Mr. Dana,) in consultation with him, for 
 it may happen that number " one " of the pro 
 posed amendments, may be adopted. If number 
 "one" should be rejected, and this particular 
 amendment should be rejected also, there might 
 be a Constitution left without any tenure of 
 office. 
 
 It is a part of this scheme of amendments, Mr. 
 President, that the provisions respecting the limi 
 tation of judicial tenure, as proposed to be 
 numbered progressively, nine, ten, eleven, and 
 twelve, are to be considered as distinct proposi 
 tions, to be adopted in the whole or rejected in 
 the whole, as the people think proper. Now, 
 having indicated what will unquestionably be the 
 judicial effect of this amendment, I do not intend 
 to detain the Convention with but a word in its 
 favor. It simply, fairly, and in good faith, with 
 out modifying in the least degree the substantial 
 action of this Convention, enables every voter in 
 Massachusetts to express his own opinion, 
 directly, upon so substantial, so distinct and im 
 portant a proposition as to change the judicial 
 tenure, uncoerced by its connection with any 
 other subject to the intent that every voter shall 
 exercise his own reason and free will upon a sub 
 ject distinct from every other branch of the entire 
 subject committed to him a proposition so 
 reasonable, that, unless it is attended with the 
 technical difficulty indicated this morning, by 
 the honorable chairman of the Committee, would 
 meet with universal approbation. It should be 
 borne in mind and it strikes me that it is a prin 
 ciple which should govern us that we had to 
 perform a distinct branch of duty. We were to 
 express, and procure to be adopted if we could 
 by this Convention, our own opinions concern 
 ing amendments to the Constitution. That duty 
 we have been engaged in arduously for ninety 
 days, and we have done it. We have conferred 
 upon it, we have voted upon it, we have accom 
 plished it, and we have completely and in good 
 faith, finished that branch of our duties, the ex 
 pression of our own opinions touching amend 
 ments to the Constitution. The other piece of 
 work submitted to us, and to which we have now 
 arrived, is exactly to enable the people to do their 
 part of the great concurrent work, in amending 
 the Constitution, in the best practicable manner, 
 on their part. And I apprehend that nobody can 
 feel any desire whatever, to give it such a direc 
 tion before the people, as shall lay them under 
 coercion to adopt our views whether they like 
 them or not. We should all feel, and should all 
 cooperate to bring the matter before them in such 
 a shape that they will express their own views 
 
 exactly, without coercion, from any of its con 
 nections. 
 
 I hope, therefore, that unless my friend for Man 
 chester, (Mr. Dana,) who has, I believe, been 
 engaged more particularly with the consideration 
 of the details of this part of the general subject, 
 and with the composition of the amendments 
 which are to be presented, should indicate some 
 greater difficulties than I yet imagine exist, this 
 particular amendment may be separately con 
 sidered. The present is not the time to say a 
 single word on the merits of the question, nor is 
 it necessary. In regard to that, the Convention 
 has already formed its opinion ; but, I would 
 suggest that this change in the nature of the 
 judicial tenure, is a matter wholly new to every 
 body in the Commonwealth that it is an inno 
 vation on our ancient usages that was not exten 
 sively canvassed before the Convention met that 
 it is a matter of vast importance to the whole 
 community and that it is easily separated from 
 the rest of the Constitution. 
 
 Mr. HALLETT, for Wilbraham. I rise for 
 the purpose of suggesting to the gentleman from 
 Boston, the inquiry whether the thirtieth article 
 of the Bill of Ilights may not be left standing as it 
 is ; because, as it is there, it is entirely in the 
 alternative, and is to be adapted either to the old 
 or the new Constitution. 
 
 Mr. CHOATE. Suppose, for instance, that 
 the whole of this resolve, which you call number 
 one embracing the great bulk of the Constitu 
 tion should be rejected by the people, then there 
 is no such article there. No such article remains, 
 and the old article in the old Constitution, com 
 missioning the judges for good behavior, and this 
 amendment would also remain, commissioning 
 them under a ten years tenure. 
 
 Mr. HALLETT. Then you might reject the 
 whole of the first, and part of the last. I say to 
 the gentleman from Boston, that I will go with 
 him upon this point, if it is possible to make this 
 provision a separate question, so that the remain 
 der of the Constitution remains entire. I am not 
 able to say whether the Constitution will bear 
 that separation ; but, as I have said before, if it 
 can be submitted to the people without marring 
 the symmetry of the instrument as a whole, 
 whether it is adopted cr rejected, I will go with 
 the gentleman for his proposition. 
 
 Mr. DANA, for Manchester. Having been 
 somewhat appealed to by the learned attorney- 
 general, I feel bound to speak to the subject mat 
 ter which he has brought before the Convention. 
 It is certainly true, that the amendment we have 
 adopted altering the tenure of the office of supreme 
 judges from a life tenure to a tenure of only ten 
 
638 
 
 REVISED CONSTITUTION. 
 
 [72d day. 
 
 Monday,] 
 
 DANA. 
 
 [August 1st. 
 
 years duration, is a material change in the Con 
 stitution. I trust that some of the members of 
 this body will remember that I was not in favor 
 of this change, and if it were to go as a sepa 
 rate proposition before the people, I should vote 
 against it. As one of the Committee of Revision, 
 I was in the hope that we should be able to put 
 all these propositions separately to the people. 
 But, after a more careful examination of the 
 matter, I came to the conclusion that we could 
 not put any of them as separate propositions, 
 except such as were entirely new and independ 
 ent. The gentleman for Wilbraham thought we 
 could ; but he afterwards changed his opinion. I 
 I gave early notice of this effect. During the 
 debate on the subject of the judiciary, I said to 
 the Convention that if these changes in the 
 judicial tenure were made, they would have to be 
 submitted to the people with all the rest of the 
 propositions, as a unit. I gave that as a reason 
 against adopting a change on which no public 
 opinion had been expressed. I have not been 
 able since then, to change my opinion. The 
 learned attorney- general has brought before us a 
 proposition that will do it, if anything Iranian 
 can. I have tried, myself, to invent or discover a 
 mode by which it could be done ; and doubtless 
 the learned attorney- general has gone far beyond 
 me in his plan ; but I confess that I do not see the 
 way clear yet. He proposes to divide all that re 
 lates to the judicial tenure embraced in the chap 
 ter on the judiciary, from the rest of the Consti 
 tution, and to present it as a separate resolution, 
 to be called number nine. This embraces four 
 distinct sections or articles. The first, relates to 
 the ten years tenure ; the second, to the tenure of 
 the present judges ; the third, is the thirtieth 
 article of the Bill of Ilights ; and the last, is a 
 new proposition, which I suppose the Chair will 
 be obliged to rule out of order, at this time. 
 
 Now, the principle upon which we have gone, 
 and which the chairman of the Committee has so 
 clearly illustrated, is this : that the Constitution 
 of 1780 has thirteen amendments, many of them 
 amendments upon amendments, rendering the 
 construction of the Constitution extremely diffi 
 cult. We wish to have a symmetrical instru 
 ment, so that every officer in the Commonwealth 
 may find everything he wants to find, under its 
 proper caption, without being obliged to hunt 
 over the Constitution of 1780, and all the amend 
 ments from that day to this, to find what he ought 
 to be able to find in a moment. We wish to 
 secure this result. For this purpose, the new 
 Constitution must go entire to the people. 
 
 It was truly said by the chairman of the Com 
 mittee, that number " one " must contain all that 
 
 is necessary for the working of the government. 
 Now, the learned attorney- general will admit that 
 the judicial tenure is one of the essential provis 
 ions of every Constitution. Yet he proposes to 
 strike out from proposition number one, all the 
 provisions relating to the judicial tenure, so that 
 if number one alone is accepted, and nine, ten, 
 eleven, and twelve are rejected, we shall have a 
 Constitution without any provision for a judicial 
 tenure. With a Constitution so defective, it 
 might be left to the legislature, to regulate the 
 judicial tenure ; but, would he be willing to leave 
 to the legislature the power to regulate the 
 tenure of the judges ? I think not. If we did 
 not do that, then we must go back to the Consti 
 tution of 1780 for our judicial tenure, reviving it, 
 by construction. Which of these courses would 
 be followed, I cannot guess ; but put it at the 
 best, and suppose the old Constitution to revive. 
 The result would be, that all the old Constitu 
 tion would be revived, for there is no power short 
 of the people which can say to what portion of 
 the Constitution of 1780 we shall go to find which 
 relates to the judicial tenure. The whole Con 
 stitution would therefore be printed and kept 
 alive. Now, I submit to the gentleman whether 
 it would be worth while to send out a Constitu 
 tion without a provision for a judicial tenure, and 
 then to say to the people, when they want to 
 know the tenure of the judges, "Look to the 
 Constitution of 1780, and if that is not the prop 
 er place to look for it, then leave the matter to the 
 legislature ? " I cannot think that this will be 
 done. If the people accept that part of the Con 
 stitution which we call number one, and reject 
 nine, ten, eleven, and twelve, then we have no 
 provision in regard to a judicial tenure. The 
 question then would be, whether that tenure 
 should be left to the legislature, or whether we 
 are to grope for it in the Constitution of 1780, 
 with its amendments. In that Constitution, the 
 judicial tenure is mentioned in two or three 
 places ; and the difficulty would be that that 
 Constitution would necessarily, so far, be in exist 
 ence, if that supposition be a correct one. If it 
 is not, then it would necessarily be left to the 
 legislature, and that objection, to my mind, would 
 be fatal. 
 
 But there are other objections. Suppose that 
 the Constitution of 1853 which for convenience 
 we call number one should be rejected, and the 
 twelve resolutions should be accepted ; w r hat kind 
 of a Constitution would you have ? It would 
 declare in the most solemn manner, the life ten 
 ure of the judges to be essential to their impar 
 tiality, and then, in the thirty-second article it 
 would present the contradictory provision that 
 
72d day.] 
 
 REVISED CONSTITUTION. 
 
 689 
 
 Monday,^ 
 
 DANA LORD BOUTVVELL. 
 
 August 1st. 
 
 they should only hold them for ten years. That 
 would be an inconsistency, from which I should 
 think the good taste of the gentleman would lead 
 him to shrink. 
 
 Moreover, if the first proposition is rejected, 
 and this proposition is accepted, then the ninth 
 proposition would be inconsistent with the Bill 
 of Rights ; the one saying that the office should 
 be held for life, and the other for ten years. The 
 tenth proposition would say that the present 
 judges should hold their offices according to their 
 commissions. That would be right, undoubtedly. 
 I think there is no objection to that. The 
 eleventh article would insert a provision which 
 would be inconsistent with the Bill of Rights, as 
 I have mentioned. If I could see my way clear, 
 in the amendment of the gentleman from Boston, 
 I would certainly go for it; but at present, I 
 must confess that everything in regard to it pre 
 sents nothing but darkness and difficulty to my 
 mind. And if we, who have studied the subject, 
 find it complicated and difficult of adjustment, 
 how will it strike the voters at the polls ? 
 
 Mr. LORD, of Salem. I believe that the diffi 
 culty of the delegate who represents Manchester, 
 arises from not considering that it is necessary to 
 do something to make an amendment to the third 
 and fourth resolutions, which will become neces 
 sary in consequence of the adoption of these articles 
 as put separately ; and if he will consider for one 
 moment, he will see that there is no difficulty 
 whatever in the proposition which the very dis 
 tinguished gentleman from Boston submits. In 
 the first place, he will perceive that when the 
 people vote, they will either accept both, reject 
 both, or accept one and reject the other, or reject 
 one and accept the other. There are, then, four 
 different ways in which the people can act upon 
 them. 
 
 Mr. DANA, (in his seat). The people may 
 accept part, and reject part. 
 
 Mr. LORD. No, Sir ; the four go together, as 
 one proposition, being all one system. If, there 
 fore, it can be made clear that whatever action 
 the people may take, it will leave a perfectly 
 sound Constitution throughout, with a sound 
 judiciary system, then the gentleman for Man 
 chester will find his whole end answered. I sub 
 mit, Sir, that it will be proper to add this provis 
 ion to the resolution : If number one is adopted 
 and ratified by the people, and nine, ten, eleven, 
 and twelve are rejected, then number twenty- 
 nine in the Bill of Rights of the present Constitu 
 tion shall be considered as number thirty in the 
 Bill of Rights of the new Constitution. With 
 tins suggestion, let us see how it will operate in 
 either alternative : If the people accept both 
 
 propositions, then the gentleman for Manchester 
 himself will be satisfied that it will be a perfect 
 system. If the people reject them both, there 
 will be no difficulty; because, having rejected 
 them both, the old Constitution will stand just as 
 it does now. We see, then, that if either both 
 are accepted or both rejected, there is no trouble. 
 Now, suppose they accept number one as the new 
 Constitution, and reject these four propositions, 
 nine, ten, eleven and twelve ; what will be the 
 state of things then ? You will have your judi 
 ciary power. You will have article one, which 
 says that " the judicial power of the Common 
 wealth shall be vested in a supreme judicial 
 court, and such other courts as the legislature 
 may from time to time establish." You will 
 have article two, which says that "the tenure 
 that all commission officers shall by law have in 
 their offices, shall be expressed in their respective 
 commissions." Then what else will you have? 
 You will have the old twenty- ninth article of the 
 Bill of Rights restored as the thirtieth article of 
 the Bill of Rights of this Constitution, declaring 
 a judicial tenure for life, or during good behavior. 
 You will therefore have a perfect Constitution, 
 harmonious and consistent, if the people accept 
 this, and reject the other. But suppose they re 
 ject number one, and accept the other, what will 
 you have in that case ? Then, of course, having 
 rejected the new Constitution, the old Constitu 
 tion stands as the Constitution of the Common 
 wealth; but, having accepted an amendment 
 which is, to some extent, inconsistent with that, 
 as every amendment is supposed to be, that 
 amendment stands just exactly as other amend 
 ments stand, which have changed the old Consti 
 tution in some particular lespects. To my mind 
 it is perfectly clear, that if you adopt this provis 
 ion and put into the resolve the words which I 
 have now suggested, the Constitution will be a 
 perfect system, no matter what action the people 
 may take with regard to the adoption or rejection 
 of these amendments. I submit to the discrim 
 inating mind of the gentleman who represents 
 Manchester, that there can be no difficulty what 
 ever. 
 
 Mr. BOUTWELL, for Berlin. This proposi 
 tion is so very complicated, that gentlemen for a 
 considerable time may disagree as to what its 
 effect is ; and what I have to say is rather in the 
 way of suggestion. If the proposition of the 
 gentleman from Boston shall be entertained by 
 the Convention, and his numbers nine, ten, 
 eleven and twelve, shall be submitted to the peo 
 ple, we also submit number one, which stands in 
 place of the old Constitution. If, then, numbers 
 nine, ten, eleven and twelve, are rejected, the 
 
690 
 
 REVISED CONSTITUTION. 
 
 [72d day. 
 
 Monday," 
 
 BOUTWELL SCHOULEB, "WHITNEY CHOATE. 
 
 [August 1st. 
 
 result is, that your thirtieth article of the Bill of 
 Rights is gone altogether. But suppose we sub 
 mit number one to the people, without the second 
 clause of article second, article third of the chap 
 ter on the judiciary power in the present Consti 
 tution passes away ; and if the proposition of the 
 gentleman from Boston is rejected, that passes 
 away, and then what will you have ? You 
 declare in the Constitution that the judicial power 
 of the Commonwealth shall be vested in a su 
 preme judicial court, and such other courts as the 
 legislature may from time to time establish ; but 
 you have no provision how your judges shall be 
 appointed, so far as I can see at this moment. 
 Are they to be elected by the people in that case ? 
 I presume that would be a question for the legis 
 lature to determine ; and thus, instead of settling 
 the mode of election by the people in the Consti 
 tution, you leave it for legislative action. And 
 you have stricken out the provision in the third 
 article of the proposed Constitution, which de 
 clares that the judges may be removed by the 
 governor, with the consent of the council, upon 
 the address of both branches of the legislature ; 
 so that according to this, whether the proposition 
 of the gentleman from Boston be adopted or 
 rejected by the people, as the former Constitution 
 will have passed away, you will have a Constitu 
 tion without any power whatever to remove a 
 judge by the address of both branches of the 
 legislature. I make these remarks by way of 
 suggestion, in order to show the complicated 
 nature of the proposition of the gentleman from 
 Boston. I cannot tell how I should regard it if 
 we had time to give it a deliberate examination ; 
 but it seems to me so complicated that it cannot 
 probably be fully comprehended by this Conven 
 tion to-day. 
 
 Mr. SCHOULER, of Boston. I would like 
 to ask the gentleman for Berlin a question. If 
 we strike out all with regard to the judiciary, 
 according to the proposition of the gentleman 
 from Boston, (Mr. Choate,) and if the people 
 should adopt the Constitution in this form, and 
 at the same time reject the propositions of my 
 distinguished colleague, I want to know whether 
 that part of the old Constitution which relates to 
 the judiciary, would not stand as a part of the 
 new Constitution ? 
 
 Mr. BOUTWELL. That would not stand 
 unless this Convention should make that excep 
 tion in proposition number one, because it is 
 expressly declared that proposition number one 
 shall take the place of the existing Constitution 
 of the Commonwealth. But if the idea that exists 
 in the mind of the gentleman from Boston, should 
 be the idea of this Convention, then what have 
 
 you ? You have now a Constitution without 
 proper provisions for the existence and working 
 of the judiciary power, and in order to remedy 
 that evil, what do you do ? You bring back into 
 life again the Constitution of 1780 and all its 
 amendments ; and what the judiciary power is, as 
 provided in that Constitution, no man can tell, 
 unless he has the whole instrument with all the 
 amendments and provisions before him. For my 
 part, I cannot see how this proposition can be 
 submitted in the manner proposed by my friend 
 from Boston, without working infinite evil in 
 some one of these ways which I have suggested, 
 if not in other ways which may be seen when it 
 shall be more fully examined. 
 
 Mr. WHITNEY, of Boylston. The system of 
 the gentleman from Boston may be_yery beautiful 
 I have no doubt it is but it is too complicated 
 for this time. We have no opportunity to exam 
 ine it and to understand it ; and I hope, there 
 fore, that his amendment will not be adopted. 
 
 Mr. CHOATE, of Boston. A single word, 
 Mr. President. This is to some extent an ex 
 pression of opinion against opinion ; and when I 
 shall have repeated the expression of my own, in 
 entire concurrence with that of my friend from 
 Salem, availing myself of his very clear and lucid 
 exposition of the matter, I shall have said all that 
 I have to say on the present occasion. As I 
 understand the chairman of the Committee and 
 my friend for Manchester, there is but one single 
 contingency in which any difficulty can be appre 
 hended. Let us see what that difficulty is, and 
 in one single word, what the answer to it is. 
 The difficulty which is expected, is, that resolu 
 tion number one may be adopted by the people, 
 and these amendments may be rejected; and 
 thereupon they suppose that the people will have 
 repealed and abrogated the old Constitution, and 
 will have made a new Constitution, in which 
 they will have made no provision at all for the 
 tenure of judicial offices. Let me repeat it, in 
 order that we may see whether the answer to this 
 difficulty is not entirely satisfactory. By the 
 adoption of resolution number one, the old Con 
 stitution will have ceased to be, because the 
 proposition numbered one becomes the Constitu 
 tion of the Commonwealth, and displaces the 
 other, of course. The amendments which I now 
 offer as numbers nine, ten and eleven, however, 
 being rejected, and the Convention having first 
 stricken from number one those three provisions 
 which prescribe the judicial tenure of ten years, 
 the difficulty which they fear is, that they shall 
 be left with judicial offices having no tenure 
 whatever prescribed. Now, I respectfully sub 
 mit, that there are three several answers to this 
 
72d day.] 
 
 REVISED CONSTITUTION. 
 
 691 
 
 Monday," 
 
 CHOATE BOUTWELL DANA. 
 
 [August 1st. 
 
 difficulty, to which I imagine that every legal 
 mind and sober understanding will entirely assent. 
 In the first place, we are to suppose that the peo 
 ple will do nothing at all capricious in regard to 
 what we are about to submit to them ; and there 
 fore I reason upon the supposition that article 
 number twelve will also be adopted and become 
 a part of the new Constitution. That article pro 
 vides that all tenures of judicial offices which are 
 not changed by the Constitution, shall remain as 
 heretofore. Very well ; then you have got a new 
 Constitution as contained in proposition number 
 one ; but you have made no change in the tenure 
 of judicial offices, because that part of number 
 one which undertook to make a change, has been 
 stricken out of number one and placed in the 
 appendix. You will have a new Constitution, 
 abolishing the old one, it is true ; but the new 
 Constitution makes no change in the tenure of 
 judicial offices, and therefore by the force of my 
 own amendment, all these tenures being un 
 changed, remain as heretofore. In order, then, 
 to know what is the existing tenure of judicial 
 offices, it will not be necessary to go back to trace 
 the history of the past two hundred years, for the 
 provisions of the present Constitution on that 
 subject are well understood, and no change will 
 take place. 
 
 Mr. BOUTWELL, for Berlin. It may be that 
 I do not understand the proposition of the gen 
 tleman ; but my point is this : If proposition 
 number one is accepted, it becomes the Constitu 
 tion of the State ; but if the propositions of the 
 gentleman from Boston are rejected, that one 
 which provides for a judicial tenure is rejected 
 with the rest. 
 
 Mr. CHOATE. In the first place, I do not 
 apprehend anything like capricious action upon 
 the part of the people of this Commonwealth. I 
 presume them to be, in the main, intelligent, and 
 I presume them to act thus. If they make a 
 new Constitution which establishes no change 
 whatever in the judicial tenure, and which in 
 tentionally omits to change the judicial tenure, 
 and if, at the same time, they reject the separate 
 proposition which does make that change, they 
 will of course desire that the tenure shall remain 
 as it is, and will adopt my amendment, num 
 bered twelve. 
 
 The second answer I submit on the sugges 
 tion which I adopt very cheerfully from my friend 
 from Salem, (Mr. Lord) ; and that is, that in a 
 certain contingency, which is contemplated by 
 the honorable chairman of the Committee, arti 
 cle number twenty-nine, in the present Bill of 
 Rights shall be revived and considered as article 
 thirty in the Bill of Rights of the new Constitu 
 
 tion. Then you will have not only your new 
 Constitution, as contained in proposition number 
 one, making in itself no change in the judicial 
 tenure, but you will also have the twenty- ninth 
 article of the old Bill of Rights, adopted by the 
 same popular act, and declaring that the judges 
 of the supreme judicial court shall hold their 
 offices during good behavior. Thus, in either mode, 
 unless you suppose the conduct of the people 
 w r ill be capricious, unsystematic, and unintelli 
 gent in the last degree, the difficulty suggested by 
 the gentleman will be obviated. 
 
 But there is a third reason upon which I may 
 very well stand, in point of fact. The effect of 
 such a state of things as the gentleman has hy 
 pothecated, will be exactly this that the exist 
 ing Constitution will not have been changed at 
 all in the matter of judicial tenures ; and when 
 you become satisfied of that fact, it follows, as a 
 principle of universal jurisprudence, thatthe old 
 Constitution, so far as it is unchanged by what 
 you do, remains entirely unaffected, and in full 
 force. I remember very well, that that principle 
 was advanced, and I listened to an argument of 
 great learning and power based upon it, in the 
 Convention in the State of New York. The 
 question was there raised, what would be the 
 state of things if the new Constitution should 
 not completely abrogate the old, but become part 
 and parcel of it. And I understood the doctrine 
 to have been the argument was conducted by 
 Mr. Wheaton that, as a matter of course, if, on 
 collating the new work with the old one, you 
 should find that you have not changed the old 
 Constitution or law whether it be Constitution, 
 statute, or treaty, or whatever it may be it re 
 mains entirely unaffected. So it does seem to 
 me that the contingency which the ingenuity of 
 gentlemen have discovered, can never happen, 
 and therefore is not a ground of rational objec 
 tion. 
 
 Mr. DANA, for Manchester. I wish to get at 
 a full understanding of this question, so that we 
 may know what we accept or reject. I ask the 
 gentleman whether I understand him as saying 
 that he intends to put the four propositions out 
 to the people as one, to stand or fall together ? 
 
 Mr. CHOATE. All together. 
 
 Mr. DANA. Then I do not understand the 
 remark as to the possible capriciousness of the 
 people in rejecting one part or the other. I un 
 derstood the gentleman to adopt the suggestion 
 of the gentleman from Salem, (Mr. Lord). We 
 put to the people this ninth proposition to say 
 " yes," or " no " to. If they say " yes," they are 
 accepted, if " no," they are rejected. Well, then, 
 we propose to say here, in Convention, by force 
 
692 
 
 REVISED CONSTITUTION. 
 
 [72d day. 
 
 Monday,] 
 
 LORD HALLETT. 
 
 [August 1st. 
 
 of resolves, that if the people reject that propo 
 sition, that rejection shall thereby transfer the 
 thirtieth article of the old Bill of Eights, into our 
 new Constitution. I ask the gentleman whether 
 he apprehends that we have any right, by force of 
 resolution merely, to transfer an article from the 
 Bill of Rights of 1780, to the Constitution of 1853 ? 
 You say to the people, will you accept or reject 
 proposition "ten?" They answer, no " Can 
 we say, then, by resolution here, that their nega 
 tive shall operate to transfer article thirtieth of 
 the Bill of Rights from the Constitution of 1780, 
 to the Constitution of 1853 ? I put it to those 
 gentlemen as a legal question, whether it can be 
 done ? 
 
 Mr. LORD, of Salem. I suppose it is not 
 quite unimportant in what sort of form this mat 
 ter goes out. In my judgment, the people are 
 quite as anxious to have it put into a proper 
 shape, as they are for us to go home ; and they 
 are anxious for the last, we all know. Now, 
 Sir, the suggestion which I make in reply to the 
 question put by the gentleman who represents 
 Manchester, is this: He asks if we have the 
 power to say, if the people reject propositions 
 nine, ten, eleven, and twelve, that the twenty- 
 ninth article of the Bill of Rights of the old Con 
 stitution shall be called, and shall form the thir 
 tieth article in the new Constitution ? Well, Sir, 
 I think the form is pretty unimportant ; what I 
 am after, is substance. Numbers nine, ten, eleven, 
 and twelve, are amendments to an article of the 
 Bill of Rights of the old Constitution. The 
 twenty- ninth article of the old Constitution 
 says, for certain reasons, which it recites, that 
 judges shall hold their offices during good be 
 havior. The amendment says, that for these 
 very same reasons, they shall hold their offices 
 according to the tenure of the Constitution. Now 
 we say, it is competent for us to submit to the 
 people the question " will you amend that article r" 
 If you adopt it, you amend that article, if you 
 do not, it stands ; and the mere fact that we 
 designate the article in which it shall stand, is an 
 unimportant matter. The whole question which 
 we submit to the people, being, will you amend 
 it ; if you do amend it, then it stands amended ; 
 if you do not amend it, then the article which 
 we propose to amend, shall still remain a part of 
 the Constitution, unamended, and unaltered. I 
 can see no difficulty in this matter. I think it 
 would be proper to say, that if number "one" is 
 adopted, then the present Constitution is abro 
 gated, but if it is not adopted, then the present 
 Constitution shall stand. I think that is proper, 
 and I think it is just as proper to say if the 
 twenty- ninth article of the Bill of Rights is 
 
 amended, it shall stand amended, but if the peo 
 ple reject it, then the twenty-ninth article shall 
 stand unamended, and unaltered. I see no diffi 
 culty whatever, and I hope gentlemen who are 
 anxious to have this question submitted to the 
 people as an independent one, will overlook the 
 nice technicalities in form, where there is no ob 
 jection to the substance. 
 
 Mr. HALLETT, for Wilbraham. As I am 
 desirous to satisfy every gentleman as to the mode 
 of submitting these provisions to the people, I ask 
 them to look at the different systems upon v\ hich 
 the old Constitution and the proposed Constitu 
 tion have been formed. Now, I said on a former 
 occasion, that it is easy for any gentleman to sit 
 down and take these amendments, and by clas 
 sifying them under as many chapters as there are 
 in the old Constitution, and putting in every 
 matter into the chapter to which it belongs, form 
 the chapters in place of the old ones. Now you 
 can do that, but in order to carry out that mode, 
 you must sacrifice a great deal of system. Just 
 look at the effect. In the old Constitution are 
 six chapters and thirteen amendments. There 
 are sections in each chapter, and those sections are 
 divided and subdivided into articles. If you fol 
 low the old system you will have a jumbled 
 up Constitution, one exceedingly difficult to be 
 cited, for every-body knows that in citing the 
 Constitution to the court, they are frequently in 
 volved in extreme difficulty to make themselves 
 understood by the court as to their citation. 
 Now here is an improvement. Every gentleman 
 who has ever looked to an analysis will see that 
 it is an improvement, by taking this new Consti 
 tution and making fourteen chapters of it, and 
 subdividing each chapter into articles, and em 
 bracing in each chapter the whole subject matter 
 of that chapter. It is a scientific classification, 
 according to all rules, to comprise subjects into 
 chapters and articles. If you desire to have that, 
 you must have the great body of the Constitution 
 presented together. Now I confess that when I 
 began to make these amendments, I was desirous 
 to put them in that form, chapter for chapter, and 
 yet, as I said before, it can be done only at the 
 expense of symmetry. At the same time, how 
 ever, I yield, though not without doubt of diffi 
 culty, to the suggestion of the attorney-general, 
 (Mr. Choate,) so far as to place the subject of the 
 judiciary before the people as a separate question, 
 because it is a distinct subject, though not en 
 tirely satisfied as to the manner in which it is 
 brought forward, or that the adoption of it in that 
 particular form will not involve us in difficulties. 
 
 These are the reasons why I shall vote for the 
 proposition of the gentleman from Boston, (Mr. 
 
72d day.] 
 
 REVISED CONSTITUTION. 
 
 693 
 
 Monday,] 
 
 BOUTWELL LORD. 
 
 [August 1st. 
 
 Choate,) while at the same time my convictions 
 are, that we should take as much of this Constitu 
 tion as a whole as we practically can. 
 
 The question was then taken upon the motion 
 of Mr. Choate, to strike out the different portions 
 of number " one " as hereinbefore stated, and to 
 insert them among the separate propositions to be 
 submitted to the people as distinct questions, and 
 it was decided in the negative ayes, 72 ; noes, 
 168. 
 
 So the motion was lost. 
 
 Mr. BOUTWELL, for Berlin. In consequence 
 of a change of the resolution by the Committee 
 immediately before the last edition of the Report 
 went to the press, an omission has been made 
 which leaves a matter in doubt which ought to be 
 rendered certain. I therefore move to insert after 
 the word " officers " in the following clause of the 
 second article of this chapter, " and all judicial 
 officers may be removed by the governor, with 
 consent of the council, upon the address of both 
 houses of the legislature," the words " for whose 
 appointments different provision is not made in 
 this Constitution, shall be appointed by the gov 
 ernor, by and with the advice and consent of the 
 council, and they ". 
 
 Mr. LORD, of Salem. I desire to ask the 
 chairman of the Committee whether he under 
 stands that these limited justices, those who have 
 power to do certain things, but not to try causes, 
 are judicial officers who are to be removed ? 
 
 Mr. BOUTWELL. I do. 
 
 Mr. LORD. Then I submit that this amend 
 ment of the Constitution which the Convention 
 has not voted upon, that the provision of the 
 Constitution in relation to the removal of officers 
 upon the address of the two houses, applies in its 
 terms only to those officers who are appointed 
 during good behavior, while another mode is pre 
 scribed by the Constitution for getting rid of 
 justices. Now this article makes justices remova 
 ble by the governor and council, when they were 
 not removable by the governor and council upon 
 the address to the two houses, under the former 
 Constitution. That is an amendment which is 
 not in the Constitution, and I submit that in 
 order to make this amendment conform to the 
 present action of the Convention, it is necessary to 
 insert after the words "judicial officers" the 
 words "except justices," so that it shall read, 
 "and all judicial officers except justices may be 
 removed by the governor, with consent of the 
 council, upon the address of both houses of the 
 legislature." The clause as it now stands, changes 
 the Constitution without the action of the Con 
 vention. 
 
 Mr. BOUTWELL. The point suggested by 
 
 the gentleman from Salem, was considered in 
 Committee, if I understand it ; and it arose from 
 this fact, that the first article of the third chapter 
 of the existing Constitution leaves the question as 
 to the power of the governor and council in some 
 doubt in this regard. That article reads thus : 
 
 " The tenure that all commission officers shall, 
 by law, have in their offices, shall be expressed in 
 their respective commissions. All judicial offi 
 cers, duly appointed, commissioned and sworn, 
 shall hold their offices during good behavior, ex 
 cepting such concerning whom there is different 
 provision made in this Constitution : provided, 
 nevertheless, the Governor, with consent of the 
 Council, may remove them upon the address of 
 both houses of the legislature." 
 
 The difficulty about this provision is, that it is 
 a matter of some doubt whether it includes justices 
 of the peace, or excludes them. If it includes 
 them, then they may be removed by the governor 
 as well as other judicial officers. The Committee 
 intended to declare that they might be removed, 
 because they thought such was the design of the 
 Convention. It is, however, for the Convention 
 to say whether justices of the peace shall be re 
 movable or not. 
 
 Mr. LORD, of Salem. The question before 
 the Convention now is : " Did the old Constitu 
 tion provide for the removal of justices of the 
 peace ? " In the old Constitution we find in the 
 paragraph which the gentleman for Berlin has 
 just quoted, that 
 
 " All judicial officers duly appointed, commis 
 sioned and sworn, shall hold their offices during 
 good behavior, excepting such concerning whom 
 there is different provision made in this Constitu 
 tion : provided, nevertheless, the Governor with 
 consent of the Council, may remove them upon 
 the address of both houses of the legislature." 
 
 Remove whom ? Those officers whose term of 
 office continued during good behavior. 
 
 Now here are justices of the peace who are not 
 otherwise provided for ; and then the section goes 
 011 to say that all commissions shall expire and 
 become void in seven years. I contend that, 
 taking these two articles together, it was not com 
 petent for the governor and council to remove 
 them upon the address of both houses of the leg 
 islature ; and the reason was, that their tenure 
 was limited. This matter was once before a com 
 mittee of the legislature with a case before them 
 in which they were all of opinion that there 
 should be a removal, but the legislature laid the 
 report upon the table, and took no action upon it. 
 
 Now it seems to me that, taking these provis 
 ions together, justices of the peace were not de 
 signed to be removed. I therefore move to amend 
 
694 
 
 REVISED CONSTITUTION. 
 
 [72d day. 
 
 Monday,] 
 
 WATERS HATHAWAY LORD HUBBARD. 
 
 [August 1st. 
 
 the article by inserting, after the words "judicial 
 officers," the words " except justices of the peace." 
 That clause will then read, " and all judicial 
 officers except justices of the peace, may be re 
 moved by the governor, with consent of the 
 council, upon the address of both houses of the 
 legislature." 
 
 Mr. WATERS, of Millbury. I hope that this 
 stumbling- block which has always been in the 
 old Constitution, will not be retained. There 
 have been three constructions given to this article 
 referred to by the gentleman from Salem, by men 
 of extreme legal ability ; and whenever you have 
 attempted to remove a justice of the peace, this 
 obscurity has been brought up and the respond 
 ent has escaped. When the Constitution of 1820 
 was adopted, Judge Story referred to the difficulty 
 in the third article, and with that provision it has 
 been impossible to remove justices of the peace 
 under the old Constitution. Cases of gross mal 
 feasance have been proved, and yet, in conse 
 quence of the obscurity of this article, it is im 
 possible to remove a justice of the peace. Why, 
 Sir, I would sooner undertake to draw a wood- 
 chuck from his burrow, ten feet under ground, 
 with a corkscrew, [laughter,] than attempt to re 
 move a justice of the peace under the existing 
 Constitution, no matter how corrupt he may be. 
 It cannot be done, Sir. 
 
 Now, it seems to me, that tne Coiiiiu.nec .-~,- 
 ing that matter under consideration, have re 
 moved that obscurity ; and I regard it as one of 
 the most important improvements made in this 
 Constitution. I therefore hope that the article 
 will be retained, as they have reported it. To 
 attempt to remove a justice of the peace involves 
 a great expense ; you cannot try a justice of the 
 peace short of two thousand dollars ; and I trust, 
 therefore, that this evil may be remedied, and I 
 think the article as it stands does furnish that 
 remedy. 
 
 Mr. HATHAWAY, of Freetown. I have my 
 doubts as to whether a justice of the peace is a 
 judicial officer. The court of a justice of the 
 peace never was a court of record. Now, what 
 are justices of the peace, under the Constitution, 
 as we propose to make them ? Their authority is 
 exceedingly limited. Instead of making them 
 officers capable of holding courts of record, we 
 make them merely ministerial officers. Trial 
 justices may, perhaps, be regarded as a different 
 class, holding courts of record ; but if justices of 
 the peace are forever prohibited from issuing 
 warrants, how can it be that those persons are 
 judiciary officers who cannot try any cases, civil 
 or criminal ? It seems to me unless there is a 
 great mistake somewhere that it is wholly un 
 
 necessary to make the exception of justices of the 
 peace. 
 
 Mr. LORD, of Salem. In order to save labor 
 and the time of the Convention, I would suggest 
 that instead of the words "justices of the peace," 
 the words "justices of police courts," should be 
 used. 
 
 Mr. HATHAWAY. There is no doubt about 
 their being judicial officers. 
 
 Mr. LORD. I offer this amendment because 
 the Convention has already determined another 
 mode for removing them, and there was no such 
 mode for removing them in the old Constitution, 
 any way. If the Convention inserts these words, 
 it will leave the old Constitution, in that respect, 
 as it is. 
 
 Mr. HUBBARD, of Boston. If I understand 
 the question, the gentleman for Berlin proposes 
 that justices of the peace may be removable by 
 the governor and council, on address, as in other 
 cases ? 
 
 Mr. LORD. In order to avoid farther dispute 
 and trouble in regard to this matter, I will with 
 draw the amendment. 
 
 The eighth chapter was then finally passed. 
 
 The Secretary then proceeded to read the 
 ninth chapter, relating to the qualifications of 
 voters, and elections designating the persons 
 entitled to vote ; the mode of voting ; ballots 
 
 u c r T- lod envelopes; the day of elections; 
 by wiiuiJL. iucctuigs to be cal ed ; the officers who 
 are to be elected by a majority of votes; pro 
 visions in case of no election by the people ; pro 
 visions in regard to the election of city and 
 town officers ; officers who may be elected by a 
 plurality vote ; and provisions in cases of failure 
 to elect. It is as follows : 
 
 ARTICLE 1. Every male citizen, twenty- one 
 years of age and upwards, (excepting paupers and 
 persons under guardianship,) who shall have re 
 sided within the Commonwealth one year, and 
 within the town or district, in which he may claim 
 a right to vote, six calendar months next pre 
 ceding any election of any national officer, or any 
 officer required by this Constitution to be elect 
 ed by the people, shall have a right to vote in such 
 election ; and no other person shall have such right. 
 
 [ART. 2. All ballots required by law to be 
 given at any national, state, county, district, or 
 city election, including elections for representa 
 tives and trial justices, justices and clerks of police 
 courts, shall be deposited in sealed envelopes of 
 uniform size and appearance, to be furnished by 
 the Commonwealth. 
 
 ART. 3. Lists of the names of qualified voters 
 shall be used at all elections required by this 
 Constitution. They shall be made out and used 
 in such manner as shall be by law provided. 
 The presiding officers at such elections shall re 
 ceive the votes of all persons whose names are 
 
72d day.] 
 
 REVISED CONSTITUTION. 
 
 695 
 
 Monday,] 
 
 PARKER BOUTWELL WATERS HALLETT. 
 
 [August 1st. 
 
 borne on such lists, and shall not be held answer 
 able for refusing the votes of any persons whose 
 names are not borne thereon. 
 
 ART. 4. All meetings for the choice of national, 
 state, county, or district officers, including rep 
 resentatives, trial justices, clerks and justices of 
 police courts, by the people, shall be held on the 
 Tuesday next after the first Monday in Novem 
 ber, annually ; and they shall be called by the 
 mayor and aldermen of the cities, and the select 
 men of the towns, and warned in due course of 
 law. The manner of calling and holding public 
 meetings in cities, for the election of officers under 
 this Constitution, and the manner of returning 
 the votes given at such meetings, shall be as now 
 prescribed, or as shall hereafter be prescribed by 
 the Legislature. 
 
 ART. 5. A majority of all the votes given 
 shall be necessary to the election of governor, 
 lieutenant-governor, secretary, treasurer, auditor, 
 and attorney- general, of the Common wealth, 
 until otherwise provided by law, but no such 
 law providing that such officers, or either of 
 them, or representatives to the General Court, 
 shall be elected by plurality, instead of a majority 
 of votes given, shall take effect until one year 
 after its passage ; and if at any time after any 
 such law shall have taken effect, it shall be re 
 pealed, such repeal shall not become a law until 
 one year after the passage of the repealing act ; and 
 in the absence of any such law, if at any election 
 of either of the above-named officers, except the 
 representatives to the General Court, no person 
 shall have a majority of the votes given, the 
 House of Representatives shall elect two out of 
 three persons then eligible, who had the highest 
 number of votes, if so many shall have been voted 
 for, and return the persons so elected to the Sen 
 ate, from whom the Senate shall choose one who 
 shall be the officer thus to be elected. 
 
 ART. 6. A majority of votes shall be required 
 in all elections of representatives to the General 
 Court, until otherwise provided by law. 
 
 ART. 7. In the election of all city or town 
 officers, such rule of election shall govern as the 
 Legislature may by law prescribe. 
 
 ART. 8. In all elections of councillors and 
 senators, and in all elections of county or district 
 officers, the person having the highest number of 
 votes shall be elected. 
 
 ART. 9. Wnenever, in any election where 
 the person having the highest number of votes 
 may be elected, there is a failure of election be 
 cause two persons have an equal number of votes, 
 subsequent trials may be had at such times as 
 may be prescribed by the Legislature.] 
 
 Mr. PARKER, of Cambridge. The Report 
 of the Committee appointed to revise and put the 
 amendments into form, was distributed this morn 
 ing, and it is very evident that sufficient time has 
 not been given for an examination of that Report, 
 so that we can compare it with the resolutions 
 which were committed to the Committee, and 
 with the present Constitution. I am, therefore, 
 of the opinion that the work of this Convention 
 
 cannot be finished to-night in a proper manner. 
 For the purpose of having an opportunity to 
 make that examination, I move that the Conven 
 tion do now adjourn. 
 
 The question being taken, on a division, there 
 were ayes, 51 ; noes, 133 so the Convention 
 refused to adjourn. 
 
 Mr. BOUTWELL, for Berlin. In order to 
 make it conform to the resolution referred to the 
 Committee, which includes state as well as na 
 tional officers, I move that the word " state" be 
 inserted after the word " any," so that it will 
 read : 
 
 Every male citizen, of twenty- one years of age 
 and upwards, (excepting paupers and persons 
 under guardianship,) who shall have resided 
 within the Commonwealth one year, and within 
 the town or district, in which he may claim a 
 right to vote, six calendar months next preceding 
 any election of any national officer, or any state 
 officer required by this Constitution to be elected 
 by the people, shall have a right to vote in such 
 election ; and no other person shall have such 
 right. 
 
 The question being taken upon the amend 
 ment, it was agreed to. 
 
 Mr. WATERS, of Millbury. It seems to me 
 that there is a little obscurity as to the manner of 
 electing trial justices. If they are county officers, 
 they are to be elected by a plurality vote, while if 
 they are town officers, they are to be elected by a 
 majority vote. I think this obscurity ought to be 
 remedied, as it may lead to a practical difficulty ; 
 and I would suggest to the chairman, whether it 
 should not be remedied now, by deciding whether 
 these officers should be elected by a plurality vote 
 or a majority vote. I move to add the words 
 "including trial justices" after the word "offi 
 cers," in the eighth article, so that it will read as 
 follows : 
 
 ART. 8. In all elections of councillors and 
 senators, and in all elections of county or district 
 officers, including trial justices, the person having 
 the highest number of votes shall be elected. 
 
 The PRESIDENT. That is an amendment of 
 substance, and not of form. 
 
 Mr. WATERS. I believe the Convention have 
 decided that trial justices are county officers. 
 
 The PRESIDENT. As it is an amendment 
 of substance, it is not, therefore, admissible. 
 
 Mr. HALLETT, for Wilbraham. I wish to 
 move a reconsideration of the vote which has just 
 been taken, by which the word "state" was 
 inserted between "any" and "officer." I un 
 derstand that the construction with regard to 
 national and state officers, out of which this pro 
 vision grew, was somewhat doubtful. If the 
 
698 
 
 REVISED CONSTITUTION. 
 
 [72d day. 
 
 Monday,^ 
 
 LOUD HALLETT HUBBARD BUTLER. 
 
 [August 1st. 
 
 word " state " is put in there, so that it will read 
 " the election of any national officer or any state 
 officer," you declare in your Constitution, that 
 when a man has no right to vote for national or 
 state officers, therefore he has no right to vote for 
 county and district officers. I cannot think that 
 the Convention intend to put any such construc 
 tion as that upon it. I move to reconsider that 
 vote, for the purpose of either striking out the 
 word " state" or adding " or other," which will 
 amount to the same thing. I do not know how 
 you can give a voter any more power than the 
 Constitution gives him. 
 
 Mr. LOUD, of Salem. I understand that that 
 amendment was made for the purpose of putting 
 the Constitution into the form in which we have 
 already voted that we want it ; and, it seems to 
 me, that if we now change that, it is a change of 
 substance, and not a change of form. 
 
 The PllESIDENT. The Chair admitted the 
 amendment, on the ground that it was to rees 
 tablish the original construction. 
 
 Mr HALLETT. Is the motion to reconsider, 
 out of order ? 
 
 The PllESIDENT. The amendment was ad 
 mitted in order that the article might stand in 
 accordance with the terms of the resolution which 
 the Convention acted upon. 
 
 Mr. HALLETT. That is the question. I say 
 it stands as the Convention passed upon the sub 
 ject, without the word state," and the intro 
 duction of that word changes the meaning. 
 
 The PRESIDENT. The Chair will entertain 
 the motion to reconsider. 
 
 Mr. HUBBARD, of Boston. I am very con 
 fident that the article, as placed in the Constitu 
 tion, conforms to the resolve which was passed 
 by the Convention. The amendment that was 
 made with regard to the qualification of voters, had 
 reference to article number nine of the Constitu 
 tion, which prescribes the qualifications of elec 
 tors of governor, lieutenant-governor, senators 
 and representatives, and an attempt was made to 
 extend it to all classes of elections, when the 
 ground was taken that the Constitution provided 
 for those classes of officers, but the legislature, by 
 statute, provided for the qualification of electors 
 at town meetings, and that it should be left to 
 them to act upon those elections hereafter. I am 
 certain that it corresponds to the resolve, as it 
 was adopted by the Convention. 
 
 Mr. BUTLER, of Lowell. I cannot have any 
 doubt in my own mind, that the introduction of 
 the word " state " there, is meant to designate 
 them as contradistinguished from national officers. 
 When I say state officers, I mean officers who 
 act under the authority of the State ; and when 
 
 I say national officers, I mean those officers who 
 act under the authority of the general govern 
 ment. The two terms are merely used in contra 
 distinction to each other. I think that the legis 
 lature, or the judges of the supreme court, when 
 ever they are called upon to construe it, would 
 consider it to apply to electors in all elections. I 
 am not in favor, therefore, of the motion to re 
 consider. I doubt the propriety of the construc 
 tion of the gentleman for Wilbraham. The 
 provision is, that any man " shall have a right to 
 vote in such election ; " that is all. What election 
 is that ? Of course it must be State elections ; 
 and what can you elect at State elections ? Ev 
 ery officer in the Commonwealth of Massachu 
 setts, in my judgment. I am content with it, Sir, 
 as it is. I am not very strongly in favor of hav 
 ing a tax qualification for voting for anything 
 under Heaven ; and I insist that no man shall 
 have such qualification, but what is put in in 
 conformity with the resolve as it was passed. I 
 have no doubt as to the construction of that res 
 olution, and I hope the motion to reconsider will 
 not prevail. 
 
 Mr. HALLETT. The assurances of gentle 
 men, that they have no doubt about the construc 
 tion, does not relieve my difficulty ; I wish to 
 place it beyond the possibility of doubt, and to 
 make it certain. The proposition which was 
 adopted by the Convention was, the proposition 
 that no tax qualification should be required to 
 qualify any person to vote for state or national 
 officers. It struck out, consequently, that pro 
 vision contained in the ninth article of the old 
 Constitution, which declared that every male 
 citizen, of twenty- one years of age and upwards, 
 excepting paupers and persons under guardian 
 ship who shall have resided within the Com 
 monwealth one year, &c., and who shall have 
 paid a tax, &c., in the town in which he shall 
 claim the right to vote, shall have a right to vote 
 for governor, lieutenant-governor, senators and 
 representatives. Now, you say that persons with 
 out paying taxes, if they have the residence, shall 
 have the right to vote for any national or any 
 state officer ; and, thereby, you say that they shall 
 not vote for town representatives, because town 
 representatives are not state officers ; and I. do 
 not wish to go before the supreme court of this 
 Commonwealth, upon the construction whether a 
 representative of a town is a state officer, or an 
 officer of the town. The only position upon 
 which you stand here, in maintaining town rep 
 resentation, is, that the representative is an officer 
 of the town, and not an officer of the state. If 
 he comes here, and helps to make laws which 
 govern the whole State, he is not an officer of the 
 
72d day.] 
 
 REVISED CONSTITUTION. 
 
 6S7 
 
 Monday,] 
 
 HALLETT MILLER. 
 
 [August 1st. 
 
 Commonwealth of Massachusetts, but he is an 
 officer acting for the town that elects him he is 
 a deputy of that town. With that construction, 
 no person has a right to vote for a town repre 
 sentative unless he pays a tax. For this reason, I 
 want the word "state" stricken out, and I 
 should like to have the word "other" inserted, 
 so that it will read " any national officer, or any 
 other officer required by this Constitution," &c. 
 
 The PRESIDENT. It is not competent to 
 strike out the word " state," inasmuch as that 
 word was in the original resolution ; the gentle 
 man may make any proposition to change the 
 form which does not change the substance. 
 
 Mr. HALLETT. If that cannot be done, I 
 should like to add the words " or other" between 
 " state " and " officer," so that it will read, " any 
 national officer, or any state or other officer," &c. 
 
 The PRESIDENT. That is an amendment of 
 substance. 
 
 Mr. HALLETT. I think not, Sir. Then I 
 ask general consent to put the proposition in this 
 form ; it certainly can do no injury, and it may 
 prevent much confusion hereafter. 
 
 The PRESIDENT. If no objection is made, 
 the gentleman can make the modification. 
 
 Mr. ASPINWALL, of Brookline. I object, 
 Mr. President. 
 
 Mr. MILLER, of Wareham. I wish to state 
 a difficulty which I have in my own mind. In the 
 ninth article you provide for subsequent trials 
 where there is a failure of election, becaiise two 
 persons have an equal number of votes ; but in 
 the choice of senators and councillors the return 
 is to be made seventeen days before the first Wed 
 nesday in January. Now, if it should so happen 
 that any two candidates for the office of senator 
 in any district voted for have an equal number of 
 votes there would be no chance that another elec 
 tion could be had before the meeting of the legis 
 lature, and certain districts might thereby be 
 deprived of their senators. I make n^ motion ; 
 but merely name this for the consideration of the 
 Convention. 
 
 No farther amendment being proposed, the 
 Secretary proceeded to read chapter ten, as fol 
 lows : 
 
 ARTICLE 1. The following oath shall be taken 
 and subscribed by every person chosen or ap 
 pointed to any office, civil or military, under the 
 government of the Commonwealth, before he 
 shall enter upon the duties of his office, to wit : 
 
 " I, A. B., do solemnly swear that I will bear 
 true faith and allegiance to the Commonwealth of 
 Massachusetts, and will support the Constitution 
 thereof ; and that I will faithfully and impartially 
 discharge and perform all the duties incumbent 
 on me as [here insert the office], according to the 
 478 
 
 best of my abilities and understanding, agreeably 
 to the Constitution and laws of the Common 
 wealth. So help me God." 
 
 [Provided, that when any person, chosen or 
 appointed as aforesaid, shall be conscientiously 
 scrupulous of taking and subscribing an oath, 
 and shall for that reason decline taking the above 
 oath, he shall make and subscribe his affirmation 
 in the foregoing form, omitting the word " swear," 
 and substituting the word " affirm ;" and omit 
 ting the words " So help me God," and subjoin 
 ing instead thereof the words " And this I do 
 under the pains and penalties of perjury."] 
 
 And the said oaths or affirmations shall be taken 
 and subscribed, by the governor and lieutenant- 
 governor before the president of the Senate, in 
 presence of the two Houses in convention ; and 
 by councillors before the president of the Senate 
 and in presence of the Senate ; and by the sena 
 tors and representatives before the governor and 
 council for the time being ; and by the residue 
 of the officers aforesaid before such persons, and 
 in such manner, as shall from time to time be pre 
 scribed by law. 
 
 ART. 2. No governor, lieutenant-governor, or 
 judge of the Supreme Judicial Court or Court of 
 Common Pleas, shall hold any other office under 
 the authority of this Commonwealth, except such 
 as by this Constitution they are admitted to hold, 
 saving that the judges of the said courts may 
 hold the offices of justices of the peace through 
 the State ; nor shall they hold any other office, or 
 receive any pension or salary from any other 
 State, or government, or power whatever, except 
 that they may be appointed to take depositions, or 
 acknoiclcdgments of deeds, or other legal instru 
 ments, by the authority of other States or count ri es 
 
 [No person shall hold or exercise at the same 
 time more than one of the following offices, to 
 wit : the office of governor, lieutenant-governor, 
 senator, representative, judge of the Supreme 
 Judicial Court, or Court of Common Pleas, sec 
 retary of the Commonwealth, attorney-general, 
 treasurer, auditor, councillor, judge of probate, 
 register of probate, register of deeds, sheriif or his 
 deputy, clerk of the Supreme Judicial Court, or 
 Court of Common Pleas, clerk of the Senate or 
 House of Representati ves ; and any per son holding 
 either of the above offices shall be deemed to have 
 vacated the same by accepting a seat in the con 
 gress of the United States, or any office under the 
 authority of the United States, the office of post 
 master excepted. And no person shall be capable 
 of holding at the same time more than two offices, 
 which are held by appointment of the governor, or 
 governor and Council, or the Senate, or the House 
 of Representatives, military offices, and the offices 
 of justices of the peace, justices of the peace and 
 quorum, notaries public, and commissioners to 
 qualify civil officers, excepted.] 
 
 ART. 3. And no person shall ever be admitted 
 to hold a seat in the legislature, or any office of 
 trust or importance under the government of this 
 Commonwealth, who shall, in the due course of 
 law, have been convicted of bribery or corruption, 
 in obtaining an election or appointment. 
 
 ART. 4. All commissions shall be in the name 
 
698 
 
 REVISED CONSTITUTION. 
 
 [72d day. 
 
 Monday,] 
 
 OLIVER BUTLER. 
 
 [August 1st. 
 
 of the Commonwealth of Massachusetts, signec 
 by the governor, and attested by the secretary or 
 his deputy, and have the great seal of the Com 
 monwealth affixed thereto. 
 
 AIIT. 5. All writs, issuing out of the clerk ? 
 office in any of the courts of law, shall be in the 
 name of the Commonwealth of Massachusetts ; 
 they shall be under the seal of the court from 
 whence they issue, and be signed by the clerk ol 
 such court. 
 
 ART. 6. All the laws, which have heretofore 
 been adopted, used, and approved in the Province, 
 Colony, State or Commonwealth of Massachusetts, 
 and usually practised on in the courts of law, 
 shall still remain and be in full force, until altered 
 or repealed by the legislature ; such parts only 
 excepted as are repugnant to the rights and liber 
 ties contained in this Constitution. 
 
 No amendment being offered to chapter ten, the 
 Secretary then read chapter eleven, as follows : 
 
 ARTICLE 1. The governor shall be the com- 
 mander-in- chief of the army and navy of the 
 Commonwealth, and of the Militia thereof, except 
 ing when these forces shall be actually in the ser 
 vice of the United States ; and shall have power to 
 call out any part of the military force to aid in the 
 execution of the laws, to suppress insurrection, and 
 to rqpel invasion. 
 
 [ART. 2. All citizens of this Commonwealth 
 liable to military service, except such as may by 
 law be exempted, shall be enrolled in the militia, 
 and held to perform such military duty as by law 
 may be reg uired. 
 
 ART. 3." The militia may be divided into con 
 venient divisions, brigades, regiments, squadrons, 
 battalions, and companies ; and officers with ap 
 propriate rank and titles may be elected to com 
 mand the sanae. And the discipline of the 
 militia shall be made to conform, as nearly as 
 practicable, to the discipline of the army of the 
 United States. 
 
 ART. 4. The governor shall appoint an adju 
 tant-general, a quartermaster-general, and such 
 other general staff- officers as shall be designated 
 by law ; who shall be commissioned by him for 
 the term of one year, and until their successors 
 shall be commissioned and qualified. And the 
 adjutant- general and quartermaster- general shall 
 have salaries fixed by law, which shall be in full 
 for all services rendered by them in their several 
 offices. 
 
 ART. 5. The major-generals shall be elected 
 by the votes of the brigadier-generals and field- 
 officers of the brigades, regiments, squadrons, 
 and battalions of the respective divisions. 
 
 ART. 6. The brigadier- generals shall be elect 
 ed by the votes of the field-officers of the regi 
 ments, squadrons, and battalions, and captains of 
 companies, of the respective brigades. 
 
 ART. 7. The field- officers of regiments, squad 
 rons, and battalions, shall be elected by the votes 
 of the captains and subalterns of companies of 
 the respective regiments, squadrons, and bat 
 talions. 
 
 ART. 8. The captains and subalterns shall be 
 
 elected by the members of the respective com 
 panies. 
 
 ART. 9. All elections of military officers shall 
 be by a majority of the written votes of those 
 present and voting, and no person, within the 
 description of a voter as hereinbefore specified, 
 shall be disqualified by reason of his being a 
 minor. 
 
 ART. 10. The Legislature shall prescribe the 
 time and manner of convening the electors here 
 inbefore named, of conducting the elections, and 
 of certifying to the governor the names of the 
 officers elected. 
 
 ART. 11. The several officers elected shall be 
 forthwith commissioned by the governor for the 
 term of three years from the dates of their respec 
 tive commissions, and until their successors shall 
 be commissioned and qualified. 
 
 ART. 12. If the electors of the several offi 
 cers before named shall refuse or neglect to make 
 an election, for the space of three months after 
 legal notice of a meeting for that purpose, the 
 governor shall appoint and commission for three 
 years a suitable person to fill the vacant office, 
 with the advice of the Council if the vacancy be 
 that of a major-general, or with the advice of the 
 major-general of the division in which the 
 appointment is to be made, if the vacancy be of 
 an inferior grade. 
 
 ART. 13. Major-generals, brigadier- generals, 
 and commandants of regiments, squadrons, and 
 battalions, shall severally appoint such staff- offi 
 cers as shall be designated by law in their respect 
 ive commands. 
 
 ART. 14. All non-commissioned officers, 
 whether of staff or company, and all musicians, 
 shall be appointed in such manner as may be pre 
 scribed by law. 
 
 ART. 15. All officers of the militia may be 
 removed from office by sentence of court-martial, 
 or by such other modes as may be prescribed by 
 law.] 
 
 Mr. OLIVER, of Lawrence. This chapter 
 being one of those things which are put into the 
 omnibus to sweeten it, according to the idea of 
 my friend from Salem, (Mr. Lord,) and as I am 
 very desirous to vote for it just as it is, I move 
 to take it out from number " one," and put it 
 among the propositions which are proposed to 
 be sent out to the people separately, as number 
 nine." 
 
 The PRESIDENT. It is not competent at 
 ;his stage to move to strike out the whole chap- 
 ;er. 
 
 Mr. BUTLER, of Lowell. As in my judg 
 ment, it is best that we never shall adjourn this 
 Convention but once, and then without day, and 
 11 order that we may finish our work without 
 eeling that we have not had supper, I move that 
 ve take a recess for one hour, until eight o clock. 
 
 The motion was agreed to, and the Conven- 
 ion accordingly took a recess until eight o clock. 
 
72d day.] 
 
 REVISED CONSTITUTION. 
 
 699 
 
 Monday, 
 
 CHAPTERS TWELVE AND THIRTEEN. 
 
 [August 1st. 
 
 EVENING SESSION. 
 
 The Convention reassembled at eight o clock. 
 
 No amendment being proposed to chapter 
 eleven, chapter twelve in regard to the Uni 
 versity of Cambridge, the school fund, and the 
 encouragement of literature was read, and 
 finally passed without amendment, as follows : 
 
 ARTICLE 1. Whereas our wise and pious ances 
 tors, so early as the year one thousand six hundred 
 and thirty-six, laid the foundation of Harvard Col 
 lege, in which university many persons of great 
 eminence have, by the blessing of GOD, been in 
 itiated into those arts and sciences which qualified 
 them for public employments, both in church and 
 state ; and whereas the encouragement of arts 
 and sciences, and all good literature, tends to the 
 honor of God, the advantage of the Christian 
 religion, and the great benefit of this, and the 
 other United States of America it is declared, 
 that the PRESIDENT AND FELLOWS OF HARVARD 
 COLLEGE, in their corporate capacity, and their 
 successors in that capacity, their officers and ser 
 vants, shall have, hold, use, exercise arid enjoy, 
 all the powers, authorities, rights, liberties, privi 
 leges, immunities and franchises, which they now 
 have, or are entitled to have, hold, use, exercise 
 and enjoy ; and the same are hereby ratified and 
 confirmed unto them, the said President and Fel 
 lows of Harvard College, and to their sxiccessors, 
 and to their officers and servants, respectively, for 
 ever. But the Legislature shall always have fall 
 power and authority, as may be judged needful for the 
 advancement of learning, to grant any farther powers 
 to the President 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 ; and shall have the 
 like poioer and authority over all corporate 
 franchises hereafter granted, for the purposes of 
 education, in this Commonwealth. 
 
 ART. 2. And whereas there have been, at 
 sundry times, by divers persons, gifts, grants, 
 devises of houses, lands, tenements, goods, chat 
 tels, legacies and conveyances, heretofore made, 
 either to Harvard College in Cambridge, in New 
 England, or to the President and Fellows of 
 Harvard College, or to the said College by some 
 other description, under several charters succes 
 sively ; it is declared, that all the said gifts, grants, 
 devises, legacies and conveyances, are hereby for 
 ever confirmed unto the President and Fellows of 
 Harvard College, and to their successors, in the 
 capacity aforesaid, according to the true intent 
 and meaning of the donor or donors, grantor or 
 grantors, devisor or devisors. 
 
 ART. 3. And whereas by an Act of the Gen 
 eral Court of the Colony of Massachusetts Bay, 
 passed in the year one thousand six hundred and 
 forty-two, the governor and deputy- governor, for 
 the time being, and all the magistrates of that 
 jurisdiction, were, with the president, and a num 
 ber of the clergy in the said Act described, con 
 stituted the overseers of Harvard College ; and it 
 being necessary, in this new constitution of gov 
 ernment, to ascertain who shall be deemed suc 
 
 cessors to the said governor, deputy-governor, 
 and magistrates ; it is declared that the governor, 
 lieutenant-governor, Council and Senate of this 
 Commonwealth are, and shall be deemed, their suc 
 cessors ; who, with the president of Harvard Col 
 lege, for the time being, together with the ministers 
 of the congregational churches in the towns of 
 Cambridge, Watertown, Charlestown, Boston, 
 Roxbury, and Dorchester, mentioned in the said 
 Act, shall be, and hereby are, vested with all the 
 powers and authority belonging, or in any way 
 appertaining, to the overseers of Harvard College : 
 provided, that nothing herein shall be construed 
 to prevent the Legislature of this Commonwealth 
 from making such alterations in the government 
 of the said University, as shall be conducive to its 
 advantage, and the interest of the republic of let 
 ters, in as full a manner as might have been done 
 by the Legislature of the late Province of the 
 Massachusetts Bay. 
 
 [AitT. 4. It shall be the duty of the Legisla 
 ture, as soon as may be, to provide for the -en 
 largement of the School Fund of the Common 
 wealth, until it shall amount to a sum not less 
 than two millions of dollars ; and the said fund 
 shall be preserved inviolate, and the income there 
 of shall be annually appropriated for the aid and 
 improvement of the common schools of the State, 
 and for no other purpose.] 
 
 ART. 5. Wisdom and knowledge, as well as 
 virtue, diffused generally among the body of the 
 people, being necessary for the preservation of 
 their rights and liberties ; and as these depend on 
 spreading the opportunities and advantages of 
 education in the various parts of the country, and 
 among the different orders of the people, it shall 
 be the duty of Legislatures and magistrates, in 
 all future periods of this Commomvealth, to cher 
 ish the interests of literature and the sciences, and 
 all seminaries of them ; especially the University 
 at Cambridge, public schools, and grammar schools 
 in the towns ; to encourage private societies, and 
 public institutions, rewards and immunities, for 
 the promotion of agriculture, arts, sciences, com 
 merce, trades, manufactures, and a natural history 
 of the country ; to countenance and inculcate the 
 principles of humanity and general benevolence, 
 public and private charity, industry and frugality, 
 honesty and punctuality in their dealings ; sin 
 cerity, good humor, and all social affections, and 
 generous sentiments among the people. 
 
 Chapter thirteen, containing miscellaneous pro 
 visions, was next read by the Secretary, as fol 
 lows : 
 
 ARTICLE 1. A census of the inhabitants of each 
 city and town in the Commonwealth, on the first 
 day of May in the year 185o, and on the first day of 
 May of each tenth year thereafter, shall be taken and 
 returned into the secretary s office, on or before 
 the last day of the June following the said first 
 day of May in each of said years ; and while the 
 public charges of government, or any part thereof, 
 shall be assessed on polls and estates, in the man 
 ner that has hitherto been practised, in order that 
 such assessments may be made with equality, 
 
00 
 
 REVISED CONSTITUTION. 
 
 [72d day. 
 
 Monday,] 
 
 BOUTWELL HlLLARD CHAPIN HATHAWAY MASON. 
 
 [August 1st. 
 
 there shall be a valuation of estates within the 
 Commonwealth taken anew once in every ten 
 years at least, and as much oftener as the General 
 Court shall order. 
 
 [ART. 2. Persons holding office by election or 
 appointment, when this Constitution takes effect, 
 shall continue to discharge the duties thereof un 
 til their term of office shall expire, or officers au 
 thorized to perform their duties, or any part 
 thereof, shall be elected and qualified, pursuant 
 to the provisions of this Constitution ; when all 
 powers not reserved to them by the provisions of 
 this Constitution shall cease : provided, however, 
 that justices of the peace, justices of the peace and 
 of the quorum, and commissioners of insolvency, 
 shall be authorized to finish and complete all pro 
 ceedings pending before them at the time, when 
 their powers and duties shall cease, or be altered 
 as aforesaid. All laws in force when this Consti 
 tution goes into effect, not inconsistent therewith, 
 shall continue in force until amended or repealed. 
 
 AIIT. 3. The Legislature shall provide, from 
 time to time, the mode in which commissions or 
 certificates of election shall be issued to all officers 
 elected pursuant to the Constitution, except in 
 cases where provision is made therein. 
 
 AIIT. 4. The governor, by and with the con 
 sent of the Council, may at any time, for incapa 
 city, misconduct cr maladministration in their 
 offices, remove from office, clerks of courts, com 
 missioners of insolvency, judges and registers of 
 probate, district- attorneys, registers of deeds, 
 county treasurers, county commissioners, sher 
 iffs, trial justices, and justices of police courts : 
 provided, that the cause of their removal be en 
 tered upon the records of the Council, and a 
 copy thereof be furnished to the party to be re 
 moved, and a reasonable opportunity be given 
 him for defence. And the governor may at any 
 time, if the public exigency demand it, either be 
 fore or after such entry and notice, suspend any 
 of said officers, and appoint substitutes, who shall 
 hold office until the final action upon the question 
 of removal. 
 
 AKT. o. Whenever a vacancy shall occur in 
 any elective office, provided for in this Constitu 
 tion, except that of governor, lieutenant-governor, 
 councillor, senator, member of the House of Rep 
 resentatives, and town and city officers, the gov 
 ernor for the time being, by and with the advice 
 and consent of the Council, may appoint some 
 suitable person to fill such vacancy, until the 
 next annual election, when the same shall be filled 
 by a new election, in the manner to be provided 
 by law : provided, hoioevcr, trial justices shall not 
 be deemed to be town officers for this purpose. 
 
 ART. 6. All elections provided to be had un 
 der this amended Constitution shall, unless other 
 wise provided, be first held on the Tuesday next 
 after the first Monday of November, one thou 
 sand eight hundred and fifty-four. 
 
 ART. 7. This Constitution shall go into ope 
 ration on the first Monday in February, in the 
 year one thousand eight hundred and fifty-four. 
 
 ART. 8. The terms of all elective officers, not 
 otherwise provided for in this Constitution, shall 
 commence on the first Wednesday in January 
 next after their election.] 
 
 ART. 9. In order to remove all doubt of the 
 meaning of the word " inhabitant," in this Con 
 stitution, every person shall be considered as an 
 inhabitant, for the purpose of electing and being 
 elected into any office or place within this State, 
 in that town, district, or plantation, where he 
 dwelleth, or hath his home. 
 
 ART. 10. This form of government shall be 
 enrolled on parchment, and deposited in the sec 
 retary s office, and be a part of the laws of the 
 land ; and printed copies thereof shall be prefixed 
 to the book containing the laws of this Common 
 wealth, in all future editions of the said laws. 
 
 Mr. BOUTWELL, for Berlin, moved to amend 
 the first article in the third line, by striking out 
 the figures 1855, and substituting therefor the 
 words " one thousand eight hundred and fifty- 
 five." 
 
 The amendment was agreed to. 
 
 Mr. HlLLARD, of Boston, moved a verbal 
 amendment to the fifth article in the last clause, 
 by inserting the word "that" after the word 
 " however," so as to make the clause read : 
 
 Provided, however, That trial justices shall not 
 be deemed to be town officers for this purpose. 
 
 The amendment was adopted. 
 
 Mr. BOUTWELL moved to strike out the 
 word "amended" in the second line of the sixth 
 article as being surplusage, the article as it stood 
 reading : 
 
 All elections provided to be had under this 
 amended Constitution, &c. 
 
 The motion to strike out the word "amended," 
 was agreed to. 
 
 Mr. CHAPIN, of Worcester, moved to amend 
 the fourth article in the seventh line by inserting 
 after the word "justices " the words " and clerks," 
 so as to make it read : 
 
 ART. 4. The Governor, by and with the con 
 sent of the Council, may at any time, for incapa 
 city, misconduct or maladministration in their 
 offices, remove from office, clerks of courts, com 
 missioners of insolvency, judges and registers of 
 probate, district-attorneys, registers of deeds, coun 
 ty treasurers, county commissioners, sheriffs, trial 
 justices and justices and clerks of police courts, &c. 
 
 Mr. HATHAWAY thought the amendment 
 unnecessary, as clerks of "police" courts were 
 certainly " clerks of courts." 
 
 Mr. CHAPIN regarded the term "clerks of 
 courts," as heretofore used, as applying to clerks 
 of higher courts, and not to police courts. 
 
 The amendment was agreed to. 
 
 Mr. MASON, of Fitchburg, moved to amend 
 the sixth article in the fourth line by inserting 
 
72d day.] 
 
 REVISED CONSTITUTION. 
 
 701 
 
 Monday,] 
 
 Moaxox. 
 
 [August 1st. 
 
 after the word " November" the words " in the 
 year," so as to make the article read : 
 
 ART. 6. All elections provided to be had 
 under this Constitution shall, unless otherwise 
 provided, be first held on the Tuesday next 
 after the first Monday of November, in the year 
 one thousand eight hundred and fifty-four. 
 
 The amendment was agreed to ; and 
 The thirteenth chapter was then finally passed. 
 The Secretary then proceeded to read the four 
 teenth and last chapter of the Revised Constitu 
 tion, providing for future revisions and amend 
 ments of the Constitution of Massachusetts, as 
 follows : 
 
 [ARTICLE 1. A Convention to revise or amend 
 this Constitution may be called and held in the 
 following manner : At the general election in the 
 year one thousand eight hundred and seventy- 
 three, and in each twentieth year thereafter, the 
 qualified voters in State elections shall give in 
 their votes upon the question, " Shall there be a 
 Convention to revise the Constitution r " which 
 votes shall be received, counted, recorded, and 
 declared, in the same manner as in the election of 
 Governor ; and a copy of the record thereof shall, 
 within one month, be returned to the office of 
 the Secretary of State, who shall, thereupon, ex 
 amine the same, and shall officially publish the 
 number of yeas and nays given upon said ques 
 tion, in each town and city, and if a majority of 
 said votes shall be in the affirmative, it shall be 
 deemed and taken to be the will of the people 
 that a Convention shall meet accordingly ; and, 
 thereafter, on the first Monday of March en 
 suing, meetings shall be held, and delegates shall 
 be chosen, in all the towns, cities, and districts, 
 in ihe Commonwealth, in the manner and num 
 ber then provided by law for the largest number 
 of representatives which the towns, cities, and 
 districts shall then be entitled to elect in any year 
 of that decennial period. And such delegates 
 shall meet in Convention at the State House, on 
 the first Wednesday of May next ensuing, and 
 when organized, shall have all the powers neces 
 sary to execute the purpose for which such Con 
 vention was called ; and may establish the com 
 pensation of its officers and members, and the 
 expense of its session, for which the Governor, 
 with the advice and consent of the Council, shall 
 draw his warrant on the treasury. And if such 
 alterations and amendments, as shall be proposed 
 by the Convention, shall be adopted by the peo 
 ple voting thereon in such manner as the Conven 
 tion shall direct, the Constitution shall be deemed 
 and taken to be altered or amended accordingly. 
 And it shall be the duty of the proper officers, 
 and persons in authority, to perform all acts ne 
 cessary to carry into effect the foregoing pro 
 visions. 
 
 ART. 2. Whenever towns or cities containing 
 not less than one-third of the qualified voters of 
 the Commonwealth, shall at any meeting for the 
 election of State officers, request that a Conven 
 
 tion be called to revise the Constitution, it shall 
 be the duty of the legislature, at its next session, 
 to pass an Act for the calling of the same, and to 
 submit the question to the qualified voters of the 
 Commonwealth, whether a Convention shall be 
 called accordingly : provided, that nothing herein 
 contained shall impair the power of the Legisla 
 ture to take action for calling a Convention, with 
 out such request, as heretofore practised in this 
 Commonwealth.] 
 
 ART. 3. If, at any time hereafter, any specific 
 and particular amendment or amendments to the 
 Constitution be proposed in the General Court, 
 and agreed to by a majority of the senators and 
 two-thirds of the members of the House of Rep 
 resentatives, present and voting thereon, such 
 proposed amendment or amendments shall be en 
 tered on the journals of the two Houses, with 
 the yeas and nays taken thereon, and referred to 
 the General Court then next to be chosen, and 
 shall be published ; and if, in the General Court 
 next chosen, as aforesaid, such proposed amend 
 ment or amendments shall be agreed to by a ma 
 jority of the senators and two- thirds of the 
 members of the House of Representatives, pres 
 ent and voting thereon ; then it shall be the duty 
 of the General Court to submit such proposed 
 amendment or amendments to the people ; and if 
 they shall be approved and ratified by a majority 
 of the qualified voters, voting thereon, at meet 
 ings legally warned and holden for that purpose, 
 they shall become part of the Constitution of this 
 Commonwealth. 
 
 [ART. 4. The Legislature which shall be chosen 
 at the general election on the Tuesday next after 
 the first Monday in November, in the year one 
 thousand eight hundred and fifty- five, shall 
 divide the State into forty single districts for the 
 choice of senators, such districts to be of con 
 tiguous 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 dou 
 ble 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 hundred and forty, nor more than 
 three hundred and twenty representatives ; with 
 proper provisions for districting the Common 
 wealth as aforesaid, in the year one thousand 
 eight hundred and sixty-six, and every tenth year 
 thereafter ; and with all other provisions neces 
 sary for carrying such system of districts into 
 operation ; and shall submit the same to the peo 
 ple at the general election to be held in the year 
 one thousand eight hundred and fifty- six, 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 Constitution for the apportion 
 ment of senators and representatives.] 
 
 Mr. MORTON, of Taunton. I should be glad, 
 Mr. President, even at this late hour of our 
 deliberations, to gain, if I could, the atten 
 tion of the Convention for a few moments. I 
 certainly shall occupy but very little time, because 
 there are reasons which will necessarily limit me. 
 
702 
 
 REVISED CONSTITUTION. 
 
 [72d day. 
 
 Monday,] 
 
 MOIITON. 
 
 [August 1st. 
 
 Thus far, I have avoided intruding myself 
 upon the Convention in regard to this important 
 and most objectionable measure, except in offer 
 ing a merely verbal amendment. I had the 
 honor, Mr. President, to be a member of the 
 Committee appointed to revise and prepare the 
 amendments of the Constitution to be submitted 
 to the people of the Commonwealth. It gives 
 me great pleasure though I take little credit 
 to myself to say that I think that that Commit 
 tee deserves great credit for their ingenuity and 
 industry in arranging these amendments. The 
 Committee in their plan of submitting them to 
 the people, have thought proper to form them 
 into groups some of them in very large masses, 
 and others in small portions, or rather to form 
 one group comprehending all the most important 
 amendments, and nine-tenths of the whole, and 
 to submit each of the minor ones separately. 
 Some days ago I prepared a resolution, the object 
 of which was to give this Committee instructions 
 on this subject ; but the pressure of other mat 
 ters prevented me from offering it to the Conven 
 tion, and the Committee assumed the authority 
 to arrange the proposed amendments without 
 any action of the Convention ; and under these 
 circumstances, I beg leave to offer a very few 
 suggestions in relation to the scheme of the 
 Committee, and to the manner in which I 
 think these amendments should be presented to 
 the people. 
 
 Sir, I think that it is our duty as a Convention, 
 in executing the trust which has been confided to 
 us, to prepare these amendments in such man 
 ner as to give the people the best possible oppor 
 tunity of acting upon them freely and under - 
 standingly, and without any embarrassment or 
 constraint. This can only be done by allowing 
 them to vote separately upon many different 
 points. I had supposed, until recently, that we 
 were all agreed that the several distinct proposi 
 tions should be submitted to the people singly ; 
 and it did not enter my mind that the mass of 
 them were to be put together and acted upon by 
 the people jointly, so as to deprive them of the 
 opportunity of approving of some propositions 
 and disapproving of others. The Committee, 
 however, have seen fit to decide otherwise, and 
 have formed the major part of these amendments 
 into one large group, in regard to which I will 
 say a few words. At this time it is not possible 
 to enter into a full argument of a question involv 
 ing so many important considerations ; I think 
 that it would have been more wise and safe to 
 have followed the example which was set us more 
 than thirty years ago, and to have submitted these 
 several propositions to the people, who could have 
 
 acted upon them separately, without restraint on 
 the one hand or temptation on the other. It ap 
 pears to me that we have adopted a course which 
 trenches upon the rights of the people, in putting 
 these propositions altogther, for by adopting this 
 mode, we prevent the people from acting dis 
 tinctly on each amendment. You say to them 
 imperatively and authoritatively : " Take this 
 whole group, and either reject the whole or ac 
 cept the whole. We, in our wisdom, have devised 
 a perfect scheme. We will not endanger its har 
 mony by permitting you to reject any of its parts. 
 We have one object in forming the whole scheme, 
 which you are bound to believe is for your good. 
 It must be adopted as we have devised it. You 
 must not be allowed to mar the symmetry of the 
 plan, or defeat its object by altering or rejecting 
 any of its members." 
 
 Sir, it is altogether likely that many of the 
 people, like myself, will find in this scheme some 
 propositions which they would wish to adopt, 
 and others which they would wish to reject. 
 But no such liberty is here permitted to them ; 
 and I ask if this is not transcending our delegat 
 ed authority, and exercising arbitrary and dicta 
 torial power ? What right have we to bind up the 
 whole people in this way ? Do we not forget 
 that the people must make the Constitution, and 
 that we are only instruments to prepare and lay 
 before them such propositions as they may wish 
 to express their pleasure upon ? Do we not per 
 vert the purpose of our appointment, when we 
 undertake to devise plans to arrest from the peo 
 ple their inherent right to judge of the proposals 
 which their agents have formed, by their direc 
 tions r Do we not assume to act as masters, 
 when we are only servants ? It may be that some 
 of the propositions are so connected and depend 
 ent on each other, that you cannot separate them. 
 For instance, the amendments in relation to the 
 Council and the Senate, are dependent, and there 
 fore indivisible. You cannot separate them, 
 because the Council Districts are based upon the 
 Senatorial Districts, and should the senatorial 
 basis be rejected, the provision for the Council 
 would be impracticable. I think, therefore, the 
 union of these two provisions unobjectionable. 
 But, the amendment in regard to the House of 
 llepresentatives, the most important and the most 
 obnoxious one in the whole list, stands on entirely 
 different ground. And no substantial reason can 
 be assigned for connecting all sorts of proposi 
 tions, except those of doubtful popTilarity. 
 
 I am aware of the ingenious reasons which the 
 members of the Committee have offered in regard 
 to this point. Gentlemen so correct, and perhaps 
 I might say, so fastidious in their tastes, so ambi- 
 
72d day.] 
 
 REVISED CONSTITUTION. 
 
 703 
 
 Monday,] 
 
 MORTON EAMES. 
 
 [August 1st. 
 
 tious of elegance of composition, and so proud of 
 harmony of diction, might well say they thmight 
 that, by grouping these qxiestions together they 
 could put them in more symmetrical form, and 
 make them look more elegant on paper. But let 
 me ask, gentlemen, which is of the most impor 
 tance the beauty of the phraseology, or the value 
 of the principle ? I will not discuss this matter 
 farther ; but I had supposed that we should have 
 had the fullest and fairest scope of testing, at the 
 polls, the estimation in which the people hold all 
 these amendments; and that they might have 
 said, separately, whether they were for senatorial 
 districts, or against them ; for the election of offi 
 cers by the people, or their appointment by the 
 legislature or executive ; for the election of rep 
 resentatives by towns, or by equal districts ; for 
 the abolition of a poll tax, or against it ; for the 
 adoption of the secret ballot, or against it ; and 
 so on through the whole category, without hav 
 ing other matters connected with these questions. 
 By presenting these questions altogether, you 
 coerce the people on the one hand, or offer a 
 bribe to them on the other. You say to them, 
 in effect : " If you will take this bitter thing, you 
 shall have also this sweet thing ; " or it may 
 operate upon them in the way of constraint, in 
 asmuch as you say : " If you do not accept this 
 which you dislike, you shall not have that which 
 you do like." This, I contend, is an infringe 
 ment of the rights of the people. It is equivalent 
 to saying to a religious man : " You shall have a 
 church, if you will take an assignation house 
 along side of it, but you shall not have the one 
 without the other ; " or to an educational man : 
 " You may have a school, provided you are con 
 tent to have a gambling house next door to it." 
 Now, Sir, if the people view this matter as I do, 
 they will say, indignantly, No ! let the church 
 go ; let the school go ; if we cannot have what is 
 righteous and just, without taking what is un 
 righteous and unjust, we spurn them both. We 
 will not be compelled to take things which are so 
 offensive to us, in order that we may obtain other 
 things which we desire. 
 
 But I will hasten on with these suggestions, 
 and come to some points which are more practi 
 cal, and which will, perhaps, stand a little better 
 chance of gaining attention. 
 
 I fear, Sir, that we have somewhat forgotten 
 the mission upon which we were sent to this 
 house; that we have been acting together Jn the 
 exercise of unrestrained power, till we have for 
 gotten the source of our authority, and have not 
 sufficiently borne in mind the wishes and rights 
 of those who stand behind us, to act upon the 
 propositions which we may submit to them. 
 
 ear that, while we profess democracy, and a love 
 br the people, we have acted on an opposite prin 
 ciple. Distrust of the people is stamped on al 
 most every act. Look at what was said in regard 
 to the State credit. It was avowed, by some of 
 the majority I do not remember whom that 
 the people could not be trusted with power in 
 regard to this matter. And what was the result ? 
 They were divested of the power to decide where 
 the credit of the State might be loaned or given 
 away. What ! Not trust the people with the 
 management of their own money, and their own, 
 credit ! And, Sir, it has been just so in regard 
 to every other act. No principle, however sound 
 and just, is fully carried out. So it was in regard 
 to the secret ballot. We all wanted it in some 
 elections, but a majority were not willing to 
 apply it to all, and the people were not allowed 
 to determine for themselves whether they would 
 have it extended to any, or in what cases they 
 would adopt it. Just so, likewise, was it in 
 regard to the plurality question. You would not 
 let the people decide the question, for or against 
 it, as they might choose. And in regard to the 
 subject of representation, the most important 
 subject which was submitted to us, we have not 
 only disregarded the well known wishes of the 
 people for a reduction of the House, but refused 
 to allow them to decide between the town and 
 district system. 
 
 Sir, from the beginning, while we have con 
 tinually heard professions of love for the people, 
 and a desire to be governed by their wishes, our 
 acts have shown a want of confidence in them, 
 and a disregard of their wishes and interests. 
 This has made itself manifest, not only in our 
 acts and votes, but has occasionally peeped out of 
 our speeches. Those from whom we have heard 
 most of the sodality of mankind and the brother 
 hood of the whole human family, have now and 
 then given us an inkling of their feelings by com 
 paring large classes of our inhabitants "to the 
 cattle in the farmer s field, and the birds that fly 
 over them ; " nay, to that cunning, thievish, car 
 rion bird, the "crow." I would not quote the 
 hasty expressions of an individual, especially a 
 frank, sincere, and high-minded one, did they 
 not, in my mind, indicate the feelings and senti 
 ments of a class who, from their ability, their 
 eloquence, and their other distinguished qualities, 
 seem to have a controlling influence over the de 
 liberations of this Convention. 
 
 Mr. EAMES, of Washington. I rise to a point 
 of order. If the gentleman is going to move an 
 amendment, I would like to have it read, that I 
 may be looking it over. 
 
 Mr. MORTON. If the gentleman from Wash- 
 
704 
 
 REVISED CONSTITUTION. 
 
 [72d day. 
 
 Monday,] 
 
 MORTON EAMES. 
 
 [August 1st. 
 
 ington will try to repress his wishes for a few 
 moments, he shall be gratified with the proposi 
 tion ; or, if he cannot restrain his curiosity, I will 
 gratify him now. 
 
 Mr. EAMES. The fifteen minutes allowed 
 the gentleman from Taunton will expire directly, 
 and I would like to know what the amendment 
 is, before the time expires. 
 
 Mr. MORTON. The gentleman will soon be 
 gratified. 
 
 I wanted, Sir, to say a word in relation to the 
 ground which several of the Committee have 
 taken upon this subject. They have told us that 
 their main desire, in putting the amendments to 
 gether in this shape, was to preserve the symme 
 try and harmony of the instrument, and the 
 beauty and orderly arrangement of the pamphlet 
 to be published. I am afraid that gentlemen deceive 
 themselves as to the real cause which has induced 
 them to adopt this course. I am bound to be 
 lieve the gentlemen are sincere in their profes 
 sions, and honestly believe that they are governed 
 by the causes which they assign. Eut if they 
 will look at the matter a little more disinterest 
 edly, they will perceive how very difficult it will 
 be to make outsiders believe it, and to prevent 
 them from judging that, in order to carry some 
 favorite but objectionable scheme, all the popular 
 measures have been connected with it, to induce 
 the people to vote for it, and thus to give it the 
 force of a popular adoption, when it may be that 
 a majority of them are opposed to it. They may 
 possibly adopt the language of one of the Com 
 mittee, on another occasion, and say : " The lion s 
 skin is not big enough not half big enough, to 
 conceal that other animal, which I will not name. 
 His ears are in full view." 
 
 Now, Sir, for my amendment. I move that 
 the fourth article of the chapter now under con 
 sideration, be transferred to the amendments 
 which are to be passed upon separately ; that it 
 stand and go out to the people as a separate prop 
 osition. 
 
 The fourth article is as follows : 
 
 ART. 4. The legislature which shall be chosen 
 at the general election on the Tuesday next afier 
 the first Monday in November, in the year one 
 thousand eight hundred and fifty-five, shall divide 
 the State into forty single districts for the choice 
 of Senators, such districts to be of contiguous ter 
 ritory, and as nearly equal as may be in the num 
 ber of qualified voters resident in each : and shall 
 also divide the State in single or double districts, 
 to be of contiguous territory, and as nearly equal 
 as may be in the number of qualified voters resi 
 dent in each, for the choice of not less than two 
 hundred and forty, nor more than three hundred 
 and twenty representatives ; with proper provis 
 
 ions for districting the Commonwealth as aforesaid, 
 in the year one thousand eight hundred and sixty- 
 six, and every tenth year thereafter ; and with all 
 other provisions necessary for carrying such sys 
 tem of districts into operation ; and shall submit 
 the same to the people at the general election to 
 be held in the year one thousand eight hundred 
 and fifty- six, 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 Constitution 
 for the apportionment of Senators and Representa 
 tives. 
 
 I suppose that gentlemen understand what I 
 mean. But I was about to say that I do not 
 question the motives of the Committee, but this 
 motion, it seems to me, will test their sincerity. 
 Unless other reasons than those assigned influence 
 their minds, they cannot hesitate to vote for this 
 motion, for it comes perfectly within all the 
 reasons given and all the rules laid down for the 
 classification which they have made. In the first 
 place, this is entirely new matter a new proposi 
 tion standing entirely by itself, having no prece 
 dents in the old Constitution. 
 
 In the next place, it is entirely unconnected ia 
 any way with any other part of the old Constitu 
 tion, or the amendments ; and if you were to 
 strike it all out, every other portion would be 
 perfect without it, just as it is if adopted ; it in 
 no way interferes with the rest of the instrument 
 either with or without amendments. It does not 
 in any degree stand in the way of the adoption or 
 rejection of any or all the other amendments. If 
 the whole are adopted, this is perfectly consistent 
 with them all. If any parts are adopted, this still 
 stands perfectly consistent with them, be they 
 whichever they may. So if all be rejected, this 
 stands in perfect consistency with the old Consti 
 tution. I therefore can see no reason why it should 
 be retained in its position in this chapter, rather 
 than stand by itself. It proposes a new method 
 of amending or altering our Constitution ; and if 
 it is adopted, then, whatever legislature may be in 
 power, might go on and execute the provision. 
 There can, therefore, be 110 possible reason why 
 this should be retained in its present place ; unless 
 it be to have an influence upon other measures 
 which gentlemen wish to get adopted without the 
 approbation of the people. I will not impute any 
 such motives to any member of the Convention. 
 
 It is well known that if the Constitution which 
 you now propose should be adopted, it will in 
 troduce a different basis of representation, and 
 will place the power to elect a majority of the 
 House of Representatives into the hands of about 
 one-third of the people. Now, I will inquire 
 whether any gentleman wishes to prevent the 
 
72d day.J 
 
 REVISED CONSTITUTION. 
 
 705 
 
 Monday,] 
 
 MORTON WILLIAMS WILSON STETSON BUTLER. 
 
 [August 1st. 
 
 adoption of this provision until this gross in 
 equality be introduced into the House of Repre 
 sentatives ? Are they afraid to trust anybody 
 with the administration of this but the one- third 
 House of Representatives ? I would not do any 
 one certainly not one of the Committee the 
 injustice to suppose that they had any desire so 
 unrighteous. 
 
 One word more in relation to the necessity of 
 the adoption of this provision. We never can 
 have an amendment of the House of Representa 
 tives without it. When the one-third get the 
 power they never will surrender it. The amend 
 ments provide that under them no constitutional 
 amendments can be proposed unless they are 
 adopted in two successive years, by a vote of two- 
 thirds of the House. It may, therefore, be safely 
 assumed that you never will have an amendment 
 of the House of Representatives made in this 
 way ; for one- sixth of the people of the State, 
 and those the most interested portion, could 
 always prevent any such amendment. One- 
 third of the House of Representatives could pre 
 vent the amendment from passing, and that third 
 might be chosen by only one-sixth part of the 
 whole people of the Commonwealth. Under 
 these circumstances, I will ask, do you desire to 
 confine the execution of this provision to the 
 action of so very small a number, especially when 
 it is considered that it is upon the very subject of 
 their own power, which men everywhere are so 
 very reluctant to yield ? 
 
 But I see, by the President s exceedingly kind 
 intimation, that my time has expired, and so I 
 will take my seat. There were a few words more 
 that I would have been glad to have added, had 
 time permitted. 
 
 Mr. WILLIAMS, of Taunton, asked for the 
 yeas and nays on the motion of Mr. Morton ; 
 and the question being put, the result was ayes, 
 37 ; noes, 189. 
 
 So the yeas and nays were not ordered. 
 
 Mr. WILSON obtained the consent of the Con 
 vention to correct two verbal mistakes in the 
 article under consideration. 
 
 Mr. STETSON, of Braintree. I trust, Mr. 
 President, that the Convention will separate this 
 fourth article from chapter fourteen, and put it in 
 among the miscellaneous amendments. I suppose 
 I did suppose, and I have supposed that the 
 people were to have the right to decide upon such 
 amendments as might be made by us, so far as it 
 could be done, by having the opportunity to vote 
 upon them in a separate and distinct form. I did 
 not expect that the doctors who have had the 
 preparation of these amendments were to put 
 them into the form of a bolus dose. I am gen 
 
 erally willing to take such doses as the doctors 
 prescribe, but if they give too large a dose, it 
 sometimes makes a person sick, and he throws it 
 all up ; and it may be that the people will serve 
 this Constitution in the same way. [Laughter.] 
 But, for my own part, I prefer to take medicine 
 in a homoeopathic way, and I think we should do 
 better to administer this new Constitution to the 
 people in homoeopathic doses. But if it is the 
 pleasure of the Convention to send all these nu 
 merous alterations and changes and amendments 
 out to the people, to be adopted or rejected to 
 gether, and if the people sanction it and submit 
 to it, I have nothing to say. Out of so many 
 new provisions, however, I think we can well 
 separate this, and put it as a separate proposition, 
 as suggested by the gentleman from Taunton. I 
 should like to have all these propositions acted 
 upon by the people separately, so that every man 
 could vote for what he liked and vote against 
 every thing else ; but I presume the Convention 
 will decide otherwise, and the people will be 
 obliged to take it as we give it to them. I trust 
 that, upon sober reflection, however, the Conven 
 tion will agree to the amendment of the gentle 
 man from Taunton, and put this fourth article 
 into the supplement. 
 
 Mr. BUTLER, of Lowell. I should be sorry 
 to take up the time of the Convention at this late 
 hour, but there are two or three things that have 
 lately been said upon this amendment, that I 
 cannot allow to pass, so far as I am concerned, 
 without a word of reply. I had supposed, that 
 after the very learned, able and experienced gen 
 tleman, from Taunton had proposed the district 
 system, in various ways after he had called for 
 it four times and had had the yeas and nays 
 called upon it three several times, in various 
 stages, that he would hardly have wished, at this 
 hour of the night, to trouble us with it again. I 
 have no doubt but that what he has done has 
 been done in perfect good faith I am bound to 
 suppose that but I will state what seems to be 
 the result to which he has arrived. He professes 
 to be a friend to the district system ; he is anxious 
 to have the district system adopted in this Com 
 monwealth ; but he has found that the district 
 system is unpalatable to a very large majority of 
 this Convention I may say, to almost if not 
 quite a hundred majority and now, if he really 
 wants the district system, when he finds it is so 
 unpalatable, why does he object to let us put it 
 in here and sweeten it with some other proposi 
 tions before it goes out to the people ? Why does 
 he object to our sweetening it and sending it out 
 to the people, telling them that they must take 
 the bitter with the sweet ? That is a very fair 
 
706 
 
 REVISED CONSTITUTION. 
 
 [72d day. 
 
 Monday,] 
 
 BUTLER MORTON WILLIAMS. 
 
 [August 1st. 
 
 comparison, I admit; for in every position in 
 which we find ourselves in this world, we are 
 bound to take the good and bad together. 
 
 Mr. MORTON. The gentleman entirely mis 
 understood me ; and if he will allow me, I will 
 state what I said. I stated, or meant to state, to 
 the Convention, that the proposition, although it 
 was not very palatable to me, yet it might be so 
 to a good many people, and the putting it in 
 there might induce some people to vote for the 
 House of Representatives. While I am up, I 
 wish to correct another statement of the gentle 
 man, about calling for the yeas and nays. I be 
 lieve I have not called for them this session. 
 
 Mr. BUTLER. I can say the same thing 
 again. Qui facit per alium, facit per se. Per 
 haps the gentleman will not deny that he asked 
 his colleague to call for them. 
 
 Mr. WILLIAMS. I will answer for myself, 
 that I was not asked to call for them. 
 
 Mr. BUTLER. I spoke to one gentlemar 
 from Taunton, and not the other. 
 
 Mr. MORTON. I will answer then, that I 
 did not say a word to that gentleman about it. 
 
 Mr. BUTLER. It was all accidental, then. 
 The gentleman from Taunton went over there by 
 accident, and his colleague called for the yeas and 
 nays by accident ! I am bound to believe it. 
 
 Mr. WILLIAMS. I want to know if the gen 
 tleman intends to impute prevarication to me. 
 
 Mr. BUTLER. Not the least in the world ; 
 what are you so anxious for? "Let the galled 
 jade wince my withers are un wrung !" What 
 is the trouble ? I will only say again that the 
 yeas and nays upon these various propositions 
 have been called for three several times. The 
 gentleman from Taunton says we take the bitter 
 with the sweet. I call it bitter, but perhaps it 
 may be like the little book in the angel s hand, 
 sweet in the mouth and bitter in the belly. I 
 call this bitter, and I say, put the sweet with it. 
 I ask the gentleman in all soberness, I respect 
 his grey hairs, for I am bound to respect them, 
 what part of this Constitution he feels it his duty 
 to compare to an assignation house ? He compares 
 the district system to a church ; but where is the 
 assignation house ? He compares some provisions 
 to a school ; but where is the gambling house in 
 this Constitution ? I submit, with great deference 
 to the gentleman, for I am bound to defer to his 
 experience ; I am bound to defer to his taste ; 
 but I simply ask him whether it is either good 
 taste or good logic, and I hope he will excuse me 
 if I add, good manners, thus to characterize that 
 which has met the approval of this Convention. 
 I do not think he meant it ; I think it was a slip 
 of the tongue. If it had come from a young per 
 
 son of hot blood, after dinner, I should have 
 known that it was a slip of the tongue ; but I 
 scarcely expected such a remark from an elderly 
 gentleman of the character of the gentleman from 
 Taunton. I will call attention to one other state 
 ment of that gentleman. He says that we never 
 can get our Constitution amended, because it re 
 quires two-thirds of the House of Representatives. 
 Why, Sir, this proposition requires, first, that the 
 legislature should submit the district system. 
 They cannot help it. They are bound, constitu 
 tionally, by a majority vote, to do it. They will 
 be obliged to submit it in 1856. 
 
 Mr. MORTON, (interposing). I spoke of the 
 ordinary provisions of the Constitution ; I had 
 no reference to this at all, except so far as the 
 provision goes that it shall require two-thirds. I 
 am surprised that the gentleman should have got 
 that idea from anything that I said. 
 
 Mr. BUTLER. I understand the state of the 
 case to be this, they must vote in 1855 by a ma 
 jority of the House of Representatives, and of 
 the Senate 
 
 Mr. MORTON, (in his seat). If you adopt 
 this, I admit it. 
 
 Mr. BUTLER. If this is adopted. Now, Sir, 
 he wants a district system, and we have put this 
 in here where every gentleman who has spoken 
 to-day thinks is the best chance of having it 
 adopted, by putting the whole together. Now I 
 ask what objection there can be to it. I will tell 
 what I think will be the effect of his proposition, 
 although of course I know he does not mean it. 
 We all know that a district system must come, 
 sooner or later. Every-body believes that the 
 State has got to be districted for choosing repre 
 sentatives, either before or after this is adopted 
 by the people, and I do not see any difference 
 which it is. Now the friends of the Convention 
 come forward and say to the people : " We are 
 ready to give you a district system if you want it." 
 I do not think they do ; but if they do they shall 
 have a chance at it. Why are not gentlemen 
 ready to take it ? I will tell you what, in my 
 judgment, is thought to be the effect of it. I 
 think some gentlemen I do not refer to anybody 
 in particular, and so I shall not run under your 
 hammer, Mr. President some gentlemen are 
 afraid to have it go out as a well-framed, well- 
 put-together proposition ; they are afraid to have it, 
 and why ? Because then we can say to the peo 
 ple, not that we give them churches and assigna 
 tion houses, and they must take both, or neither ; 
 we say to them : If you want a district system, and 
 believe that you are ready for it, vote for your 
 Constitution and you will get it ; but if you do 
 not, if you prefer the system which was sustained 
 
72d day.] 
 
 REVISED CONSTITUTION. 
 
 707 
 
 Monday,] 
 
 BUTLER, HILLARD. 
 
 [August 1st. 
 
 by this Convention by more than a hundred ma 
 jority, you are at liberty to retain it and there is 
 no harm done. 
 
 Now what is there wrong in that ? Is anybody 
 wronged, anybody troubled, anybody harmed. 
 Every-body agrees that if you put out the propo 
 sition alone it does not stand quite so good a 
 chance. Gentlemen who want the district sys 
 tem, why not march up and take it. I believe 
 that if this is put into the Constitution it goes by 
 forty thousand majority at least, in the Com 
 monwealth. It spikes the guns of certain per 
 sons, and that is the trouble. Now they want to 
 get this out alone. I believe, in their opposition 
 to this proposition, that we have the last expiring 
 trick of conservatism. The last. And as this 
 proposition is voted down by the Convention, the 
 last shot is fired, and we shall go out to the peo 
 ple as we have been here, in spite of now and then 
 a man against us whom we expected to be for us, 
 and who if he had not professed to be a friend of 
 reform, would have had no more chance of getting 
 here than he would of getting to Heaven, and 
 that is putting it strong enough. [Laughter.] 
 
 Gentlemen will find that we are not of those 
 who do not dare to trust the people. We say we 
 trust you with anything, bxit we propose to send 
 you a machine perfect in all its parts ; not a hob 
 bling machine, with this thing left out, and that 
 thing left in, where they ought not to be ; not 
 such a thing as that, but a thing perfect in all its 
 parts. That is the Constitution which we pro 
 pose to send out to the people, and not such a con 
 cern as will enable some judge, a few years hence, 
 to come forward and put it in a revised form, and 
 claim a copy-right of it. I thank God that we 
 are to have a Constitution which no judge, pre 
 sent or to come, can obtain a copy-right of, and 
 winch we cannot print until we get his permis 
 sion. We have come up here to have a Constitu 
 tion and get rid of a patent. 
 
 Mr. HILLARD, of Boston. The remarks of 
 the gentleman from Taunton, (Mr. Morton,) have 
 opened a pretty wide range of discussion and in 
 quiry. It is far too late, and the Convention far 
 too impatient to justify me in travelling far in any 
 of those paths. But I beg leave to ask the atten 
 tion of the Convention for a very few moments, to 
 considerations suggested by what fell from his lips. 
 
 What is the work to which we have been ad 
 dressing ourselves ? and in what spirit should we 
 have approached that work ? We have been 
 making a Constitution, the highest secular duty 
 which can be devolved upon man under a free 
 government. The relation of constitutional law 
 to legislative enactments has been somewhat dis 
 cussed in books, it has been treated by writers 
 
 upon political philosophy, but the relation of 
 constitutional law to the political parties into 
 which the country has been divided, has, as yet, 
 not attracted the attention of writers upon politics ; 
 and yet it is a most important and novel branch 
 of political science, and one which, each day, is 
 assuming a new importance. 
 
 What is a model Constitution, and what would 
 be a model Convention for making a Constitution ? 
 It would be a Convention anterior to the forma 
 tion of parties, in which every man might reason 
 ably expect to find himself, at some future time 
 in the minority, because the object of a Constitu 
 tion is to protect the minority. Therefore the 
 best Constitutions are those which have been 
 framed at a time when no man could tell where 
 the political changes of the future might place 
 him. It is one of the many felicities of our own 
 history that the great political parties of our 
 country grew out of the Constitution of the United 
 States, and that the Constitution of the United 
 States did not grow out of the mere political parties 
 of the country. It was a difficult task to make a 
 Constitution in 1789, and I think it would be an 
 impossible task to make one now. If we should 
 succeed, it would not be so good an instrument as 
 that which we now enjoy. The greater majority 
 any political party has in a Convention, the more 
 magnanimous they can afford to be to the mi 
 nority. But if party politics, if political parties 
 and I make this as a general remark with no 
 particular application to this Convention, for I 
 would not utter a word of recrimination or re 
 proach, not a word to jar upon the harmony of 
 feeling with which we should break up if polit 
 ical parties, instead of finding their vent in our 
 primary assemblies, and in our legislatures, come 
 to fight their battles in a Constitutional Conven 
 tion, I have only to say that it is an element of 
 peril in our institutions, never contemplated by 
 their founders, and never considered by writers 
 upon political science, because you see that the 
 result will be that the more powerful a majority 
 is, and the more that majority are actuated by 
 party feelings, the more they depart from the true 
 functions of a Constitutional Convention, which 
 is to make a Constitution which shall protect the 
 minority. If, on the other hand, they come to 
 gether with the assured purpose of oppressing the 
 minority, and of strengthening the power which 
 they hold in their own hands, so that the sceptre 
 which they hold shall be transmitted in a lineal 
 line of succession, I say they steer by a false star, 
 and never can land upon a safe shore. I would 
 be no prophet of evil, but here we are making 
 arrangements for a Constitutional Convention 
 every twenty years. In every State of the Union 
 
708 
 
 REVISED CONSTITUTION. 
 
 [72d day. 
 
 Monday,] 
 
 HlLLABD BOUTWELL. 
 
 [August 1st. 
 
 the Constitutions are renewed about once in a 
 generation, and so far as experience has gone, 
 each Convention that has been gathered together 
 has had more of partisan feeling than its prede 
 cessor, and each succeeding Constitution has re 
 flected more of the party spirit of the majority, 
 and has more and more departed from its proper 
 function, which is to protect the minority ; and as 
 a general rule, wherever there has been a change, 
 the earlier Constitutions have been the best. 
 Now I will make no charge. Let every man 
 judge and speak for himself, but I put it to gen 
 tlemen who have had the responsibility of this 
 Convention, and I ask them, not here and now, 
 in the glow and heat of our struggles and conten 
 tions, but when they go home and commune 
 with their own hearts, I ask them to question 
 themselves if they have approached this high 
 work in the high spirit in which they should 
 have done, or whether the first impulse, the first 
 motive and the first principle which has guided 
 them, has not been one which, to say the least, 
 ought to have been the last. 
 
 Now, on what ground was this Convention 
 opposed, and voted against by those who did op 
 pose and vote against it ? For one, so far as I 
 can judge from my own feelings, and from those 
 with whom I am in the habit of acting, it was 
 because it was a Convention which was wrung 
 out of a party struggle, and that of necessity it 
 must be a party Convention. And I ask gentle 
 men in the majority, in no unkind feeling, if 
 there was not reason in those fears and apprehen 
 sions ? I put it to some of the gentlemen who 
 have been in the habit of acting in the majority, 
 whether our apprehensions were wholly unreas 
 onable ? I would ask, if from the beginning to 
 the end there has not been too much of this party 
 element in our deliberations, and if the provisions 
 of this Constitution, and especially the last and 
 closing act of this eventful drama, have not been 
 too much tinged by the ignoble desire of securing 
 in the hands which now sway the destinies of the 
 Commonwealth, those destinies ? I would ask 
 gentlemen if they have elevated their minds to 
 the proper point of view from which to contem 
 plate their duties and responsibilities ? if they 
 have been actuated by the single wish to provide 
 that which was best for the people, best for the 
 Commonwealth, best for the generation which is 
 to come, and to put it forward to the people in 
 such a manner as shall secure their deliberate 
 action upon it, or whether they have been actu 
 ated by that other class of motives winch I will 
 no longer dwell upon. I put it to them, and let 
 them find the answer in the silence of their own 
 hearts. 
 
 Mr. BOUTWELL, for Berlin. I have no de 
 sire to dwell long upon some topics which have 
 been introduced by the gentleman from Taunton, 
 Mr. (Morton,) and by. the gentleman from Boston 
 (Mr. Hillard). This Convention, under an Act 
 of the legislature, sustained by the people, 
 assembled to revise the Constitution of this 
 Commonwealth. I understand the gentleman 
 from Taunton, and the gentleman from Boston, 
 to protest against the conclusion of the business 
 for which this assembly have convened, and 
 coupled with that protest, they proceed, if not 
 to impugn the motives of the gentlemen upon 
 the other side, at least to approach to the very 
 nearest point of imputation. Not for the pur 
 pose of thus arraigning each other have we as 
 sembled, and for my part, I desire not that the 
 last moments of this Convention should be em 
 bittered by considerations of such a nature. I 
 trust, Sir, unless I have deceived myself, I have 
 read lectures to no man upon this floor. I came 
 not here for that purpose, but to do my duty as a 
 delegate of the people, acknowledging no respon 
 sibility to any associates here, but for the obliga 
 tions which social life and the courtesies of our 
 natures demand. To the people alone, are we 
 responsible. That responsibility, I for one, take ; 
 its consequences I shall never shun. The ma 
 jority of this Convention, as was their duty, have 
 taken the responsibility ; and if they go before 
 the people and cannot defend their proceedings, 
 they fall. If they can defend their proceedings 
 here, whatever gentlemen upon this floor may 
 say, their conduct will be sustained, and their 
 proceedings will stand. 
 
 I desire, Sir, that instead of arraigning each 
 other, we proceed to the conscientious discharge 
 of the duties before us, that he who desires not 
 to take the responsibilities of these last moments 
 of this Convention, upon that record, shall escape 
 the responsibility ; but let him, in justice to his 
 fellows, allow them to take tiie responsibility if 
 they choose to do it. For one, I take what be 
 longs to me. 
 
 It was for the purpose of expressing the opin 
 ions which I have, that I arose at this time. For 
 one, I desire to. enter into no criminations or 
 recriminations. I have no doubt that errors have 
 been committed by the majority. We do not 
 claim to have been perfect here. Errors may have 
 been committed by the minority, and it may be 
 that the shield of public charity is as necessary 
 for them as for us. 
 
 The question was then taken upon the motion 
 offered by the gentleman from Taunton, (Mr. 
 Morton,) and there were, on a division ayes, 53 ; 
 noes, 169. 
 
72d day.] REVISED CONSTITUTION. 
 
 709 
 
 Monday,] WILKINSON DANA YEAS NAYS. 
 
 [August 1st. 
 
 So the motion did not prevail. 
 
 Bigelow, Jacob 
 
 Livermore, Isaac 
 
 The question then recurring upon the final 
 
 Bradbury, Ebenezer 
 
 Lothrop, Samuel K. 
 
 passage of the resolve numbered " one" 
 
 Brewster, Osmyn 
 
 Marvin, Theophilus R. 
 
 Mr. WILKINSON, of Dedham, said : I sup 
 pose it may be proper now to offer an amend 
 
 Bullock, Rufus 
 Carter, Timothy W. 
 Choate, Rufus 
 
 Miller, Seth, Jr. 
 Morey, George 
 Morton, Marcus 
 
 ment, but which, in the present state of excite 
 
 Cogswell, Nathaniel 
 
 Oliver, Henry K. 
 
 ment in the House, I do not wish to take up the 
 
 Cole, Lansing J. 
 
 Orcutt, Nathan 
 
 time of the Convention in discussing. It seems 
 to me that the proposition should be distinctly 
 passed upon by this Convention, whether the 
 
 Cook, Charles E. 
 Crockett, George W. 
 Crosby, Leander 
 Davis, Solomon 
 
 Paige, James W. 
 Parker, Adolphus G. 
 Parker, Samuel D. 
 Perkins, Daniel A. 
 
 people shall have the right to pass upon these 
 
 Dennison, Hiram S. 
 
 Plunkett, William C. 
 
 amendments separately. We have had a stand 
 
 Ely, Homer 
 
 Pomroy, Jeremian 
 
 ing rule during the sitting of this Convention, by 
 
 Eustis, William T. 
 
 Preston, Jonathan 
 
 which any person might ask for a division of the 
 question when susceptible of division, and we 
 
 Farwell, A. G. 
 Gilbert, Wanton C. 
 Giles, Joel 
 
 Read, James 
 Reed, Sampson 
 Sargent, John 
 
 have voted upon these several propositions sep 
 
 Hale, Nathan 
 
 Sherman, Charles 
 
 arately, and I am desirous to submit to the con 
 
 Hammond, A. B. 
 
 Sleeper, John S. 
 
 sideration of this Convention the propriety of 
 
 Hathaway, Elnathan P. 
 
 Souther, John 
 
 allowing the people to do what we have done in 
 this Convention. I would therefore move that 
 the Report be recommitted to the Committee with 
 
 Hawkes, Stephen E. 
 Hayward, George 
 Hillard, George S. 
 Hinsdale, William 
 
 Stetson, Caleb 
 Stevens, Charles G. 
 Thompson, Charles 
 Tileston, Edmund P. 
 
 instructions to report the several amendments 
 
 Houghton, Samuel 
 
 Weeks, Cyrus 
 
 agreed upon by this Convention, in such form, 
 
 Hunt, William 
 
 Wetmore, Thomas 
 
 and with such reference to parts of the existing 
 
 Jenkins, John 
 
 White, Benjamin 
 
 Constitution proposed to be altered or annulled, 
 that each of said amendments may be separately 
 
 Jenks, Samuel H. 
 Kellogg, Giles C. 
 Knight, Joseph 
 
 Wilder, Joel 
 Wilkinson, Ezra 
 Williams, Henry 
 
 submitted to the people for their adoption or 
 
 Ladd, John S. 
 
 Wilson, Milo 
 
 rejection. 
 
 Lawton, Job G., Jr. 
 
 Wood, Nathaniel 
 
 The PRESIDENT. The Chair would state 
 
 Lincoln, Fred. W., Jr. 
 
 
 that the motion is applicable only to the resolve 
 
 
 
 numbered " one ; " but it can be applied to each 
 
 NAY3. 
 
 proposition as it comes up. The propositions 
 
 Adams, Shubael P. 
 
 Chandler, Amariah 
 
 were susceptible of division, and under a rule of 
 
 Allen, James B. 
 
 Chapin, Chester W. 
 
 the Convention the Chair must state the questions 
 
 Allen, Joel C. 
 
 Chapin, Daniel E. 
 
 
 Alley, John B. 
 
 Chapin, Henry 
 
 Mr. DANA, for Manchester. Before that 
 
 Allis, Josiah 
 Alvord, D. W. 
 
 Childs, Josiah 
 Clark, Salah 
 
 question is put, I move to amend the first resolve 
 
 Baker, Hillel 
 
 Clarke, Alpheus B. 
 
 so as to make it conform, in that part which re 
 
 Ball, George S. 
 
 Cole, Sumner 
 
 fers to chapter eight, to the language of that title 
 
 Bancroft, Alpheus 
 
 Crane, George B. 
 
 as we have amended it. 
 
 Barrett, Marcus 
 
 Crittenden, Simeon 
 
 The question was taken and the motion was 
 agreed to, and the resolve was amended accord 
 
 Bates, Moses, Jr. 
 Beal, John 
 Bird, Francis W. 
 
 Cross, Joseph W. 
 Cushman, Henry W. 
 Cushman, Thomas 
 
 ingly. 
 
 Bishop, Henry W. 
 
 Dana, Richard H., Jr. 
 
 The question recurring upon the motion of Mr. 
 
 Booth, William S. 
 
 Davis, Isaac 
 
 Wilkinson 
 
 Boutwell, George S. 
 
 Davis, Robert T. 
 
 Mr. WILKINSON called for the yeas and 
 
 Boutwell, Sewell 
 Breed, Hiram N. 
 
 Dean, Silas 
 Deming, Elijah S. 
 
 nays upon it. 
 
 Bronson, Asa 
 
 Dentoii, Augustus 
 
 The yeas and nays were ordered, one-fifth of 
 
 Brown, Adolphus F. 
 
 Dunham, Bradish 
 
 the persons voting having voted therefor, there 
 
 Brown, Hammond 
 
 Durgin, John M. 
 
 being, on a division ayes, 51 ; noes, 181. 
 The yeas and nays were then called upon the 
 motion offered by Mr. Wilkinson, and there were 
 
 Brown, Hiram C. 
 Brownell, Frederick 
 Brownell, Joseph 
 Bryant, Patrick 
 
 Eames, Philip 
 Earle, John M. 
 Easland, Peter 
 Eaton, Calvin D. 
 
 yeas, 73 ; nays, 170 as follows : 
 
 Buck, Asahel 
 
 Edwards, Elisha 
 
 
 Bullen, Amos H. 
 
 Fay, Sullivan 
 
 YEAS. 
 
 Burlingame, Anson 
 
 Fellows, James K. 
 
 Adams, Benjamin P. Barrows, Joseph 
 Aldrich, P. Emory Beach, Erasmus D. 
 
 Butler, Benjamin F. 
 Caruthers, William 
 
 Fisk, Lyman 
 Foster, Aaron 
 
 Aspinwall, William Beebe, James M. 
 
 Case, Isaac 
 
 Foster, Abram 
 
710 
 
 REVISED CONSTITUTION. 
 
 [72 d day. 
 
 Monday,] 
 
 NATS ABSENT. 
 
 [August 1st. 
 
 Fowle, Samuel 
 
 Parris, Jonathan 
 
 Braman, Milton P. 
 
 Huntington, George H. 
 
 Freeman, James M. 
 
 Partridge, John 
 
 Brinley, Francis 
 
 Hurlburt, Samuel A. 
 
 French, Charles A. 
 
 Penniman, John 
 
 Briggs, George N. 
 
 Hyde, Benjamin D. 
 
 French, Rodney 
 
 Perkins, Noah C. 
 
 Brown, Alpheus R. 
 
 Jackson, Samuel 
 
 French, Samuel 
 
 Phinney, Sylvanus B. 
 
 Brown, Artemas 
 
 James, William 
 
 Frothirgham, 11 d, Jr. 
 
 Pierce, Henry 
 
 Bumpus, Cephas C. 
 
 Johnson, John 
 
 Gardner, Johnson 
 
 Pool, James M. 
 
 Cady, Henry 
 
 Kellogg, Martin R. 
 
 Gates, Elbridge 
 
 Powers, Peter 
 
 Churchill, J. McKean 
 
 Keyes, Edward L. 
 
 Gilbert, Washington 
 
 Putnam, John A. 
 
 Clark, Henry 
 
 Kimball, Joseph 
 
 Giles, Charles G. 
 
 Rantoul, Robert 
 
 Clark, Ransom 
 
 Kingman, Joseph 
 
 Gooding, Leonard 
 
 Rawson, Silas 
 
 Clarke, Stillman 
 
 Kinsman, Henry W. 
 
 Graves, John "W. 
 
 Rice, David 
 
 Cleverly, William 
 
 Knight, Jefferson 
 
 Green, Jabez 
 
 Richards, Luther 
 
 Coggin, Jacob 
 
 Knowlton, Charles L. 
 
 Greene, William B. 
 
 Richardson, Daniel 
 
 Conkey, Ithamar 
 
 Kuhn, George H. 
 
 Griswold, Josiah W. 
 
 Richardson, Nathan 
 
 Cooledge, Henry F. 
 
 Lawrence, Luther 
 
 Griswoid, Whiting 
 
 Richardson, Samuel H. 
 
 Copeland, Benjamin F. 
 
 Lincoln, Abishai 
 
 Hadley, Samuel P. 
 
 Ring, Elkanah, Jr. 
 
 Cressy, Oliver S. 
 
 Littlcfield, Tristram 
 
 Hall, Charles B. 
 
 Rogers, John 
 
 Crowell, Seth 
 
 Loomis, E. Justin 
 
 Hallett, B. F. 
 
 Ross, David S. 
 
 Crowninshield, F. B. 
 
 Lord, Otis P. 
 
 Hapgood, Seth 
 
 Royce, James C. 
 
 Cummings, Joseph. 
 
 Loud, Samuel P. 
 
 Harmon, Phineas 
 
 Sanderson, Amasa 
 
 Curtis, Wilbur 
 
 Lowell, John A. 
 
 Haskins, William 
 
 Sanderson, Chester 
 
 Cutler, Simeon N. 
 
 Marcy, Laban 
 
 Heath, Ezra, 2d 
 
 Schouler, William 
 
 Davis, Charles G. 
 
 Marvin, Abijah P. 
 
 Hewes, William H. 
 
 Sherril, John 
 
 Davis, Ebenezer 
 
 Meader, Reuben 
 
 Hobart, Henry 
 
 Sikes, Chester 
 
 Davis, John 
 
 Mixter, Samuel 
 
 Hood, George 
 
 Simmons, Perez 
 
 Dawes, Henry L. 
 
 Moore, James M. 
 
 Howard, Martin 
 
 Simonds, John W. 
 
 Day, Gilman 
 
 Morss, Joseph B. 
 
 Hoyt, Henry K. 
 
 Smith, Matthew 
 
 Denon, William 
 
 Newman, Charles 
 
 Hurlbut, Moses C. 
 
 Sprague, Melzar 
 
 DeWitt, Alexander 
 
 Nichols, William 
 
 Ide, Abijah M., Jr. 
 
 Spooner, Samuel W. 
 
 Doane, James C. 
 
 Norton, Alfred 
 
 Jacobs, John 
 
 Stevens, Granville 
 
 Dornian, Moses 
 
 Noyes, Daniel 
 
 Kendall, Isaac 
 
 Stiles, Gideon 
 
 Duncan, Samuel 
 
 Ober, Joseph E. 
 
 Knight, Hiram 
 
 Strong, Alfred L. 
 
 Easton, James, 2d 
 
 Orne, Benjamin S. 
 
 Knowlton, J. S. C. 
 
 Taft, Arnold 
 
 Eaton, Lilley 
 
 Park, John G. 
 
 Knowlton, William H. 
 
 Tilton, Abraham 
 
 Edwards, Samuel 
 
 Parker, Joel 
 
 Knox, Albert 
 
 Tyler, William 
 
 Ely, Joseph M. 
 
 Parsons, Samuel C. 
 
 Ladd, Gardner P. 
 
 Underwood, Orison 
 
 Fiske, Emery 
 
 Parsons, Thomas A. 
 
 Langdon, Wilber C. 
 
 Yinton, George A. 
 
 Fitch, Ezekiel W. 
 
 Payson, Thomas E. 
 
 Leland, Alden 
 
 Wallace, Frederick T. 
 
 Fowler, Samuel P. 
 
 Peabcdy, George 
 
 Little, Otis 
 
 Wallis, Freeland 
 
 French, Charles H. 
 
 Peabody, Nathaniel 
 
 Marble, William P. 
 
 Walker, Amasa 
 
 Gale, Luther 
 
 Pease, Jeremiah, Jr. 
 
 Mason, Charles 
 
 Waters, Asa H. 
 
 Gardner, Henrv J. 
 
 Perkins, Jesse 
 
 Merritt, Simeon 
 
 Weston, Gershom B. 
 
 Gooch, Daniel W. 
 
 Perkins, Jonathan C. 
 
 Monroe, James L. 
 
 Whitney, Daniel S. 
 
 Gould, Robert 
 
 Phelps, Charles 
 
 Morton, Elbridge G. 
 
 Whitney, James S. 
 
 Goulding, Dalton 
 
 Prince, F. O. 
 
 Morton, Marcus, Jr. 
 
 Wilbur, Daniel 
 
 Goulding, Jason 
 
 Putnam, George 
 
 Morton, William S. 
 
 Williams, J. B. 
 
 Gray, John C. 
 
 Rockwell, Julius 
 
 Nash, Hiram 
 
 Wilson, Henry 
 
 Greenleaf, Simon 
 
 Rockwocd, Joseph M. 
 
 Nayson, Jonathan 
 
 Wilson, Willard 
 
 Hu?e, Artemas 
 
 Sampson, George R. 
 
 Nute, Andrew T. 
 
 Winn, Jonathan B. 
 
 Hapgood, Lyman W. 
 
 Sheldon, Luther 
 
 Osgood, Charles 
 
 Winslow, Levi M. 
 
 Haskell, George 
 
 Stacy, Eben H. 
 
 Packer, E. Wing 
 
 Wood, Charles C. 
 
 Hayden, Isaac 
 
 Stevens, Joseph L., Jr. 
 
 Paine, Benjamin 
 
 Wood, Otis 
 
 Hazewell, Charles C. 
 
 Stevens, William 
 
 Paine, Henry 
 
 Wright, Ezekiel 
 
 Heard, Charles 
 
 Stevenson, J. Thomas 
 
 
 
 Henry, Samuel 
 
 Storrow, Charles S. 
 
 ABSENT. 
 
 Hersey, Henry 
 
 Stutson, William 
 
 
 
 Hewes, James 
 
 Sumner, Charles 
 
 Abbott, Alfred A. 
 
 Bartlett, Russel 
 
 Heywood, Levi 
 
 Sumner, Increase 
 
 Abbott, Josiah G. 
 
 Bartlett, Sidney 
 
 Hobart, Aaron 
 
 Swain, Alanson 
 
 Allen, Charles 
 
 Bates, Eliakim A. 
 
 Hobbs, Edwin 
 
 Taber, Isaac C. 
 
 Allen, Parsons 
 
 Bell, Luther Y. 
 
 Holder, Nathaniel 
 
 Talbot, Thomas 
 
 Andrews, Robert 
 
 Bennett, William, Jr. 
 
 Hooper, Foster 
 
 Taylor, Ralph 
 
 Appleton, William 
 
 Bennett, Zephaniah 
 
 Hopkinson, Thomas 
 
 Thayer, Joseph 
 
 Atwood, David C. 
 
 Bigelow, Edward B. 
 
 Howland, Abraham H. 
 
 Thayer, Willard, 2d 
 
 Austin, George 
 
 Blagden, George W. 
 
 Hubbard, William J. 
 
 Thomas, John W. 
 
 Avres, Samuel 
 
 Bliss, Gad O. 
 
 Hunt, Charles E. 
 
 Tilton, Horatio W. 
 
 Ballard, Alvah 
 
 Bliss, William C. 
 
 Iluntington, Asahel 
 
 Tower, Ephraim 
 
 Banks, Nathaniel P., Jr. Bradford, W T illiam J. A. 
 
 Huntington, Charles P. 
 
 Train, Charles R. 
 
72d day.] 
 
 REVISED CONSTITUTION. 
 
 711 
 
 Monday,] 
 
 OLIVER SCHOULER SARGENT MASON HALLETT YEAS. [August 1st. 
 
 Turner, David 
 Turner, David P. 
 Tyler, John S. 
 Upham, Charles "W. 
 Upton, George B. 
 Viles, Joel 
 Walcott, Samuel B. 
 Wales, Bradford L. 
 Walker, Samuel 
 
 Ward, Andrew H. 
 Warner, Marshal 
 Warner, Samuel, Jr. 
 Wheeler, William F. 
 White, George 
 Wilbur, Joseph 
 Wilkiiis, John H. 
 Wood, William H. 
 Woods, Josiah B. 
 
 Absent and not voting, 176. 
 
 So the motion was not agreed to. 
 
 Mr. O LITER, of Lawrence. I do not sup 
 pose that any proposition which I could make, 
 considering the condition which I occupy as one 
 of the minority, will meet with any particular 
 favor at the hands of the Convention, and yet I 
 will venture to make one more motion. I have 
 not any idea that any of the alkalies which have 
 gone into the Constitution to neutralize the acids, 
 will be removed ; but I should like to take out 
 that bantling of mine and let it ride alone ; there 
 fore I move that chapter eleven, in relation to the 
 militia, be taken out from the omnium-f/atherum, 
 and made a separate proposition, number nine, 
 so that it may be acted upon by the people sep 
 arately. 
 
 Mr. SCHOULER, of Boston. I am sorry to 
 see the gentleman from Lawrence making that 
 motion at this late hour. I think that what is in 
 the present Constitution in relation to the militia, 
 is better than this bantling of the gentleman from 
 Lawrence ; and I said so when the matter was un 
 der discussion. But, inasmuch as it is in there, and 
 inasmuch as the gentleman wants to get rid of it, 
 I hope he will allow it to remain, there. [Laugh 
 ter.] Therefore, I am in favor of keeping it 
 where it is. It is not so bad as I thought it was 
 at first, and probably that is the reason that he 
 wants to get it out. 
 
 Mr. SARGENT, of Cambridge. I hope the 
 motion will succeed. I do not think much of 
 this military law. It makes no provisions for 
 Sergeants, and therefore, I hope it will be put by 
 itself. [Laughter.] 
 
 The question was then taken on the motion of 
 Mr. Oliver, and it was decided in the negative. 
 
 Mr. MASON, of Fitchburg. I find that in 
 the latter part of article first, chapter second, there 
 is the word "be" before the word "chosen" 
 which seems to be superfluous. The clause now 
 reads as follows : 
 
 Each district shall be entitled to elect one 
 senator, who shall have been an inhabitant of this 
 Commonwealth for five years immediately pre 
 ceding his election, and at the time of his elec 
 tion shall be an inhabitant of the district for which 
 he is be chosen. 
 
 I move to strike out the word " be." 
 The question was taken and the motion was 
 agreed to. 
 
 Mr. MASON. I also move to insert the words 
 " to be " before the word "entitled" in article 
 two, chapter six, which is as follows : 
 
 ART. 2. Eight councillors shall be annually 
 chosen by the people ; and for that purpose the 
 State shall be divided by the General Court into 
 eight districts, each district to consist of five 
 coutiguous senatorial districts, and entitled to 
 elect one councillor, who shall hold his office 
 for one year next following the first Wednesday 
 in January, and until a successor is chosen and 
 qualified in his stead. 
 
 Mr. HALLETT. In my judgment the amend 
 ment weakens rather than strengthens the lan 
 guage. It now declares that they are entitled, and 
 the amendment says they are to be entitled. 
 When ? That language was well considered, is in 
 conformity to the old Constitution, and is good 
 Saxon English. 
 
 Mr. MASON. I withdraw the amendment. 
 
 The PRESIDENT. The question recurs upon 
 the final passage of proposition numbered " one." 
 
 Mr. BOUT WELL. This being the final dispo 
 sition of that proposition, I ask the yeas and nays 
 upon its passage. 
 
 The yeas and nays were ordered. 
 
 The roll was then called and there were yeas, 
 173 ; nays, 58 as follows : 
 
 Allen, James B. 
 Allen, Joel C. 
 Alley, John B. 
 Allis, Josiah 
 Alvord, D. W. 
 Austin, George 
 Baker, Hillel 
 Ball, George S. 
 Bancroft, Alpheus 
 Barrett, Marcus 
 Bates, Moses, Jr. 
 Beach, Erasmus D. 
 Beal, John 
 Bird, Francis W. 
 Bishop, Henry W. 
 Booth, William S. 
 Boutwell, George S. 
 Bout well, Sewell 
 Breed, Hiram N. 
 Bronson, Asa 
 Brown, Adolphus F. 
 Brown, Hammond 
 Brown, Hiram C. 
 Brownell, Frederick 
 Brownell, Joseph 
 Bryant, Patrick 
 Bullen, Amos H. 
 Burlingame, Alison 
 
 TEAS. 
 
 Butler, Benjamin F. 
 Carruthers, William 
 Case, Isaac 
 Chandler, Amariah 
 Chapin, Chester W. 
 Chapin, Daniel E. 
 .Chapin, Henry 
 Childs, Josiah 
 Clark, Ransom 
 Clark, Salah 
 Clarke, Alpheus B. 
 Cole, Lansing J. 
 Cole, Sumner 
 Crane, George B. 
 Crittenden, Simeon 
 Cross, Joseph W. 
 Cushman, Henry W. 
 Dana, Richard II., Jr. 
 Davis, Isaac 
 Davis, Robert T. 
 Dean, Silas 
 Denton, Augustus 
 Dunham, Bradish 
 Durgin, John M. 
 Eames, Philip 
 Earle, John M. 
 Easlaiid, Peter 
 Eaton, Calvin D. 
 
712 
 
 REVISED CONSTITUTION. 
 
 [72 d day. 
 
 Monday,] 
 
 NAYS ABSENT. 
 
 [August 1st. 
 
 Edwards, Elisha 
 
 Nayson, Jonathan Crosby, Leander 
 
 Miller, Seth, Jr. 
 
 Fay, Sullivan 
 
 Nute, Andrew T. 
 
 Davis, Solomon 
 
 Morey, George 
 
 Fellows, James K. 
 
 Osgood, Charles 
 
 Denison, Hiram S. 
 
 Morton, Marcus 
 
 Fisk, Lyman 
 
 Packer, E. Wing 
 
 Ely, Homer 
 
 Oliver, Henry K. 
 
 Foster, Aaron 
 
 Paine, Benjamin 
 
 Farwell, A. G. 
 
 Orcutt, Nathan 
 
 Foster, Abram 
 
 Paine, Henry 
 
 Gilbert, Wanton C. 
 
 Paige, James W. 
 
 Fowle, Samuel 
 
 Parris, Jonathan 
 
 Giles, Joel 
 
 Parker, Adolphus G. 
 
 Freeman, James M. 
 
 Partridge, John 
 
 Hale, Nathan 
 
 Plunkett, William C. 
 
 French, Charles A. 
 
 Penmman, John 
 
 Hammond, A. B. 
 
 Preston, Jonathan 
 
 French, Rodney 
 
 Perkins, Daniel A. 
 
 Hayward, George 
 
 Read, James 
 
 French, Samuel 
 
 Perkins, Noah C. 
 
 Hillard, George S. 
 
 Reed, Sampson 
 
 Frothingham, R., Jr. 
 
 Phinney, Silvanus B. 
 
 Hinsdale, William 
 
 Sargent, John 
 
 Gardner, Johnson 
 
 Pierce, Henry 
 
 Houghton, Samuel 
 
 Sikes, Chester 
 
 Gates, Elhridge 
 
 Pool, James M. 
 
 Hunt, William 
 
 Sleeper, John S. 
 
 Gilbert, Washington 
 
 Powers, Peter 
 
 Hurlburt, Samuel A. 
 
 Souther, John 
 
 Giles, Charles G. 
 
 Putnam, John A. 
 
 Jenkins, John 
 
 Stevens, Charles G. 
 
 Gooding, Leonard 
 
 Pvantoul, Robert 
 
 Jenks, Samuel H. 
 
 Tileston, Edmund P. 
 
 Graves, John W. 
 
 Rice, David 
 
 Kellogg, Giles C. 
 
 Weeks, Cyrus 
 
 Green, Jabez 
 
 Richards, Luther 
 
 Ladd, John S. 
 
 White, Beniamin 
 
 Greene, William B. 
 
 Richardson, Daniel 
 
 Lincoln, Frederic W., Jr. Wilder, Joel 
 
 GrisM old, Josiah W. 
 
 Richardson, Nathan 
 
 Livermore, Isaac 
 
 Wilkinson, Ezra 
 
 Griswold, Whiting 
 
 Richardson, Samuel H. 
 
 Lothrop, Samuel K. 
 
 Williams, Henry 
 
 Hadley, Samuel P. 
 
 Ring, Elkanah, Jr. 
 
 Marvin, Theophilus R. 
 
 Wilson, Milo 
 
 Hall, Charles B. 
 
 Rogers, John 
 
 
 
 Hallett, B. F. 
 
 Ross, David S. 
 
 ABSENT. 
 
 Hapgood, Seth 
 Harmon, Phineas 
 Hathaway, Elnathan P. 
 Hawkes, Stephen E. 
 Hay den, Isaac 
 Heath, Ezra, 2d 
 Hewes, William H. 
 Hobart, Henry 
 Hood, George 
 Howland, Abraham H. 
 Hoyt, Henry K. 
 Hurlbut, Moses C. 
 Hyde, Benjamin D. 
 Ide, Abijah M., Jr. 
 Jacobs, John 
 Kendall, Isaac 
 Knight, Hiram 
 Knight, Joseph 
 Knowlton, J. S. C. 
 Knowlton, William H. 
 Knox, Albert 
 Ladd, Gardner P. 
 Langdon, Wilber C. 
 Lawton, Job G., Jr. 
 Leland, Alden 
 Little, Otis 
 Marble, William P. 
 Mason, Charles 
 Merritt, Simeon 
 Monroe, James L. 
 Morton, Elbridge G. 
 Morton, Marcus, Jr. 
 
 Royce, James C. 
 Sanderson, Amasa 
 Sherril, John 
 Simmons, Perez 
 Simonds, John W. 
 Smith, Matthew 
 Spooner, Samuel W. 
 Stevens, Granville 
 Stiles, Gideon 
 Strong, Alfred L. 
 Taft, Arnold 
 Til ton, Abraham 
 Tyler, William 
 Underwood, Orison 
 Vinton, George A. 
 Wallace, Frederick, T. 
 Wallis, Freeland 
 Walker, Amasa 
 Waters, Asa H. 
 Weston, Gershom B. 
 White, George 
 Whitney, Daniel S. 
 Whitney, James S. 
 Wilbur, Daniel 
 Williams, J. B. 
 Wilson, Henry 
 Wilson, Willard 
 Winn, Jonathan B. 
 Winslow, Levi M. 
 Wood, Charles C. 
 Wood, Nathaniel 
 Wood, Otis 
 
 Abbott, Alfred A. Crowninshield, F. B. 
 Abbott, Josiah G. Cummings, Joseph 
 Adams, Shubael P. Curtis, Wilber 
 Allen, Charles Cushman, Thomas 
 Allen, Parsons Cutler, Simeon N. 
 Andrews, Robert Davis, Charles G. 
 Appleton, William Davis, Ebenezer 
 Atwood, David C. Davis, John 
 Ayres, Samuel Dawes, Henry L. 
 Ballard, Alvah Day, Gilman 
 Banks, Nathaniel P., Jr. Dehon, William 
 Bartlett, Sidney Deming, Elijah S. 
 Bates, Eliakim A. DeWitt, Alexander 
 Bell, Luther V. Doane, James C. 
 Bennett, William, Jr. Dorman, Moses 
 Bennett, Zephaniah Duncan, Samuel 
 Bigelow, Edward B. Easton, James, 2d 
 Blagden, George W. Eaton, Lilley 
 Bliss, Gad O. Edwards, Samuel 
 Bliss, William C. Ely, Joseph M. 
 Bradford, William J. A. Eustis, William T. 
 Braman, Milton P. Fiske, Emery 
 Briiiley, Francis Fitch, Ezekiel W. 
 Briggs, George N. Fowler, Samuel P. 
 Brown, Alpheus R. French, Charles H. 
 Brown, Artemas Gale, Luther 
 Buck, Asahel Gardner, Henry J. 
 Bullock, Rufus Gooch, Daniel W. 
 Bumpus, Cephas C. Gould, Robert 
 Cady, Henry Goulding, Dalton 
 Churchill, J. McKean Goulding, Jason 
 
 Morton, William S. 
 !JST<isli Hirjun 
 
 Wright, Ezekiel 
 
 Clark, Henry 
 Clarke, Stillman 
 
 Gray, John C. 
 Greenleaf, Simon 
 
 
 
 Cleverly, William 
 
 Hale, Artemas 
 
 "V AT"d 
 
 Coggin, Jacob 
 
 Hapgood, Lyman W. 
 
 JM A IB* 
 
 Cogswell, Nathaniel 
 
 Haskell, George 
 
 Adams, Benjamin P. 
 
 Bigelow, Jacob 
 
 Conkey, Ithamar 
 
 Haskins, William 
 
 Aldrich, P. Emory 
 
 Bradbury, Ebenezer 
 
 Cook, Charles E. 
 
 Hazewell, C. C. 
 
 Aspinwall, William 
 
 Brewster, Osymn 
 
 Cooledge, Henry F. 
 
 Heard, Charles 
 
 Barrows, Joseph 
 
 Carter, Timothy W. 
 
 Copeland, Benjamin F. 
 
 Henry, Samuel 
 
 Bartlett, Russel 
 
 Choate, Rufus 
 
 Cressy, Oliver S. 
 
 Hersey, Henry 
 
 Beebe, James M. 
 
 Crockett, George W. 
 
 Crowell, Seth 
 
 Hewes, James 
 
72d day.] 
 
 REVISED CONSTITUTION. 
 
 713 
 
 Monday,] 
 
 ABSENT COLE. 
 
 [August 1st. 
 
 Heywood, Levi 
 Hobart, Aaron 
 Hobbs, Edwin 
 Holder, Nathaniel 
 Hooper, Foster 
 Hopkinson, Thomas 
 Howard, Martin 
 Hubbard, William J. 
 Hunt, Charles E. 
 Huntington, Asahel 
 Huntington, Charles P. 
 Huntington, George H. 
 Jackson, Samuel 
 James, William 
 Johnson, John 
 Kellogg, Martin R. 
 Keyes, Edward L. 
 Kimball, Joseph 
 Kingman, Joseph 
 Kinsman, Henry W. 
 Knight, Jefferson 
 Knowlton, Charles L. 
 Kuhn, George H. 
 Lawrence, Luther 
 Lincoln, Abishai 
 Littlelield, Tristram 
 Loomis, E. Justin 
 Lord, Otis P. 
 Loud, Samuel P. 
 Lowell, John A. 
 Marcy, Laban 
 Marvin, Abijah P. 
 Meader, Reuben 
 Mixter, Samuel 
 Moore, James M. 
 Morss, Joseph B. 
 Newman, Charles 
 Nichols, William 
 Norton, Alfred 
 Noyes, Daniel 
 Ober, Joseph E. 
 Orne, Benjamin S. 
 Park, John G. 
 Parker, Joel 
 Parker, Samuel D. 
 Parsons, Samuel C. 
 Parsons, Thomas A. 
 Payson, Thomas E. 
 Peabody, George 
 Peabody, Nathaniel 
 Pease, Jeremiah, Jr. 
 Perkins, Jesse 
 
 Perkins, Jonathan C. 
 Phelps, Charles 
 Pomroy, Jeremiah 
 Prince, F. O. 
 Putnam, George 
 Rawson, Silas 
 Rockwell, Julius 
 Rockwood, Joseph M. 
 Sampson, George R. 
 Sanderson, Chester 
 Schouler, William 
 Sheldon, Luther 
 Sherman, Charles 
 Sprague, Melzar 
 Stacy, Eben H. 
 Stetson, Caleb 
 Stevens, Joseph L., Jr. 
 Stevens, William 
 Stevenson, J. Thomas 
 Storrow, Charles S. 
 Stutson, William 
 Sumner, Increase 
 Sumner, Charles 
 Swain, Alanson 
 Taber, Isaac C. 
 Talbot, Thomas 
 Taylor, Ralph 
 Thayer, Joseph 
 Thayer, Willard, 2d 
 Thomas, John W. 
 Thompson, Charles 
 Tilton, Horatio W. 
 Tower, Ephraim 
 Train, C. R. 
 Turner, David 
 Turner, David P. 
 Tyler, John S. 
 Upham, Charles W. 
 Upton, George B. 
 Viles, Joel 
 Walcott, Samuel B. 
 Wales, Bradford L. 
 Walker, Samuel 
 Ward, Andrew H. 
 Warner, Marshal 
 Warner, Samuel, Jr. 
 Wetmore, Thomas 
 Wheeler, William F. 
 Wilbur, Joseph 
 Wilkins, John H. 
 Wood, William H. 
 Woods, Josiah B. 
 
 Absent, and not voting, 188. 
 
 So proposition numbered " one " was passed. 
 
 Pending the call 
 
 Mr. COLE, of Cheshire, asked the indulgence 
 of the Convention to explain the reasons for the 
 vote which he gave. 
 
 [Many voices. " No ! " " No ! " " No ! "] 
 
 The PRESIDENT decided that leave could ^e 
 granted only by unanimous consent. 
 
 The first proposition having thus been disposed 
 of, the Secretary read the second proposition and 
 the provision of the Constitution to which it re 
 ferred, as follows : 
 
 48 3 
 
 II. The provision respecting the granting of 
 the writ of Habeas Corpus, as a proposition, num 
 bered "two." 
 
 If this proposition be ratified and adopted, it 
 shall be an addition to the provision respecting the 
 Habeas Corpus. 
 
 The following is the provision referred to : 
 
 The writ of habeas corpus shall be granted as of 
 right in all cases in which a discretion is not 
 especially conferred upon the court by the legis 
 lature; but the legislature may prescribe forms 
 of proceeding preliminary to the obtaining of the 
 writ. 
 
 The question was taken upon the final passage 
 of the second proposition, and there were, upon a 
 division ayes, 169 ; noes, 17. 
 
 So the proposition was passed. 
 
 The third proposition was next read, as fol 
 lows : 
 
 III. The provision respecting the rights of 
 juries in criminal trials, as a proposition, num 
 bered "three." 
 
 If this proposition be ratified and adopted, it 
 shall be an addition to the article in the Declara 
 tion of Rights, respecting the rights of persons 
 charged with crimes. 
 
 The following is the provision referred to : 
 
 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 laAV and the facts of the 
 case, but it shall be the duty of the court to su 
 perintend 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. 
 
 The question being upon the passage of the 
 third proposition it was put, and there were ayes, 
 149 ; noes, 56. 
 
 So the proposition was passed. 
 
 The fourth proposition was then read, as fol 
 lows : 
 
 IV. The provision respecting claims against 
 the Commonwealth, as a proposition, numbered 
 " four." 
 
 If this proposition be ratified and adopted, it 
 shall be an addition to Article XL, of the Decla 
 ration of Rights. 
 
 Proposition numbered " four," is as follows : 
 
 Every person having a claim against the Com 
 monwealth, ought to have a judicial remedy 
 therefor. 
 
 The question was then taken upon the passage 
 
14 
 
 REVISED CONSTITUTION. 
 
 [72d day. 
 
 Monday,] 
 
 DANA HALLETT. 
 
 [August 1st. 
 
 of the fourth proposition, and there were ayes, 
 183 ; noes, 6. 
 
 So the proposition was passed. 
 
 The fifth proposition was then read, as fol 
 lows : 
 
 V. The provision respecting imprisonment for 
 debt, as a proposition, numbered " five." 
 
 If this proposition be adopted, it shall be an 
 addition to the Article in the Declaration of 
 Rights, respecting excessive bail and fines. 
 
 The provision referred to, is as follows : 
 
 No person shall be imprisoned for any debt 
 hereafter contracted, unless in cases of fraud. 
 
 The question was taken upon the passage of 
 the fifth proposition, and there were ayes, 153 ; 
 noes, 16. 
 
 So the proposition was passed. 
 
 The sixth proposition was then read, as fol 
 lows : 
 
 YI. The provision respecting sectarian schools, 
 as a proposition, numbered " six." 
 
 If this proposition be ratified and adopted, it 
 shall be an addition to Article IV. of Chapter 
 XII., entitled, " The University at Cambridge, 
 The School Fund, and The Encouragement of 
 Literature." If proposition numbered " one " 
 shall not be adopted, it shall be added as an 
 amendment to the Constitution. 
 
 The provision referred to, is as follows : 
 
 All moneys raised by taxation in the towns and 
 cities, for the support of public schools, and all 
 moneys which may be appropriated by the State 
 for the support of common schools, shall be ap 
 plied to and expended in no other schools than 
 those which are conducted according to law, under 
 the order and superintendence of the authorities 
 of the town or city in which the money is to be 
 expended ; and such moneys shall never be ap 
 propriated to any religious sect, for the mainte 
 nance, exclusively, of its own schools. 
 
 Mr. DANA. Before the question is taken 
 upon the passage of the sixth proposition, I move 
 to amend it by striking out the word " it " in the 
 last clause, and inserting in lieu thereof, the 
 words, " number six." 
 
 The question was taken, and the motion was 
 agreed to. 
 
 Mr. HALLETT. I ask for the yeas and nays 
 upon the passage of the sixth proposition. 
 
 The yeas and nays were not ordered, one- fifth 
 of those voting, not voting therefor. 
 
 The question was then taken upon the passage 
 of the sixth proposition, and there were, upon a 
 division ayes, 159 ; noes, 24. 
 
 So the proposition was passed. 
 
 The PRESIDENT. The next proposition is 
 in the following words : 
 
 VII. The Legislature shall not create corpora 
 tions by special act, when the object of the incor 
 poration is attainable by general laws. 
 
 This proposition was adopted, without debate, 
 on a division ayes, 169 ; noes, 16. 
 
 The PRESIDENT. The next business before 
 the Convention is the eighth proposition. 
 
 The Secretary read the following, previous to 
 reading the proposition : 
 
 VIII. The provision respecting Banks and 
 Banking, as a proposition, numbered "eight." 
 
 If the propositions numbered " seven " and 
 "eight" be ratified and confirmed, they shall be 
 added as separate articles, or if either of them be 
 ratified and confirmed, as an article in Chapter 
 XIII., entitled "Miscellaneous Provisions." 
 
 If proposition numbered " one " be not rati 
 fied and confirmed, they shall be added as amend 
 ments to the Constitution." 
 
 The eighth proposition was then read, as fol 
 lows : 
 
 The Legislature shall have no power to pass 
 any act granting any special charter for banking 
 purposes, or any special act to increase the capi 
 tal stock of any chartered bank ; but corpora 
 tions may be formed for such purposes, or the 
 capital stock of chartered banks may be increased, 
 under general laws. 
 
 The Legislature shall provide by law for the 
 registry of all notes or bills authorized by general 
 laws to be issued or put in circulation as money ; 
 and shall require ample security for the redemp 
 tion of such notes, in specie. 
 
 The proposition was adopted, on a division 
 ayes, 153 ; noes, 36. 
 
 The question next recurred upon the second 
 resolution, which was read, as follows : 
 
 Resolved) That at the meetings for the election 
 of Governor, Senators, and Representatives to the 
 General Court, to be holden on the second Mon 
 day of November, in the year one thousand eight 
 hundred and fifty-three, the qualified voters of 
 the several towns and cities shall vote by ballot 
 upon each of the propositions aforesaid, for or 
 against the same, which ballots shall be inclosed 
 within sealed envelopes, according to the pro 
 visions of an Act of this Commonwealth, passed on 
 the twenty-second day of May, in the year eighteen 
 hundred and fifty-one, and an Act passed the 
 twentieth day of May, in the year eighteen hun 
 dred and fifty-two, and no ballots not so inclosed 
 shall be received. And said votes shall be re 
 ceived, sorted, counted, declared, and recorded, 
 in open meeting, in the same manner as is by 
 law provided in reference to votes for governor, 
 and a true copy of the record of said votes, at 
 tested by the selectmen and town clerk of each 
 of the several towns, and the mayor and alder 
 men and city clerk of each of the several cities, 
 
72d day.] 
 
 REVISED CONSTITUTION. 
 
 715 
 
 Monday,] 
 
 DANA FKO THIN GUAM KNOWLTON. 
 
 [August 1st. 
 
 shall be sealed up by said selectmen and mayor 
 and aldermen, and directed to the Secretary of 
 the Commonwealth, with a superscription ex 
 pressing the purport of the contents thereof, and 
 delivered to the sheriff of the county within fif 
 teen days after said meetings, to be by him trans 
 mitted to the secretary s office, on or before the 
 third Monday of December next; or, the said 
 selectmen and mayor and aldermen shall them 
 selves transmit the same to the secretary s office, 
 on or before the day last aforesaid. 
 
 The resolve was agreed to. 
 The question next recurred upon the third 
 resolution, which Avas read, as follows : 
 
 Resolved, That the Secretary shall deliver said 
 copies, so transmitted to him, to a Committee of 
 this Convention, consisting of 
 
 who shall assemble at the State 
 House, on the third Monday of December next, 
 and open the same, and examine and count the 
 votes so returned ; and if it shall appear that 
 either of said propositions has been adopted by a 
 majority of votes, then the proposition so adopted 
 shall become and be either the whole or a portion 
 of the Constitution of this Commonwealth, as 
 hereinbefore provided, and the said Committee 
 shall promulgate the results of said votes upon 
 each of said propositions, by causing the same to 
 be published in those newspapers in which the 
 laws are now published ; and shall also notify 
 the Governor and Legislature, as soon as may be, 
 of the said results ; and the Governor shall forth 
 with make public proclamation of the fact of the 
 adoption of either or all of said propositions, as 
 the whole or as parts of the Constitution of this 
 Commonwealth. 
 
 Mr. DANA moved to amend the resolution, 
 by providing that the blank be filled with the 
 name of the President of the Convention, and 
 the names of twenty other persons, whom he 
 should nominate. 
 
 The amendment was agreed to, and the ques 
 tion recurring on the passage of the resolve, as 
 amended, 
 
 The resolve was passed. 
 
 The question then recurred upon the fourth 
 resolution, which was read, as follows : 
 
 Resolved, That each of said propositions shall 
 be considered as a whole by itself, to be adopted 
 in the whole, or rejected in the whole. And 
 every voter may vote on each proposition, by its 
 appropriate number, without specifying in his 
 ballot any reference to the subject of the propo 
 sition, and by writing opposite to the number of 
 each proposition, the word Yes or No ; but the 
 vote on all of the propositions shall be written or 
 printed on one ballot, in substance as follows : 
 
 Constitutional Propositions. 
 Proposition No. I., . . Yes or No. 
 Proposition No. II., . . Yes or No. 
 Proposition No. III., . . Y"es or No. 
 And to Proposition No. VIII. , Yes or No. 
 
 Mr. FROTHINGHAM, of Charlestown. I 
 have an amendment to propose to this resolve ; 
 and without questioning the eminent ability 
 which has marked the course of the Committee 
 in reference to preparing their Report and doing 
 full justice to it, I yet think there may be an 
 amendment here which will perhaps relieve the 
 voters of considerable trouble at the polls. The 
 proposition as it now stands, states that 
 
 Every voter may vote on each proposition by 
 its appropriate number, without specifying in his 
 ballot any reference to the subject of the proposi 
 tion, and by writing opposite to the number of 
 each proposition the word Yes or No ; but the 
 vote on all of the propositions shall be written or 
 printed on one ballot, in substance as follows : 
 
 Constitutional Propositions. 
 
 Proposition No. I., . . Yes or No. 
 
 Proposition No. II., . . Yes or No. 
 
 Proposition No. III., . . Yes or No. 
 
 And to Proposition No. VIII., Y es or No. 
 
 Now, it seems to me that the ballot ought to 
 specify each proposition. These pamphlets which 
 we shall send out will, in all probability, be lost 
 before the people come to the polls ; and when 
 they are there the inquiry will be : " "What does 
 number one mean? what does number two 
 mean ? or what does number three mean : " 
 throughout the whole propositions. And then 
 again the object is to prepare the ballot ; and, 
 after all, the ballot will not be specific. "With 
 these few remarks, I submit the following amend 
 ment, which is to strike out all after the word 
 " whole," in the second line, and insert the fol 
 lowing : 
 
 Indicating on his ballot the subject of the prop 
 osition, and writing or printing the word Yes or 
 No opposite to each proposition. 
 
 Mr. KNO WLTON, of Worcester. As a mem 
 ber of the Committee on Revision, I give the 
 amendment of the gentleman from Charlestown 
 my support. I think it is plainer than the propo 
 sition of the Committee, and I hope it will be 
 adopted. 
 
 Mr. DANA, for Manchester. I was about to 
 suggest, when I yielded the floor to the gentle 
 man for Wilbraham, that it seems to me the 
 proposition of the gentleman from Charlestown is 
 a very proper one, and better than that which we 
 had submitted ; because, if the propositions were 
 only designated by numbers, a mistake in those 
 numbers, either from accident or design, would 
 frustrate the intentions of the voters ; but if we 
 have both the number and the indication of the 
 subject, there could be scarcely a possibility of 
 
716 
 
 REVISED CONSTITUTION. 
 
 [72d day. 
 
 Monday,] 
 
 HALLETT EARLE JENKS BOUTWELL STETSON MARVIN. [August 1st. 
 
 mistake. The amendment was submitted by the 
 gentleman from Charlestown to the chairman of 
 the Committee, and to some other members, be 
 fore he offered it, and I believe it met with gen 
 eral approbation. Perhaps it would be more 
 grammatical to say "in" than to say "and." 
 When a man votes, I do not suppose that any 
 inquiry will be made as to whether he wrote his 
 ballot, or whether his wife wrote it for him at 
 home, or whether it was printed. 
 
 Mr. HALLETT, for Wilbraham. It is just as 
 easy to express it in language that every-body 
 will understand, as it is to express it in doubtful 
 language. If the word "in" will perfect the 
 language, I move to substitute "in" instead of 
 " and," so that it shall read: "indicating on his 
 ballot the subject of the proposition in writing or 
 printing, opposite each proposition." 
 
 Mr. EAIILE, of Worcester. It appears to me, 
 that it is very well as it is ; and in answer to the 
 objection which has been raised by the gentleman 
 for Manchester and the gentleman for Wilbraham, 
 I can say that I do not suppose there will be any 
 difficulty about this matter. It is not presumed 
 that the voters are going to the polls, and to sit 
 down and write their ballots when they vote. 
 Unquestionably these propositions will all be 
 printed one set with yeas arid another set with 
 nays opposite to each proposition ; and then each 
 voter could select that which corresponds the 
 nearest to the way he wishes to vote, and alter it 
 to suit himself. If he votes "yes" on the ma- 
 joritv of the propositions, and there are two or 
 three which he does not like, he can take his 
 pencil and mark " no" opposite to them, erasing 
 the word " yes." I am in favor of the amend 
 ment as it now stands ; I think there will be no 
 difficulty arising from it. 
 
 Mr. JENKS, of Boston. This seems to me to 
 be merely a verbal dispute. It stands very well 
 as the gentleman for \Viibraham proposes it, and 
 it is much more plain and explicit. I presume 
 the meaning is, that each voter shall state by a 
 written or printed declaration ; and perhaps that 
 would be a good form in which to express it, in 
 stead of saying that he shall either write or print 
 it. 
 
 Mr. HALLETT. I should be sorry to have 
 tlus go out in a wrong form ; and I will farther 
 suggest that the word "stating" be substituted 
 for " indicating," so that it will read as folio ws : 
 
 And every voter shall vote on> each proposi 
 tion by its appropriate number, stating on his 
 ballot the subject of the proposition, in writing or 
 printing, and the word yes or no opposite to 
 each proposition. 
 
 The question being then taken on the amend 
 
 ment to the amendment, it was agreed to ; and 
 the amendment, as amended, was then adopted. 
 
 The resolve, as amended, was then agreed to. 
 
 The question was then stated on agreeing to 
 the fifth resolve : 
 
 Resolved, That a printed copy of these resolu 
 tions, with the several constitutional propositions 
 annexed, shall be attested by the Secretaries of 
 the Convention, and transmitted by them, as soon 
 as may be, to the selectmen of each town, and 
 the mayor and aldermen of each city, in the Com 
 monwealth, whose duty it shall be to insert a 
 proper article in reference to the A r oting upon said 
 propositions, in the warrant calling the meetings 
 aforesaid, on the second Monday of November 
 next. 
 
 Mr. BOUTWELL moved to amend by insert 
 ing after the words "attested by," the words 
 "the President and," so that it would read 
 " shall be attested by the President and Secreta 
 ries of the Convention," &c. 
 
 The amendment was agreed to. 
 
 Mr. STETSON, of Braintree. I should like 
 to ask the chairman of the Committee, if it is in 
 tended that the same plan shall be pursued in the 
 printing of the Constitution, which is pursued in 
 the printing of these copies that have been dis 
 tributed here. A part of this Constitution is set 
 in open type, a part in close type, and a part 
 in Italics. What I want is this : that in order 
 that the people may understand what part of the 
 Constitution is new and what part is old, it should 
 be printed with all that is new inserted in Italics, 
 and the old part in Roman. In that case, when it 
 goes out to the people, they will not have to study 
 and compare in order to find out what changes 
 the Convention have made. I move that the 
 Committee who have this matter in charge, direct 
 all the new portion to be printed in Italics. 
 
 Mr. BUTLER, of Lowell. I wish to inform 
 the gentleman from Braintree, that the new parts 
 are already differently printed from the old, so 
 that they can be very well distinguished. How 
 ever that may be, I had supposed that it was no 
 part of the duty of the Committee on Revision to 
 superintend the printing. 
 
 Mr. MARVIN, of Boston. I think some plan 
 should be adopted to carry out the view of the 
 gentleman from Braintree either that which he 
 has suggested, or, perhaps it may be well to have 
 the new portions of the Constitution enclosed in 
 brackets, as is frequently done in such cases. 
 Every man who knows anything about printing, 
 will agree with me in the opinion, that three- 
 quarters of the men in the Commonwealth would 
 not readily discern the difference between solid 
 and leaded matter I speak as a practical printer. 
 I think there should bo some obvious distinction 
 
72d day.] 
 
 REVISED CONSTITUTION. 
 
 717 
 
 Monday,] 
 
 EARLE BUTLER MARVIN STETSON WHITNEY DANA. [August 1st. 
 
 to the eye between what is new and what is 
 old. 
 
 Mr. EARLE. These suggestions may all be 
 very well, but I think we had better leave this to 
 be attended to by the Committee, and not take 
 any action on it now. 
 
 Mr. BUTLER. I beg leave to make a single 
 suggestion farther. I think those gentlemen who 
 have been instructing us so long, how much the 
 people are to be trusted, and throwing brickbats 
 at us for not trusting them, are putting them 
 selves to unnecessary trouble in inserting brackets 
 and Italics in order that the people may know 
 what this Convention have been doing. I have no 
 fear but that the people can find out where the 
 changes are, without having them put in Italics. 
 I believe in the people enough for that. 
 
 The question being taken, the resolve was 
 agreed to. 
 
 Mr. MARVIN. I move to instruct the Com 
 mittee, whose duty it is to provide for printing 
 the resolutions, that the several propositions an 
 nexed, which are new portions of the Constitution, 
 be printed in brackets. 
 
 Mr. STETSON. I trust that this Convention 
 will adopt the motion of the gentleman from Bos 
 ton, for this reason. I will venture to say that 
 no member of this Convention can tell in two 
 hours, what part of this revised Constitution is 
 old and what part is new ; and I believe, that 
 without any orders, the Committee who have had 
 this Constitution under revision, have made some 
 changes in regard to matters which have never 
 been under consideration by this Convention at 
 all. I think the people have a right to know 
 what portion of the Constitution which is sent 
 out to them for their sanction is new and what 
 portion is not ; and they never will know if they 
 have it printed in the way that this is. 
 
 Mr. WHITNEY, of Boylston, (interposing). 
 I understood the gentleman to say, that no mem 
 ber could find out in two hours what was new 
 and what was old. I wish to inquire if he is 
 going to make a statement to occupy that length 
 of time, in order that we can try the experiment. 
 [Laughter.] 
 
 Mr. STETSON. I can assure the gentleman 
 in the gallery that he has never seen me asleep in 
 this Convention, and he probably will not. I 
 take it, Mr. President, that the people have a 
 right to know precisely what alterations have 
 been made in the Constitution which we send 
 out to them, before they vote for its adoption. I 
 think, therefore, that it is no more than proper, 
 in sending out a proposition of so much import 
 ance as a new Constitution, that the people should 
 know how to distinguish between that which is 
 
 new and that which is old. I trust, Mr. Presi 
 dent, that this Convention will pass the resolution 
 of the gentleman from Boston, unless they mean 
 to deceive the people by putting a proposition 
 before them which they know that they cannot 
 understand. I do not want to throw bricks at a 
 man s head, or brick dust into his eyes so that he 
 cannot see. All that I ask is that the proposition 
 may go forth to the people in such a shape and 
 manner that they can understand it. I think that 
 if it should be printed in the form, in which this 
 has been printed for us here, there is not one man 
 in ten that could tell what he was voting on 
 whether a particular proposition was a part of the 
 old Constitution or whether it was something 
 new. I believe that the people of Massachusetts 
 are as well enlightened, and understand their 
 rights as well as the people of any other State in. 
 this Union. There is not a State which has a 
 more enlightened constituency than we have in 
 this Commonwealth ; but, Sir, I believe, notwith 
 standing that they are so intelligent they would 
 be apt to get puzzled with this document, printed 
 in this way ; for it requires a very astute man to 
 understand all that is new and all that is old in 
 this Constitution. 
 
 Mr. DANA, for Manchester. It is proposed, 
 as I understand it, that all the new parts of the 
 Constitution submitted to the people, shall be 
 printed in brackets to distinguish them from the 
 old Constitution. Now there will be one great 
 difficulty in that. Some amendments are merely 
 in the way of transposing words, some where the 
 same substance remains with very little variation 
 of form. The Committee found it necessary to 
 adopt three modes of printing common type, 
 leaded type, and brackets. I do not believe it 
 possible that by mere brackets amendments can 
 be sufficiently distinguished so as not to mislead 
 the people. 
 
 Another difficulty. If it shall be issued in the 
 form of brackets, we shall be held responsible for 
 their accuracy, for the people will rely upon them. 
 I should not like to trust to the accuracy with 
 which any person could do that work. It would 
 be a matter of difference of opinion what should 
 be placed in brackets, and how. I do not think 
 the gentleman from Braintree, (Mr. Stetson,) 
 really thinks the people have an inalienable right 
 to brackets. Will he permit me to ask him 
 whether it would not suit him to have a part in 
 crotchets ? [Laughter.] 
 
 Mr. KNO WLTON, of Worcester. I think 
 the proposition is susceptible of improvement. I 
 therefore move to strike out all after the word 
 " brackets," and insert in lieu thereof the words 
 " in such form as to distinguish, as far as possible, 
 
718 
 
 REVISED CONSTITUTION. 
 
 [72d day. 
 
 Monday,] 
 
 MARVIN HATHAWAY BOUTWELL LIVERMORE. 
 
 [August 1st. 
 
 the amendments from the text of the Constitu 
 tion." 
 
 Mr. MARVIN, of Boston. I accept the amend 
 ment. I take it that if the main amendments, 
 that is those which are entire paragraphs, are put 
 in brackets, and the less important alterations are 
 put in Italics, the amendments would be perfectly 
 obvious to every-body. I trust that the Commit 
 tee will take that course. 
 
 The question was then taken upon the motion 
 of Mr. Marvin, as modified by the motion of Mr. 
 Knowlton, and it was decided in the affirmative. 
 
 Mr. HATHAWAY, of Freetown. I desire to 
 call the attention of the Committee which reported 
 these resolutions, to the proposition made here in 
 reference to article second, chapter first, which is 
 as follows : 
 
 ART. 2. The political year shall begin on the 
 first Wednesday in January ; and the General 
 Court shall assemble every year on the said first 
 Wednesday in January, and shall be dissolved on 
 the day next preceding the first Wednesday in 
 January following, without any proclamation or 
 other act of the governor. But nothing herein 
 contained shall prevent the General Court from 
 assembling at such other times as they shall judge 
 necessary, or when called together by the gover 
 nor. 
 
 The last paragraph of that article was passed 
 over for the purpose of giving the Committee time 
 to make an examination of that matter, and giving 
 an answer to the inquiry which was made in ref 
 erence to it, and that was, whether the Convention 
 had passed upon that very proposition, and agreed 
 to have it stricken out. I should like to know 
 whether the Committee have satisfied themselves 
 in reference to that matter ? Can the Committee 
 answer now, whether the Convention have acted 
 upon it, and whether they have struck it out or 
 retained it ? 
 
 Mr. BOUTWELL, for Berlin. The Conven 
 tion have not passed upon it. It stands as it ever 
 has in the articles of amendment to the old Con 
 stitution. It was struck out of the original Con 
 stitution of 1780, but, by a provision inserted 
 with great care in the amendments, and which 
 annulled a part of the article with which this pro 
 vision was connected, and this provision was pre 
 served, and has not been acted upon by the Con 
 vention. There is nothing upon the record which 
 shows that it has been acted upon. 
 
 Mr. LIYERMORE, of Cambridge. A part 
 of the same words were struck out by a Report of 
 the Committee on the Frame of Government, or at 
 least they left out that part of it. The Report 
 was to substitute something for the article as it 
 then stood, and the part relating to the governor 
 having the power to call the legislature together, 
 
 was not stricken out. But the whole has been 
 inserted into this article, after the old article had 
 been amended, by striking out a part, and a new 
 article substituted for it. It was left out, but the 
 Revising Committee found it in another part of the 
 Constitution, and put it in here. 
 
 The PRESIDENT. It can only be reached 
 by a motion to reconsider. 
 
 Mr. LIVERMORE. I shall not make a mo 
 tion in regard to it. 
 
 Mr. BOUTWELL. The Committee on the 
 Frame of Government made no reference what 
 ever to that provision in the Constitution in which 
 this clause was found. No reference whatever. 
 
 The PRESIDENT. It appears that no amend 
 ment has been made in reference to this matter. 
 
 Mr. BOUTWELL. The Committee on the 
 subject of Revising the Amendments to the Con 
 stitution, were also charged with the matter of 
 preparing an Address to the people of the Com 
 monwealth ; and, with the consent of the Chair, 
 and of the Convention, I will read the Address 
 which the Committee has instructed me to report. 
 
 The Convention of Delegates, assembled by 
 your authority, and directed to revise the Consti 
 tution of the Commonwealth, has now closed its 
 labors ; and it seeks only to commend and com 
 mit the result to your consideration and final 
 judgment. The necessity for the Convention was 
 great, and its labors have been arduous and pro 
 tracted. As your delegates, we have sought for 
 the principles of freedom in the ancient institu 
 tions of the State ; but we have thought it wise 
 also to accept the teachings and experience of 
 nearly a century of independent existence. It has 
 then been our purpose to unite in one system of 
 organic law the principles of American republican 
 institutions, and the experiences of other free 
 States, all contemplated in the light derived from 
 the history and usages of Massachusetts. 
 
 And first of all, we think it proper to present for 
 your consideration 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 bv a careful and critical analysis and 
 comparison that the existing provisions can be 
 determined. This ought not to be. Constitu 
 tional laws should be plain, that they may be 
 impartially interpreted and faithfully executed 
 " that every man may at all times find his secu 
 rity in them." We have not, then, thought it 
 wise, or even proper, to preserve, as a part of the 
 Constitution, provisions which have long since 
 been annulled ; nor do we feel justified in pro 
 posing new specific amendments whose adoption 
 will render the fundamental law of the Common 
 wealth more difficult to be understood and less 
 certain in its requirements. 
 
 We have, therefore, taken what remains un 
 changed of the Constitution of 1780, and the 
 
72d day.] 
 
 REVISED CONSTITUTION. 
 
 719 
 
 Monday,] 
 
 ADDRESS. 
 
 [August 1st. 
 
 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 Conven 
 tion as are necessary to give to the whole, at once, 
 a comprehensive 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 complete system of organic law, 
 as one proposition, for your adoption and ratifica 
 tion. It is undoubtedly true, that when amend 
 ments are specific and not numerous, they should 
 be separately submitted to the judgment of the 
 people ; but this mode becomes impracticable in 
 the formation of a new government, or the thor 
 ough revision of an old one. Our attention has 
 been necessarily directed to every provision of the 
 Constitution, 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 Con 
 stitution as specific amendments, with the convic 
 tion that their ratification, would render your 
 form of government more complicated than it 
 now is, or else to embody all of the old and new 
 that appears necessary to the safe and harmonious 
 action of the system, and present it as " the Con 
 stitution of Massachusetts." 
 
 This we now do, and we invite you to consider 
 that, while government is essential to the safety 
 and happiness of each individual, it must neces 
 sarily happen that it cannot be in every part alike 
 acceptable to all. " We may not expect," said 
 the founders of the Commonwealth, " to agree in 
 a perfect system of government ; this is not the 
 lot of mankind. The great end of government is 
 to promote the supreme good of human society." 
 We commend the new Constitution to you, not 
 as being perfect, but as greatly to be preferred to 
 the existing frame of government. It declares 
 the rights and liberties essential to the freedom of 
 the people ; it contains, as we believe, a frame 
 work arranged according to reason and correct 
 analogies, and it embodies all the fundamental 
 provisions necessary to a just administration of 
 every department of the government. 
 
 You will naturally examine with care the char 
 acter of the changes we have proposed. We have 
 thought it necessary to make a provision for the 
 purpose of limiting the sessions of the General 
 Court to one hundred days, and to require that 
 the pay of its members shall be fixed by standing 
 laws. 
 
 At present the members of the Senate are cho 
 sen by the several counties which elect from one 
 to six senators, upon a general ticket. We have 
 provided for the division of the State into forty 
 districts, of equal population, and each entitled to 
 elect one senator. 
 
 The basis of the House of Representatives has 
 been a subject of careful and anxious deliberation. 
 Differences of opinion existed among us ; but a 
 majority of more than one hundred members de 
 termined to preserve the system of town repre 
 sentation, under which Massachusetts has existed 
 so long and prospered so well. We have, then, 
 based the House of Representatives upon the mu 
 nicipal institutions of the State, having reference, 
 
 so far as practicable, to their relative population. 
 By the proposed system, towns containing less 
 than one thousand inhabitants are entitled to 
 elect a representative for the year when the valu 
 ation of estates is settled, and one in addition, 
 annually, for five years out of every decennial 
 period. Towns having a population of one thou 
 sand and not more than four thousand inhabit 
 ants, are entitled to elect a representative every 
 year ; towns of more than four thousand and less 
 than eight thousand, will elect two representa 
 tives ; towns of eight thousand and less than 
 twelve thousand, will elect three representatives, 
 while towns and cities of twelve thousand inhab 
 itants, will elect four representatives, and one 
 additional representative for each addition of four 
 thousand to their population. We do not claim, 
 that this system, separately considered, is pre 
 cisely equal ; but if it is in some degree favorable 
 to the rural districts, the loss sustained by the 
 large towns and cities is in a fair measure com 
 pensated by the manifest advantages accorded to 
 them in the constitution of the Council and the 
 Senate. The inequality of representation between 
 particular towns, when tested solely by popula 
 tion, may in some cases apparently be great ; but 
 when the rights of different interests and different 
 sections of the Commonwealth are considered in 
 connection with the whole system of elective 
 government, the basis of the House cannot be 
 deemed unequal or unjust. The Senate and 
 Council are based upon population rather than 
 voters, by which the inhabitants of the cities and 
 large towns have influence in these two important 
 departments of the government quite dispropor 
 tionate to their just elective power. 
 
 No human government can attain to theoretic 
 accuracy ; and in a state where pursuits, habits, 
 and interests are various, it certainly is not the 
 part of wisdom to place unlimited power in the 
 hands of any. We invite you to consider that the 
 Governor represents the voters of the State ; that 
 the Council and Senate represent population,with- 
 o\\t any reference to voters, and as a consequence, 
 that these two departments 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 
 agricultural and mechanical population and inter 
 ests a reasonable share of power in one branch of 
 the Legislature. This influence gives to this por 
 tion of the people power to assent to, but never to 
 dictate, the policy of the government. The Con 
 vention of 1780 declared that "an exact repre 
 sentation would be impracticable even in a system 
 of government arising from the state of nature, 
 and much more so in a State already divided into 
 nearly three hundred corporations." We have 
 encountered the same difficulty, and hope that we 
 have overcome it in our day as well as they over 
 came it in their day. 
 
 But our deliberations have not been confined 
 to the proposed system. 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 voters in each. In 
 this opinion a large majority of the Convention 
 do not concur ; but we think it our duty first to 
 
720 
 
 REVISED CONSTITUTION. 
 
 [72d day. 
 
 Monday,] 
 
 ADDRESS. 
 
 [August 1st. 
 
 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 practi 
 cable. We have, therefore, made a constitutional 
 provision 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. 
 
 We have also provided that the cities and large 
 towns shall be so districted for the choice of rep 
 resentatives that no district shall be entitled to 
 elect more than three members. In the judg 
 ment of the Convention the election of many 
 officers on a single general ticket is not compati 
 ble with the freedom and purity of the represen 
 tative system. 
 
 The property qualification of the Governor and 
 Lieutenant- Governor has been abolished. 
 
 The Council has been made elective by the 
 people in single districts, and the records of that 
 body are hereafter to be subject to public exami 
 nation. 
 
 We have provided that the Attorney- General, 
 the Secretary of the Commonwealth, the Auditor 
 and the Treasurer, officers now appointed by the 
 Governor, or chosen by the Legislature, shall 
 hereafter be elected annually by the people ; and 
 that the Judges of Probate, Registers of Probate, 
 Sheriffs, Clerks of the Courts, Commissioners of 
 Insolvency, and District- Attorneys, officers now 
 appointed by the Executive or the Courts, shall 
 also be elected by the people for terms of three 
 years. 
 
 We have also provided that the Justices of the 
 Supreme Judicial Court and of the Court of 
 Common Pleas, hereafter appointed, shall hold 
 their offices for the term of ten years. In a free 
 government, the people should be relieved in a 
 reasonable time, and by the ordinary course of 
 affairs, from the weight of incompetent or un 
 faithful public servants. Under the present Con 
 stitution 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 re 
 tained in the public service ; while those whose 
 places can be better filled with other men, will 
 retire to private life without violence or ungra 
 cious circumstances, and scarcely with observation. 
 
 It is proposed that Justices of the Peace shall 
 be divided into two classes. Those whose duties 
 are chiefly ministerial, will be, as heretofore, ap 
 pointed by the Governor and Council ; while 
 those intrusted with judicial authority are to be 
 elected by the people and to hold by a tenure of 
 three years. 
 
 Under the original Constitution, voters and 
 public officers were required to possess property 
 qualifications. These have heretofore been re 
 moved in part, and we now recommend the entire 
 abolition of the property qualification in the voter 
 for all national and all state officers mentioned in 
 the Constitution. The obligations of citizens to 
 
 contribute to the public expenses by assessment 
 of taxes are not in any degree changed. 
 
 Provision is also made for the secrecy of the 
 ballot. By the ballot the citizen at the same 
 time declares his opinion on public affairs, and 
 asserts his equality with every other citizen. 
 
 Freedom of opinion, and freedom in the ex 
 pression of opinion, are individual rights, to be lim 
 ited or controlled only by a public necessity. We 
 see no public necessity which ought to deprive 
 the citizen of these rights, and we have therefore 
 made provision for their protection. 
 
 We also provide, absolutely, that in many elec 
 tions, persons having the highest number of votes 
 shall be chosen. This rule has been applied prin 
 cipally to the elections in counties and districts, 
 where the trouble of frequent trials is great. 
 The Governor, Lieutenant- Govern or, Secretary 
 of the Commonwealth, Attorney- General, Treas 
 urer, Auditor, Representatives to the General 
 Court, and town officers, are exceptions to the 
 rule. In case of a failure to elect either of the 
 first six named, the election is referred to the 
 General Court ; while subsequent trials may be 
 had for the choice of Representatives and munici 
 pal officers. We have, therefore, as we think, 
 retained the majority rule where its application 
 will be least burdensome to the people. At the 
 same time we have provided that the Legislature 
 may substitute 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 after its passage. Thus we have given an 
 opportunity to test the wisdom 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. 
 
 The various provisions relating to the militia 
 have been revised, some important changes have 
 been made, and that department of the govern 
 ment will rest more firmly than ever on a consti 
 tutional basis. 
 
 Changes are proposed concerning the University 
 at Cambridge, and the General Court is instruct 
 ed to take means for the enlargement of the school 
 fund, until it shall amount to a sum not less than 
 two millions of dollars. 
 
 Although the Constitution has always asserted, 
 in the strongest terms, the right of the people, at 
 all times, to alter, reform, or totally change their 
 frame of government, yet it has been contended 
 by some, that the operation and effect of the spe 
 cific provisions for amendments, contained there 
 in, have been such as practically to impair or 
 render doubtful this great right. We ha^e, there 
 fore, thought it wise, while we recognize and 
 retain the modes of exercising the right practised 
 hitherto in this Commonwealth, to introduce ad 
 ditional provisions, to meet possible future exi 
 gencies, and to enable the people, without contro 
 versy, to hold periodical Conventions that shall 
 not be subject to, or restricted by, any previous 
 or subsequent act of the Legislature. 
 
 Trusting that you will examine with care the 
 proceedings of the Convention, and the result to 
 which it has come, we deem it unnecessary to 
 
72d day.] 
 
 REVISED CONSTITUTION, &c. 
 
 721 
 
 Monday,] 
 
 HALLETT BUTLER BIRD WEEKS CUSHMAN. 
 
 [August 1st. 
 
 explain several less prominent changes proposed 
 in the Constitution of the Commonwealth. 
 
 We also submit seven distinct amendments, 
 which are presented separately for your ratifica 
 tion. Some of them are new, and all of them 
 are independent of the frame- work of the govern 
 ment, and may either be adopted or rejected with 
 out disturbing the system or harmony of the 
 Constitution. They have all, however, been sus 
 tained by decisive majorities of your delegates, 
 and embrace important essential principles in 
 popular government. The formation or the re 
 vision of a popular constitution is an epoch in 
 the history of a free people. 
 
 We are sensible of the magnitude of the trust 
 which you have confided to us, but it is not more 
 important than the just decision of the question 
 which we submit to you. We have no doubt 
 that your decision will secure a result beneficial 
 to Massachusetts, and, under Divine Providence, 
 will render more and more illustrious our ancient 
 Common wealth . 
 
 The question w r as then taken upon adopting 
 the Address, and it was agreed to without a di 
 vision. 
 
 Mr. HALLETT, for Wilbraham. I move that 
 the Address which has been read and accepted by 
 the Convention, be signed by the President and 
 Secretary of the Convention, and published. 
 
 Mr. BUTLER, of Lowell. Will the gentle 
 man for Wilbraham allow me to suggest an 
 amendment to his motion. In addition to the 
 printing, I suggest that the same number be 
 printed as we have ordered of the Revised Con 
 stitution, and that it be circulated among the 
 people that is 100,000 copies and bound with 
 them. 
 
 Mr. HALLETT. I presume the Address, under 
 that resolution, would be published in connec 
 tion with the Constitution. 
 
 Mr. BIRD, of Walpole. I will read an order 
 which I have drawn up, which covers that mat 
 ter, and also another matter : 
 
 Ordered, That the Resolves contained in docu 
 ment No. 128, and the Address to the People, 
 signed by the President and the Secretary, be 
 printed in connection with copies of the Revised 
 Constitution ordered to be printed for distribu 
 tion ; and that 35,000 additional copies of said 
 Constitution, with the Resolves and Address, be 
 printed for distribution in accordance with orders 
 already adopted. 
 
 The latter clause of the order is a distinct sub 
 ject, and it is for this reason, that since the pas 
 sage of the resolve ordering the printing- of 
 100,000 copies, we learn that last winter the 
 legislature ordered the printing of 100,000 copies 
 of the old Constitution, and it was found by them, 
 after distributing the 100,000 copies, they were 
 35,000 copies short, and they were obliged to 
 
 order that number of copies more, costing about 
 as much as the original edition of 100,000 copies. 
 It was thought best, therefore, to order that the 
 same number of the new Constitution should be 
 printed. It will be cheaper to do so now than 
 hereafter. 
 
 Mr. WEEKS, of Harwich. Where did the 
 gentleman get his information. 
 
 Mr. BIRD. From the printer, the sergeant- 
 at-arms, and others. 
 
 Mr. WEEKS. I had the honor to offer the 
 resolution myself, and it provided for 30,000 
 copies. 
 
 Mr. BIRD. Then there were 130,000 copies, 
 in all, ordered. 
 
 The PRESIDENT. The Chair would suggest 
 that the question can be first taken upon signing 
 the Address, and then upon the other matter. 
 
 Mr. HALLETT, for Wilbraham. I so modify 
 my motion. 
 
 The question was then taken upon Mr. Hal- 
 lett s motion, and it was agreed to. 
 
 The question was then taken upon the motion 
 offered by Mr. Bird, and it was decided in the 
 affirmative. 
 
 So the motion was agreed to. 
 
 Pay Roll. 
 
 Mr. CUSHMAN, of Bernardston. I now 
 move that the resolve for the payment of mem 
 bers be taken from the table and acted upon. 
 
 The question was taken, and the motion was 
 agreed to. 
 
 The Report of the Committee on the Pay Roll 
 was then taken up, and read by the Secretary, as 
 follows : 
 
 COMMONWEALTH OF MASSACHUSETTS. 
 
 In Convention, August 1, 1853. 
 The Committee on the Pay Roll, in compliance 
 with an order of the Convention, directing them 
 to make up the pay roll, have attended to that 
 duty, in accordance with a resolve passed on the 
 28th day of June last, and report the sum here 
 with, amounting to $114,092, and also report the 
 acccompanying order. 
 
 For the Committee, 
 
 ISAAC LIVERMORE, Chairman. 
 
 Ordered, That the Pay Roll of the Convention, 
 as reported by the Committee, in accordance with 
 the resolve of the 28th of June last, and the order 
 of July 29th, be transmitted by the Secretary, to 
 the Auditor of Accounts, and that he be requested 
 to obtain from the Governor a warrant upon the 
 treasury of the Commonwealth, to authorize the 
 payment thereof, and notify the Convention when 
 the warrant has been drawn. 
 
722 
 
 DISTRIBUTION OF DOCUMENTS. 
 
 [72d day. 
 
 Monday,] 
 
 GREENE WALKER LIVERMORE BATES LELAND. 
 
 [August 1st. 
 
 Mr. GREENE, of Brookfield. At the proper 
 time I should like to hear the pay roll read. It 
 must prove an interesting document. 
 
 The question was taken upon the acceptance 
 and adoption of the Report of the Committee, and 
 it was decided in the affirmative. 
 
 Distribution of Documents. 
 
 Mr. WALKER, of North Brookfield. I move 
 that the Report of the Special Committee on the 
 distribution of documents, be taken up at the 
 present time. 
 
 Mr. GREENE. Before that matter is gone 
 into, I should like to hear the pay roll read. But 
 if the Convention does not want to hear it, I will 
 not urge the matter. 
 
 The PRESIDENT. The Chair is of opinion 
 that it would not be in order to do so at this time. 
 
 Mr. LIVERMORE, from Cambridge. I would 
 suggest the course indicated by the gentleman 
 from Worcester, (Mr. Earle,) that it be read by 
 its title. [Laughter.] 
 
 The question was then taken on Mr. Walker s 
 motion, and it was agreed to. 
 
 The Secretary then read the Report, as fol 
 lows : 
 
 1. Resolved, That White & Potter be instructed 
 to deliver, without additional charge, the remain 
 ing numbers of the quarto edition of the Jour 
 nal of Debates, at such places in Boston, as the 
 members shall respectively order. 
 
 2. Resolved, That each member of this Conven 
 tion be furnished with one copy of the Journal 
 of the Debates, of the octavo edition, additionally 
 to the one heretofore ordered. 
 
 3. Resolved, That the Messenger be directed to 
 deliver, without additional cost, the copies of the 
 Debates aforesaid, together with the Journal of 
 the Convention, heretofore ordered, with the com 
 pleted file of the documents belonging to each 
 member, at such place in Boston as the members 
 shall respectively order. And also to send, in 
 the usual manner, the copies of the Journal and 
 Debates to the towns, cities, and public bodies, as 
 ordered by the Convention, and also to send to 
 each town or city, its quota, in proportion to pop 
 ulation, of copies of the New Constitution, here 
 tofore ordered to be published. 
 
 The PRESIDENT. To that Report the gen 
 tleman from Worcester, (Mr. Earle,) moves to 
 add the following words : " That no member 
 shall be entitled to more than three copies." 
 
 Mr. BATES, of Plymouth. Before the Con 
 vention in this stage of its session pass a vote to 
 give each member of the Convention three copies, 
 amounting to fifteen or eighteen dollars to each 
 member, I hope they will stop and look at it. 
 Besides that, it enjoins upon these persons to do 
 certain work, without pay hereafter. I suppose 
 
 by the Act calling this Convention, the Conven 
 tion is to provide its own expenses. They have 
 no more authority to order this Messenger to do 
 any work without pay, than we have to order 
 the Governor to do so. 
 
 Mr. WALKER, of North Brookfield. It has 
 been my misfortune on several occasions, while 
 acting as chairman of a Committee, to present 
 reports, with some of the propositions of which I 
 did not agree. That is the case in the present 
 instance. The Report was almost unanimously 
 adopted in Committee, though I dissented from 
 the second resolve which provides that three 
 copies of the octavo edition shall be furnished 
 to members in addition to what they already 
 have. I presume that the resolve introduced at 
 the beginning of the session by the gentleman from 
 Cambridge, was a mistake, because under the 
 resolve, it would have required nine thousand 
 copies of the Debates to supply all the members, 
 if they had elected to take as many as they were 
 entitled to under that order. That being the case, 
 we are brought into the condition in which we 
 now are, with one hundred members of this Con 
 vention without a copy of the quarto edition, 
 and this second resolve says that all alike shall 
 receive three copies of the quarto edition. That 
 did not strike me as just. It seemed to me that 
 those who had taken more of the other, should 
 have but one copy of the quarto form. I think 
 the operation of that second resolve would not 
 look well under the circumstances which sur 
 round the case, and therefore, I hope the amend 
 ment will prevail. Otherwise, the Report is cor 
 rect in every respect, in my judgment. 
 
 In regard to the duties which we impose upon 
 the Messenger, I will say that we waited upon 
 him upon the subject, and he consented to per 
 form all those duties. The duties must be per 
 formed by somebody, or else the documents will 
 not be distributed. 
 
 Mr. LELAND, of Holliston. When this sub 
 ject was under discussion on a former occasion, 
 the gentleman from Worcester, (Mr. Earle,) said 
 that I had received twenty-one copies. 
 
 Mr. EARLE, of Worcester. I rise to call the 
 gentleman to order for misstating what I said. 
 I made no such statement. 
 
 Mr. LELAND. I do not know what point of 
 order there is in that. All I can say is, that I 
 understood the gentleman to say, at the time 
 referred to, that I had received twenty- one copies, 
 and that I now wanted three copies more. I did 
 say that I thought it but fair that if one member 
 was to receive three copies of the bound Reports, 
 it was but fair that all should receive them. 
 
 Mr. BATES, of Plymouth. The Convention, 
 
72d day.] 
 
 DISTRIBUTION OF DOCUMENTS. 
 
 723 
 
 Monday,] 
 
 EARLE BATES ALVORD BIRD UNDERWOOD ADAMS. 
 
 [August 1st. 
 
 by two several orders, have directed what should 
 be done with every copy. If the Convention 
 passes this resolve, they must direct the Commit 
 tee what to do, and make all needful provisions 
 to enable them to do it. 
 
 Mr. EARLE. My proposition does not enlarge 
 the distribution, but restricts it. By an order of 
 the Convention, the members were entitled to 
 receive a certain number of copies of these Reports. 
 Three-fourths of the members have received them, 
 while the other fourth have not got any, and it is 
 imperative upon the Secretary to furnish them. 
 This amendment proposes to limit the distribution 
 to three copies to each member, including the one 
 copy which all the members are to receive. So 
 that the members will get but two copies as an 
 offset to the twenty- one copies the other members 
 have already got. If they have not got them they 
 have got their equivalent in newspapers. It ap 
 pears to me that there is nothing but what is per 
 fectly fair in this proposition. I did not suppose 
 that there was a man in the Convention who 
 would raise a voice against it. 
 
 Mr. BATES. I move that when the question 
 is taken it be taken by yeas and nays. 
 
 Mr. ALVORD, for Montague. I move that 
 the whole subject be indefinitely postponed. 
 
 Mr. BIRD, of Walpole. Gentlemen ought to 
 remember that there is a great deal more to do 
 than the mere distribution of these Reports. But 
 I believe that both the Messenger and the State 
 printer agree to do this work without any extra 
 pay, and I think, therefore, that no question 
 ought to be raised on that head. 
 
 Mr. ALVORD. I listened attentively to the 
 reading of the resolves, and I understood them 
 merely to refer to the distribution of the Reports. 
 If the Messenger is willing to do this work with 
 out any extra pay, I can have no possible objec 
 tion. 
 
 Mr. UNDERWOOD. I am not well pleased, 
 either with the Report of the Committee or the 
 amendment. If I understood the latter, it pro 
 poses to give three copies of the bound Reports to 
 each member. 
 
 Mr. EARLE. Only to those who have not 
 already got any copies. 
 
 Mr. ADAMS, of Lowell. I understand that 
 at an early period of the session many members 
 of the Convention availed themselves of the privi 
 lege of the order presented by the gentleman from 
 Cambridge, and passed by the Convention, of 
 taking two, three, or half a dozen copies. I 
 understood the proposition of the gentleman from 
 Worcester to be that those who had received three 
 or six copies of the quarto form, were not to re 
 ceive any of the octavo. I understand that the 
 
 Debates as circulated in the quarto form, without 
 binding, are to cost $1.50 per copy, and that the 
 bound octavo volumes will cost $5 per copy, and 
 that those who have not subscribed for the quarto 
 copies will be entitled to $15 worth of the octavo. 
 
 Mr. EARLE. The statement that has just 
 been made is calculated to deceive. In fact there 
 is no truth in it. [Loud cries of " Order, Order."] 
 I do not mean to say that the statement is not 
 true, as the gentleman made it, [laughter,] but 
 that in point of fact, there is no truth in it. [Cries 
 of " Order, Order."] The State printers have 
 stated the matter to me thus : The whole amount 
 of type setting they have charged, in making up 
 their account, upon the octavo form, and have 
 charged nothing for composition upon the quarto. 
 That makes the octavo form nominally cost a 
 good deal more. If there is any difference it is 
 in favor of the octavo form. But there is no dif 
 ference about it. The composition is the same 
 and the press work is the same. 
 
 Now I understand that even if this order is 
 adopted, the State will still have fifteen hundred 
 volumes, or more, left at the disposal of the legisla 
 ture. That body will probably place them at the 
 disposal of the governor and council, who, again, 
 will probably distribute them amongst their 
 friends. 
 
 [Loud cries of " Question, Question."] 
 
 Mr. DAVIS, of Worcester. By this order, if it is 
 amended as proposed by my colleague, and adopt 
 ed by the Convention, every member will receive 
 one copy of the bound Reports, andn one can re 
 ceive more than three copies. 
 
 Mr. UNDERWOOD. I would like to know 
 how you are going to get back the copies from 
 those who have got their twenty copies ? 
 
 Mr. EARLE. The order relates only to the 
 octavo edition. 
 
 The question was then taken on the amend 
 ment, and it was rejected, on a division ayes, 
 107 ; noes, G7. 
 
 Mr. BATES, of Plymouth. I wish simply to 
 state one fact in this connection. Each member 
 has voted himself one copy already, of the octavo 
 edition that is upon the journal and now it is 
 proposed to give each member two copies more, 
 as the motion is that the number shall not exceed 
 three copies ; so that if this passes, each member 
 will have voted himself three copies, or six vol 
 umes, amounting to fifteen dollars in value, 
 which will be rung from one end of Massachu 
 setts to the other. 
 
 Mr. EARLE. If there is any apprehension 
 that members by that vote are depriving them- 
 elves of one copy, it is very easy to add the 
 words, " under this order." 
 
724 
 
 DISTRIBUTION OF DOCUMENTS, dec. 
 
 [72d day. 
 
 Monday,] 
 
 HALLETT CARRUTHERS PAIGE CHAPIN EARLE STETSON. [August 1st. 
 
 Mr. HALLETT, for Wilbraham. Is the ques 
 tion susceptible of division ? 
 
 The PRESIDENT. The Chair is of opinion 
 that the question on the several resolves may be 
 taken separately. 
 
 Mr. HALLETT. Then I call for a division. 
 I want that part which relates to voting three 
 copies, put separately. We have each got one 
 copy, and I think we ought to be satisfied with 
 that. 
 
 Mr. CARRUTHERS, of Salisbury. I wish to 
 ask a question, in order to obtain a little informa 
 tion about this matter. If a delegate has sub 
 scribed for, and received his twenty- one news 
 papers, he is to have three copies of the Reports, 
 as I understand it ; but if he has only subscribed 
 for fifteen newspapers, and has made up the re 
 mainder with documents, is he not to have any 
 extra ? I want to have that matter plainly under 
 stood, whether we are going to vote three copies 
 to those who have had their twenty- one news 
 papers, and are not to vote any copies to those 
 who have had no newspapers. 
 
 Mr. PAIGE, of Boston. As I am one of those 
 who have not subscribed for newspapers, I may 
 perhaps vote on this subject with as good grace 
 as anybody. I understand that we have already 
 voted one copy to each member that each mem 
 ber should have one copy of the octavo edition, 
 and that should be the end of it, whether he had 
 received newspapers or not. If a man has had 
 twenty- one copies already, which he has taken in 
 the place of newspapers, he had a right so to do ; 
 and I see no difficulty in putting the proposition 
 fairly. We have already voted to give each 
 member one copy in the octavo form my propo 
 sition is to give each member one more, so that 
 each member shall have two copies, whether he 
 has had newspapers or not. We cannot go back 
 and undo what has already been done. 
 
 Mr. CHAPIN, of Worcester. I like the 
 amendment which has been offered by the gentle 
 man from Boston. Some persons were not quite 
 so keenly anxious as others for these Reports, 
 and subscribed for newspapers, while others 
 thought that they would take these instead of 
 newspapers. Some members were "green" 
 enough not to see this until after they had sub 
 scribed for their newspapers ; and those who were 
 sharper than the rest of us, will of course have 
 the profit of it. 
 
 Mr. EARLE. I have not made the motion 
 which I did, because I cared about having a copy 
 of this work in addition to the copy to which I 
 am already entitled ; but I did so simply to see 
 if the Convention would do an act of justice. I 
 wanted to see if those members who had received 
 
 their copies of the work under a vote of this 
 Convention, would now allow those who were 
 entitled under the same vote to other copies but 
 who could not obtain them, to have partial jus 
 tice done to them whether they would not be 
 willing to furnish the Secretary with the means 
 of carrying out in part, their own vote. If they 
 are not disposed to do that, I, for one, shall vote 
 against the amendment proposed by the gentle 
 man from Boston ; for that, instead of doing 
 justice, is giving to those who have not received 
 anything, only just as much as it gives to those 
 who have already received from ten to twenty 
 copies. 
 
 Mr. OLIVER, of Lawrence, moved the previ 
 ous question, which was ordered. 
 
 The question being taken on the amendment 
 of Mr. Paige, it was agreed to ; and the question 
 was then stated on ordering the resolves to a 
 second reading, as amended. 
 
 Mr. EARLE asked for a division of the ques 
 tion ; and the question being put on ordering the 
 first and third resolves to a second reading, it 
 was agreed to. 
 
 The question then recurred on ordering the 
 second resolve to a second reading ; which resolve 
 provided that each member of the Convention 
 should be furnished with an additional copy of 
 the octavo edition. 
 
 Mr. BOUT WELL, for Berlin, moved that the 
 resolve lie upon the table, which was not agreed to. 
 
 The question then being taken, the resolve was 
 ordered to a second reading. 
 
 Rights of Colored Citizens. 
 
 Mr. STETSON, of Braintree, moved a recon 
 sideration of the vote by which the Convention 
 ordered the protest of William C. Nell and oth 
 ers to be entered upon the journal of the Con 
 vention. 
 
 The PRESIDENT. The motion lies over 
 until to-morrow, under the rule. [Laughter.] 
 
 Mr. STETSON. I move a suspension of the 
 rule. 
 
 Mr. HALLETT, for Wilbraham. I rise to a 
 question of privilege, in regard to this matter. I 
 should not, on my own account or interest have 
 called up the subject which the gentleman from 
 Braintree has moved to reconsider ; but it being 
 presented, I think it my duty to refer to this pro 
 test, because I suppose that it was intended to 
 bear upon myself, and others much more dis 
 tinguished gentlemen than myself 
 
 Mr. BIRD, of Walpole. Mr. President, I rise 
 to a question of order. The point which I make 
 is, that the gentleman must state his question of 
 privilege, before he speaks upon it. 
 
72d day.] 
 
 RIGHTS OF COLORED CITIZENS. 
 
 725 
 
 Monday,] 
 
 HA.LIETT BIRD BUTLER. 
 
 [August 1st. 
 
 Mr. HALLETT. That is just what I am 
 doing. The Convention have ordered to be 
 entered upon the journal of this body, a state 
 ment in the form of a protest, which places some 
 of the members of the Convention in a false 
 position, and attributes language to them which 
 they did not utter. I take it that that is a ques 
 tion of privilege. 
 
 Mr. BIRD. I ask for the ruling of the Chair 
 upon that point. 
 
 Mr. HALLETT. Certain statements were 
 made upon this floor in debate with regard to the 
 admission of colored persons into the militia of 
 the United States, and I find that in a protest 
 which has been received and acted on while I was 
 absent, there is a statement manifestly, though 
 not by name, attributed to me, which I never 
 made. The Convention, I presume, without 
 understanding the matter at the moment, by a 
 party vote, ordered that statement to go upon its 
 records. It is wholly immaterial to me whether 
 the Convention choose to persist in that course or 
 not, as respects myself; but before the question 
 is decided, I want it fully understood that the 
 protest which they have ordered to be entered 
 upon their journal contains intimations against 
 two of the members of this body ; I want the 
 Convention also to know what they are charged 
 with as a body, in that protest, so that they may 
 knowingly decide whether they are ready to cause 
 to be placed upon their records a statement that 
 they have done an act which is unconstitutional, 
 and also that in their opinion, a law of the United 
 States is imconstitutional. That protest farther 
 says, among other things, that a member of this 
 Convention, in a speech made to this Convention, 
 declared that if a colored person were to be elected 
 governor of Massachusetts, the United States 
 would interpose to prevent his acting as com- 
 mander-in-chief of the Commonwealth. Now, 
 Sir, 110 such thing was said by any member, and 
 I do not want that class of our fellow- citizens, 
 who very honestly, I dare say, make this protest, 
 and whose rights I respect as much as any body, 
 to labor under a misapprehension on that subject, 
 for I have no doubt they were misled by some 
 false report. I said all that was directly said upon 
 that topic except the similar opinion given by the 
 member from Boston, (Mr. Choate,) and what I 
 did say was precisely this 
 
 Mr. BIRD, (interposing). Mr. President: 
 This discussion is entirely out of place at this 
 time, for the gentleman from Wilbraham is not 
 alluded to by name, or in any way that would 
 lead any one to suppose he was alluded to at all, 
 in that document. 
 
 The PRESIDENT. The Chair will take the 
 
 liberty to state that as this is the last day of the 
 session, and the motion for reconsideration must 
 be entertained now or it never can be entertained, 
 the Chair will admit the motion without putting 
 the question on a suspension of the rules. The 
 question is, therefore, upon the motion of the 
 gentleman from Braintree that the vote of the 
 Convention be reconsidered, by which the peti 
 tion of William C. Nell and others was ordered 
 to be entered upon the journal. 
 
 Mr. BUTLER. Upon the motion of recon 
 sideration I move the previous question. 
 
 Mr. HALLETT. I hope the gentleman will 
 have the courtesy to withdraw that motion and 
 allow me to finish my statement. 
 
 Mr. BUTLER. I certainly will. 
 
 Mr. HALLETT. The language attributed in 
 that petition to a member of this Convention, 
 although it was not what I said, yet evidently 
 could be attributed to no one but me, because 
 that was the line of argument which I used, 
 although the statement which I made was entirely 
 different. It was in reply to a question of the 
 gentleman from Natick, who now occupies the 
 chair, (Mr. Wilson,) when the resolutions in re 
 lation to the militia were under discussion, as to 
 what would be the powers of the governor of this 
 Commonwealth under the Constitution of the 
 United States, if the person who should be elected 
 governor of this Commonwealth should happen 
 to be a person of color ; and my exact language, 
 as reported at the time, I now quote. 
 
 What I said in answer to that question was : 
 
 " That while the Commonwealth of Massachu 
 setts by her Constitution makes no distinction of 
 color in the choice of governor, yet the Constitu 
 tion of the United States gives the power to con 
 gress to declare what shall constitute the militia ; 
 and in the exercise of that power congress has 
 said that it shall be ichite citizens. Consequently 
 although a colored citizen might be the governor 
 of the Commonwealth of Massachusetts, and by 
 virtue of that office, commander-in-chief, yet he 
 can never be enrolled as a soldier in the militia or 
 be an officer of the militia of the United States ; 
 and if, under such circumstances, the governor 
 should be a colored man, you must find some one 
 else to command the militia, if you mean to con 
 form to the supreme law of the land for organiz 
 ing and disciplining the militia." 
 
 Now, Sir, that was"what I said, and it is en 
 tirely different from the language attributed in 
 the protest. It rests simply upon this ground : 
 The Constitution has given to Congress power to 
 say who shall constitute the militia, and they have 
 said that male white citizens shall constitute that 
 body. But Congress has made no such distinction 
 as to the army or the navy, and a colored person 
 
726 
 
 CLOSING REMARKS, &c. 
 
 [72d day. 
 
 Monday,] 
 
 DAVIS HALLETT BIRD WILSON LOTHROP. 
 
 [August 1st. 
 
 may be commander-in-chief of the army, or a 
 commodore in the navy. But congress, in the 
 full exercise of constitutional power, has declared 
 that white citizens alone shall belong to the 
 militia, and, therefore, this Convention has no 
 power to compose the militia of such persons ; and 
 hence, a protest against the Convention for not 
 doing what it has no power to do, is simply an 
 absurdity to enter upon the records. 
 
 Mr. DAVIS, of Fall River. I would inquire 
 whether, upon a question of privilege, the main 
 question can be argued ? 
 
 Mr. HALLETT. I was making a privileged 
 explanation, and, if the gentleman had preserved 
 his politeness for a few minutes longer, he would 
 have saved himself the trouble of this interrup 
 tion. I am aware of the state of feeling existing 
 with some members in this Convention, upon 
 this subject of color, but I desire to stand right 
 in every matter touching the Union of the States, 
 and to place myself upon constitutional ground ; 
 and if the Convention see fit to place me falsely 
 upon their record, and put what is an untruth 
 there, with them the responsibility will rest, and 
 discredit does not attach to me. 
 
 Mr. BIIID. 1 move the previous question. 
 
 The previous question was ordered. 
 
 The question first recurred upon the motion to 
 reconsider the vote, by which the protest was 
 ordered to be placed upon the records of the 
 Convention, and, being put, it was decided in the 
 affirmative ; there being, on a division ayes, 91 ; 
 noes, 57. 
 
 The question then being upon the motion to 
 enter the protest upon the journal of the Con 
 vention 
 
 Mr. BIRD moved to lay the protest upon the 
 table, which motion was agreed to. 
 
 So it was laid upon the table. 
 
 The PRESIDENT here announced the Com 
 mittee heretofore ordered to examine and count 
 the return of votes on the several Constitutional 
 Propositions, to consist of the following gentle 
 men : 
 
 Messrs. Bout well, for Berlin, 
 
 Dana, " Manchester, 
 Giles, of Boston, 
 Morton, " Andover, 
 Upham, " Salem, 
 Butler, " Lowell, 
 Wilson, " Natick, 
 Griswold, for Erving, 
 Frothingham, of Charlestown, 
 Wood, " Middleborough, 
 
 Willard, " Boston, 
 Aspinwall, " Brookline, 
 
 Chapin, 
 
 Sleeper, 
 
 Allen, 
 
 French, 
 
 Oliver, 
 
 Eames, 
 
 Phinney, 
 
 White, 
 
 of Springfield, 
 " Roxbury, 
 " Worcester, 
 " New Bedford, 
 " Lawrence, 
 " Washington, 
 for Chatham, and 
 of Quincy. 
 
 Mr. WILSON. I would inquire of the Chair 
 if there is any more business before the Conven 
 tion? 
 
 The PRESIDENT. The Chair is not aware 
 of any unfinished business. 
 
 Closing RemarJis. 
 
 Mr. LOTIIROP, of Boston. I should like to 
 inquire if the Chair has been notified of a vote 
 passed by the Convention on Saturday last, pre 
 senting to him the thanks of this body for the 
 manner in which he has discharged the duties of 
 the Chair ? 
 
 I hope, Mr. President, we shall not separate 
 without a few words from some gentleman and 
 from the Chair, suitable and appropriate to the 
 close of the highly important duties in which we 
 have been engaged. I, for one, Sir, may take 
 this occasion to say, perhaps, that I regretted that 
 the subject upon which we acted on Saturday 
 last, was brought forward at that precise time. I 
 think it would have been much better, more ap 
 propriate, and more interesting to all of us, if it 
 had been deferred until we approached the closing 
 hours of the session, and of our official connection 
 as members of this Convention. It may not be 
 improper for me, also to say, that for one, I re 
 gretted the precise phraseology of that vote. Gen 
 tlemen know very well that I am no party poli 
 tician. I am here with political opinions and 
 convictions more in harmony with one party than 
 another ; and to those convictions I have aimed 
 to be true, and presume we all have had a similar 
 him. But I am also here, with those views, feel 
 ings and relations, which my profession disposes 
 me to cherish towards all men of all parties. I 
 know not that I am competent to judge of this 
 matter, but it does seem to me that men of all 
 parties here, should be ready to give a hearty, full, 
 and generous response to a vote of thanks to our 
 presiding officer. It does seem to me that we, 
 all of us, owe to him that expression of feeling. 
 I have never before been a member of a delib 
 erative assembly, and am not, therefore, able to 
 judge by comparison and contrast, but I presume 
 every man here, to whatever political party he 
 belongs, and however large his legislative expe 
 rience, and, although he may, occasionally have 
 
72d day.] 
 
 CLOSING REMARKS. 
 
 727 
 
 Monday,] 
 
 LOTIIROP EAMES HILLARD HALLETT. 
 
 [August 1st. 
 
 differed from or disliked the rulings of the Chair, 
 will yet when he considers all the difficulties of 
 the position the duties, always arduous and often 
 delicate that devolve upon it be disposed to admit 
 that the distinguished gentleman who has filled 
 the Chair, h ,s presided over the deliberations of 
 this assembly with eminent ability, with great 
 impartiality, with a patient courtesy, and constant 
 and assiduous fidelity. This is very strongly my 
 own impression, and I think that we owe it very 
 much to him, that we have been able to conduct 
 our discussions and complete our business with 
 so much harmony with the introduction of so 
 little that was personal, improper or unparlia 
 mentary. 
 
 I hope, Sir, to hear on the part of other gentle 
 men, an expression of similar sentiments, and I 
 hope that the Chair will be disposed to say to us 
 some kind, appropriate and touching words before 
 we depart from these halls for the last time, that 
 we may all go to our homes feeling kindly dis 
 posed to each other, inspired with a loftier pa 
 triotism and a deeper interest in the good old 
 Commonwealth of Massachusetts, which we have 
 all been here endeavoring to serve, according to 
 our honest convictions and to the best of our 
 ability, and whose glory and prosperity we would 
 have ever increasing and perpetual. 
 
 Mr. EAMES, of Washington. I can say for 
 one, that I have been much gratified with the 
 manner in which the Chair has conducted and 
 managed the business of this Convention. This 
 is the second Convention for revising tha Consti 
 tution of which I have had the honor of being a 
 member, and I can say for one, that I have felt 
 much gratified at the unanimity of feeling which 
 has generally pervaded our deliberations. 
 
 I was much pleased with the remarks which 
 fell from the gentleman from Pittsfield, (Mr. 
 Briggs,) on Saturday last, and I can say that my 
 feelings correspond with the sentiments which he 
 then expressed. It is not any way likely, accord 
 ing to the course of human events, that we shall 
 all meet again. There are only six of us who 
 were members of the Convention of 1820, and it 
 is seldom that any of us meet in two Conventions 
 to amend the organic law. I had the impression 
 that in the Convention of 1820 there was but one 
 individual who had been a member of the Con 
 vention of 1780. But I have been told that there 
 were two. The Hon. John Quincy Adams was 
 one. For one, I can say, I part with my asso 
 ciates here in perfect friendship, and shall ever 
 meet them hereafter with the same feeling. 
 
 Mr. HILLARD, of Boston. I certainly re 
 spond most cordially and sincerely to all that has 
 fallen from my valued friend from Boston, (Mr. 
 
 Lothrop,) and, indeed, were I to express my full 
 sense of the ability with which the duties of the 
 Chair have been performed, and of the obligations 
 we are under to the President, I should that 
 gentleman being present consider myself as 
 passing beyond the limits of decorum and good 
 taste. I can only say, in recalling the conduct 
 and bearing of the gentleman who has presided 
 over our deliberations, I cannot bring to my 
 thoughts any person in the Convention or out of 
 it, whom we could have substituted for him, and 
 been gainers in the exchange. In looking back 
 upon our discussions, we have a right to say that 
 they have been characterized by a more than 
 common degree of decorum and propriety, con 
 sidering the nature of the topics and the zeal of 
 the speakers. Of course it is impossible, in colli 
 sion of strong convictions and strong feelings, 
 that occasional sparks of excitement should not 
 have flashed forth. But I submit, that in com 
 parison with similar bodies, we may look back 
 with satisfaction and pride at the course of our 
 debates, and especially at the harmonious feelings 
 with which our deliberations are brought to a 
 close. 
 
 To those who have had experience in such 
 bodies, I need not say how much we are indebted 
 to the spirit which has presided over us, to the 
 spirit of mingled firmness, tact, and moderation, 
 that has overshadowed us from the beginning ; 
 and I, for one, am ready to make acknowledg 
 ment in the fullest and amplest terms. 
 
 Mr. HALLETT, for Wilbraham. I think we 
 cannot separate without reflecting with some de 
 gree of interest and intenseness, upon that very 
 important relation which has existed between 
 you, Sir, as the presiding officer of this body, and 
 ourselves, individually, as its members. Sir, 
 while all the people of this earth consisting now 
 of some nine hundred millions of souls are un 
 der different forms of government, which have 
 existed from time immemorial, this spot upon 
 God s earth, the United States of America, com 
 posed of twenty- three or twenty- four millions of 
 people, is the only place, and this the only people, 
 in which such a Convention as this could assem 
 ble for such a purpose as that for which it was 
 called. Now, that in the simple exercise of the 
 peaceful right of citizens, as delegates of the peo 
 ple of the Commonwealth, we have come here 
 unmolested and quietly to frame a constitutional 
 government to be submitted to the people, upon 
 which they are to say " yes" or " no," and which, 
 if they say " yes," is to take the place of the old 
 government, by as easy a transition as takes place 
 in ordinary affairs, and that this can be done and 
 that we are the agents, is certainly a thing that 
 
728 
 
 CLOSING REMARKS. 
 
 [72d day. 
 
 Monday,] 
 
 MARVIN WILSON LOTHROP WALKER BANKS. 
 
 [August 1st. 
 
 can never pass from our minds. It is a link that 
 should bind us together as brethren while we 
 live. Let us never forget, if we should hereafter 
 be brought in any conflict with each other, that 
 here, in this Convention, we stood together, del 
 egates of the people, with this great power of 
 proposing a form of government for their adop 
 tion. 
 
 Sir, that the proceedings of this Convention 
 have been conducted so harmoniously, and that 
 its results have thus far been so successful and 
 satisfactory, and will terminate, as I think, so use 
 fully to the Commonwealth, has been, in a great 
 measure, owing to the manner in which you have 
 exercised the authority with which the Conven 
 tion invested you. I am sure that every heart 
 will feel, and every voice will respond to the 
 resolution of thanks for the manner in which 
 you have presided over us. 
 
 Mr. MARVIN, of Boston. Before any re 
 marks are made by the President, I hope that 
 some gentleman will close our session with prayer. 
 I feel that we are all indebted to the kind provi 
 dence of Almighty God, for having preserved us, 
 with one exception, in life and health. We be 
 gan by imploring the blessing of God ; let us 
 close our labors by rendering him thanks, and 
 giving him praise. 
 
 Mr. WILSON, of Natick. The hours of this 
 Convention are numbered. Our duties here are 
 performed. To the people we have committed 
 the results of our deliberations and labors. Af 
 ter ninety days of toil together, we are about to 
 part, to meet not again in this world of vicis 
 situde and death. In this closing hour it is 
 proper for us to turn our thoughts to that 
 Being who has preserved us. I move that the 
 Convention invite the Rev. Dr. Lotlirop to close 
 our session with prayer. 
 
 The PRESIDENT. The Chair will assume 
 the consent of the Convention, and invites the 
 Rev. Mr. Lothrop to perform that duty. 
 
 Mr. LOTHROP then took the President s desk, 
 and offered the following 
 
 Prayer. 
 
 Almighty God ! We began our labors by in 
 voking Thy blessing; we would close them by 
 again invoking that blessing, by lifting up devout 
 and grateful hearts to Thee, the God of our fa 
 thers, and thanking Thee for all Thy mercies in 
 past generations, and for all Thy goodness to us, 
 here present, in preserving our lives, and in 
 enabling us to attend faithfully to the duties 
 that have devolved upon us. We thank Thee, 
 O God, for all the harmony and good feeling, for 
 all the mutual respect and kindness that have 
 
 prevailed through our deliberations. We thank 
 Thee that, guided and sustained by Thy good 
 providence, we have now been enabled to bring 
 these deliberations to a close ; and we would 
 commend ourselves, and the great work on which 
 we have been engaged, and all the high and 
 important interests of this ancient and honorable 
 Commonwealth, to Thy divine disposal, to Thy 
 protection and care, and to Thy parental provi 
 dence. May we, O God may all the people of 
 the Commonwealth continue to adore, and rev 
 erence, and love, and serve Thee, the God of our 
 fathers, and so walk in the ways of virtue, of 
 uprightness, of all Christian grace and godliness, 
 that we may continue to be a name and a praise 
 among the communities of the earth that the 
 blessing of the Lord our God may be upon us, 
 even as it was upon our fathers. May Thy peace 
 abide in all our hearts, Thy blessing be upon all 
 our families, Thy goodness and favor attend us, 
 now and forever. We ask these mercies through 
 Him who loved us, and gave Himself for us, to 
 whom be glory, in His church, forever. 
 
 Mr. WALKER, of North Brookfield, moved 
 that the Convention do now adjourn sine die. 
 
 The motion was agreed to. 
 
 President s Address. 
 
 The PRESIDENT. Gentlemen of the Con 
 vention. Availing myself of the privilege usually 
 afforded those who stand in the position I now 
 occupy, before I speak that word which severs 
 our official relations with each other, and with 
 the Commonwealth, I return you my sincere 
 thanks for the generous kindness with which you 
 have received the limited measure of fidelity and 
 capacity I have been able to bring to the dis 
 charge of my duties. 
 
 There are many reasons why this generosity 
 should be grateful to me. But none is stronger 
 than that which arises from the high character of 
 the assembly to whose indulgence I am so large 
 a debtor. For patient investigation, assiduous, 
 unremitting, and conscientious devotion to labo 
 rious duties, in a most oppressive season, I be 
 lieve 110 representative assembly ever surpassed 
 that whose labors are now about to close. It is 
 not for me to distrust the wisdom of the counsels 
 by which you have been guided. I am impressed 
 with the conviction that your labors will be ap 
 proved ; that the results you have reached will 
 be ratified by the people of the Commonwealth. 
 The moment that fortune has assigned you for 
 their submission to the people you represent, is 
 auspicious. Although the silent dial before us 
 indicates a brief moment beyond, yet we have 
 not closed the day which is the anniversary of 
 
72d day.] 
 
 CLOSING REMARKS. 
 
 729 
 
 Monday,] 
 
 BANKS. 
 
 [August 1st. 
 
 the embarkation of the Pilgrim Fathers ; of the 
 inauguration of that series of sublime events that 
 has resulted in the consummation of constitu 
 tional liberty, and permanent popular govern 
 ments. 
 
 Whatever destiny may be in store for our re 
 public whether it be amid the convulsions of 
 distant empires, to sway the sceptre of earth s 
 seas, or with an expansive power hitherto un 
 known, to absorb and consolidate in a single 
 state, of limited powers, the territory of conti 
 nents, or to achieve a nobler triumph in the do 
 main of industry, science and art I trust that 
 Massachusetts, true to the instincts of her nature, 
 as colony or commonwealth, may still stand at 
 the head of the column of progressive States ; her 
 Constitution without fault, and her people with 
 out fear. 
 
 I am sure I do not misinterpret the feelings of 
 your hearts, in saying that we cannot separate 
 without chastening our anticipated joys by recall 
 ing the memory of one, whose seat to-night is 
 vacant, whose life was distinguished by the virtues 
 which adorn human nature, but who in health 
 and high hopes has been swept from among us 
 by the hand of death. We cannot separate with 
 out a tear of sympathy and consolation for the 
 
 happy family by this bereavement made desolate ; 
 nor yet without a consciousness that the loss 
 which is ours, is the gain of our brother who is 
 gone ; that it is for us to mourn for the living 
 only, and not for the dead. We cannot separate 
 without grateful and fervent acknowledgments 
 for the Divine goodness that has preserved so 
 many of us from suffering, sickness, and death. 
 
 But the delays of the day s session, the tedi- 
 ousness of the parting act and word, have already 
 detained you too long from the invigorating ocean 
 air, and the sweet and pure breeze of inland and 
 highland ; from the loved sights and sounds of 
 home; the congratulations of friends, and the 
 applause of satisfied constituencies, that must 
 revive your exhausted energies, and enable you 
 to recall, without pain, the laborious and anxious 
 days we have passed together ; joys that might 
 almost renew a life under the hand of death. 
 No act or word of mine shall add to the unwel 
 come detention. Health, happiness, honor, to 
 you all, gentlemen. Your kindness is engraven 
 on my heart, where, every day, I will turn the 
 leaf to read it. 
 
 It remains for me but to announce that the 
 Convention of 1853 is adjourned, without 
 day. 
 
 49 ; 
 
APPENDIX, 
 
 of 
 
 In the Year of our Lord One Thousand Eight Hundred and Fifty-Two. 
 
 AN ACT 
 
 RELATING TO THE CALLING A CONVENTION OF DELEGATES OF THE PEOPLE, 
 FOR THE PURPOSE OF REVISING THE CONSTITUTION. 
 
 Be it Enacted by the Senate and House of representatives, in General Court assembled, and by ths 
 authority of the same, as folloics : 
 
 SECTION 1. The inhabitants of the several 
 cities, towns, districts, and places within this 
 Commonwealth, qualified to vote for senators or 
 representatives in the general court, shall, on the 
 second Monday of November next, at the meet 
 ings to be then held in the several cities and towns 
 in the Commonwealth, for the choice of governor, 
 lieutenant-governor, senators and representatives 
 in the general court, an article for this purpose 
 being inserted in the warrants calling said meet 
 ings, give in their votes by ballot on this ques 
 tion : " Is it expedient that delegates should be 
 chosen to meet in convention for the purpose of 
 revising or altering the constitution of government 
 of this Commonwealth?" And the vote upon 
 said question shall be in open meeting, and the 
 votes in the several cities and towns in the Com 
 monwealth shall be received, sorted, counted, 
 declared, and transmitted to the Secretary of the 
 Commonwealth, in the same manner as the votes 
 for governor, lieutenant-governor, and senators 
 are now received, sorted, counted, declared and 
 transmitted by the constitution and laws of the 
 Commonwealth; and all returns not thus made 
 shall be rejected in the counting. And the Gov 
 ernor and Council shall open and examine the 
 returns, made as aforesaid, and count the votes 
 given on the said question ; and the governor 
 shall, by public proclamation, to be made on or 
 before the first Wednesday in January next, 
 make known the result, by declaring the number 
 appearing in favor of choosing delegates for the 
 purpose aforesaid, and the number of votes ap 
 pearing against the same ; and if it shall appear 
 that a majority of the votes given in and returned 
 
 as aforesaid are in favor of choosing delegates as 
 aforesaid, the same shall be deemed and taken to 
 be the will of the people of the Commonwealth, 
 that a Convention should meet accordingly ; and 
 in case of such majority, the governor shall call 
 upon the people to elect delegates to meet in 
 Convention, in the manner hereinafter provided. 
 SECT. 2. If it shall be declared by the said 
 proclamation, that the majority of votes, as afore 
 said, is in favor of choosing delegates, as above- 
 mentioned, the inhabitants of the several cities 
 and towns within the Commonwealth, now en 
 titled any one year to send one or more repre 
 sentatives to the general court, shall, on the first 
 Monday of March, in the year one thousand eight 
 hundred and fifty- three, assemble in their several 
 meetings, to be duly notified by warrant from the 
 selectmen of the several towns and the mayor and 
 aldermen of the several cities, and shall elect one 
 or more delegates, not exceeding the number of 
 representatives to which each town or city was 
 entitled last year, it being the year in which the 
 valuation of estates in the Commonwealth was 
 settled, to meet delegates from other towns and 
 cities in Convention, for the purposes hereinafter 
 expressed. And at such meetings of the inhabit 
 ants, every person entitled to vote for representa 
 tives in the general court, shall have a right to 
 vote in the choice of delegates, and the same offi 
 cers, in the several cities and towns in the Com 
 monwealth, shall preside at such elections, as 
 now preside in the choice of representatives to 
 the general court ; and the votes for said delegates 
 shall be received, sorted, counted, declared, re 
 corded, and copies thereof delivered to the dele- 
 
732 
 
 APPENDIX. 
 
 [1852. 
 
 ABSTRACT OF VOTES. 
 
 gates chosen, in the same manner as is now pro 
 vided for in the case of representatives to the gen 
 eral court. And all laws now in force, regulating 
 the duty and conduct of town and city officers, 
 sheriffs, magistrates, and electors, in the election 
 of governor, lieutenant-governor, senators and 
 representatives, shall, as far as applicable, apply, 
 and be in full force and operation, as to all meet 
 ings holden, and elections and returns made, un 
 der this act, or which by this act are required to 
 be holden or made, and upon the like forfeitures 
 and penalties. 
 
 SECT. 3. The persons so elected delegates 
 shall meet in Convention in the State House, in 
 Boston, on the first Wednesday in May, in the 
 year one thousand eight hundred and fifty- three ; 
 and they shall be the judges of the returns and 
 elections of their own members, and may adjourn 
 from time to time ; and one hundred of the per 
 sons elected shall constitute a quorum for the 
 transaction of business ; and they shall proceed, 
 as soon as may be, to organize themselves in 
 Convention, by choosing a president and such 
 other officers as they may deem expedient, and by 
 establishing proper rules of proceeding ; and 
 when organized, they may take into consideration 
 the propriety and expediency of revising the pres 
 ent Constitution of government of this Common 
 wealth, or the propriety and expediency of mak 
 ing any, and if any, what alterations or amend 
 ments, in the present Constitution of government 
 
 of this Commonwealth. And such alterations or 
 amendments, when made and adopted by the said 
 Convention, shall be submitted to the people for 
 their ratification and adoption, in such manner as 
 the said Convention shall direct^ and if ratified 
 by the people in the manner directed by the said 
 Convention, the Constitution shall be deemed 
 and taken to be altered or amended accordingly ; 
 and if not so ratified, the present Constitution 
 shall be and remain the Constitution of Govern 
 ment of this Commonwealth. 
 
 SECT. 4. The said Convention shall establish 
 the pay or compensation of its officers and mem 
 bers, and the expense of its session ; and his 
 exellency the governor, by and with the advice 
 and consent of the Council, is authorized to draw 
 his warrant on the treasury therefor. 
 
 SECT. 5. The Secretary of the Commonwealth 
 is hereby directed forthwith, after the passage 
 thereof, to transmit printed copies of this Act to 
 the selectmen of each town, and the mayor and 
 aldermen of each city within the Commonwealth ; 
 and whenever the governor shall issue his procla 
 mation, calling upon the people to elect delegates, 
 to meet in Convention as aforesaid, the said sec 
 retary shall also, immediately thereafter, transmit 
 printed copies of said proclamation, attested by 
 himself, to the selectmen of each town, and the 
 mayor and ealdrmen of each city, in the Com 
 monwealth. 
 
 [Approved, May 7, 1852.] 
 
 ABSTRACT OF THE RETURNS OF VOTES 
 
 For and against calling a Convention to Revise the Constitution, under the Ad of May 7, 1852. 
 
 ELECTION, NOVEMBER 8, 1852. 
 
 COUNTY OF SUFFOLK. 
 
 COUNTY OF ESSEX. 
 
 TOWNS. 
 
 Whole No. 
 
 For. 
 
 Against. 
 
 TOWNS. 
 
 Whole No. 
 
 For. 
 
 Against. 
 
 Boston, . 
 Chelsea, . 
 North Chelsea, 
 Winthrop, 
 
 4 Towns, . 
 
 9,974 
 790 
 66 
 37 
 
 3,458 
 420 
 18 
 21 
 
 6,456 
 370 
 38 
 16 
 
 Amesbury, 
 Andover, 
 Beverly, . 
 B oxford, . 
 Bradford, 
 Danvers, . 
 Essex, 
 
 545 
 
 721 
 885 
 173 
 218 
 1,274 
 241 
 
 323 
 439 
 490 
 34 
 127 
 638 
 160 
 
 222 
 
 282 
 395 
 139 
 91 
 636 
 81 
 
 10,859 
 
 3,977 
 
 6,880 
 
1852.] 
 
 APPENDIX. 
 
 733 
 
 ABSTRACT OF VOTES. 
 
 COUNTY OF ESSEX-Cox. 
 
 COUNTY OF MIDDLESEX CON. 
 
 4 
 
 TOWNS. 
 
 Whole No. 
 
 For. 
 
 Against. 
 
 TOWNS. 
 
 Whole No. 
 
 For. 
 
 Against, 
 
 Georgetown, 
 
 353 
 
 194 
 
 159 
 
 Newton, . 
 
 581 
 
 245 
 
 336 
 
 Gloucester, 
 
 708 
 
 395 
 
 313 
 
 Pepperell, 
 
 234 
 
 110 
 
 124 
 
 Groveland, 
 
 243 
 
 151 
 
 92 
 
 Reading, . 
 
 557 
 
 281 
 
 276 
 
 Hamilton, 
 
 164 
 
 94 
 
 70 
 
 Sherborn, 
 
 141 
 
 44 
 
 97 
 
 Haverhill, 
 
 1,108 
 
 644 
 
 464 
 
 Shirley, . 
 
 197 
 
 116 
 
 81 
 
 Ipswich, . 
 
 424 
 
 251 
 
 173 
 
 Somerville, 
 
 380 
 
 174 
 
 206 
 
 Lawrence, 
 
 1,046 
 
 556 
 
 490 
 
 South Reading, 
 
 388 
 
 218 
 
 170 
 
 Lynn, 
 
 1,834 
 
 1,006 
 
 828 
 
 Stoneham, 
 
 388 
 
 276 
 
 112 
 
 Lynnfield, 
 
 92 
 
 69 
 
 23 
 
 Stowe, 
 
 139 
 
 82 
 
 57 
 
 Manchester, 
 
 219 
 
 157 
 
 62 
 
 Sudbury, 
 
 215 
 
 136 
 
 79 
 
 Marblehead, 
 
 596 
 
 397 
 
 199 
 
 Tewksbury, 
 
 156 
 
 62 
 
 94 
 
 Methuen, 
 
 334 
 
 149 
 
 185 
 
 Townsend, 
 
 281 
 
 190 
 
 91 
 
 Middleton, 
 
 126 
 
 94 
 
 32 
 
 Tyngsborough, 
 
 91 
 
 50 
 
 41 
 
 Newbury, 
 
 148 
 
 39 
 
 109 
 
 Waltham, 
 
 600 
 
 310 
 
 290 
 
 Newburyport, . 
 
 1,227 
 
 463 
 
 764 
 
 Water town, 
 
 341 
 
 154 
 
 187 
 
 Ilockport, . 
 
 387 
 
 245 
 
 142 
 
 Wayland, 
 
 194 
 
 109 
 
 85 
 
 Rowley, . 
 
 155 
 
 22 
 
 133 
 
 West Cambridge, 
 
 268 
 
 124 
 
 144 
 
 
 1 806 
 
 686 
 
 1,120 
 
 Westford, 
 
 235 
 
 130 
 
 105 
 
 Salisbury, 
 
 338 
 
 206 
 
 132 
 
 Weston, . 
 
 152 
 
 76 
 
 76 
 
 Saugus, . 
 
 251 
 
 191 
 
 60 
 
 Wilmington, 
 
 124 
 
 75 
 
 49 
 
 Swampscott, 
 
 99 
 
 86 
 
 13 
 
 Winchester, 
 
 259 
 
 112 
 
 147 
 
 Topsfield, . 
 
 189 
 
 57 
 
 132 
 
 Woburn, . 
 
 568 
 
 427 
 
 141 
 
 "V\7*}vi K o i-*-* 
 
 1 OQ 
 
 07 
 
 Q 1 
 
 
 
 
 
 T T (_ 11 Iltllll j * 
 
 West Newbury, 
 
 loo 
 
 235 
 
 y / 
 107 
 
 y i 
 128 
 
 50 Towns, . 
 
 20,804 
 
 10,755 
 
 10,049 
 
 31 Towns, . 
 
 16,327 
 
 8,567 
 
 7,760 
 
 
 
 
 
 
 
 
 
 
 COUNTY OF WORCESTER. 
 
 COUNTY OF MIDDLESEX. 
 
 
 
 
 
 
 
 Ashbumham, . 
 
 338 
 
 220 
 
 118 
 
 
 
 
 
 Athol, . 
 
 370 
 
 217 
 
 153 
 
 Acton, 
 
 256 
 
 197 
 
 59 
 
 Auburn, . 
 
 125 
 
 102 
 
 23 
 
 Ashby, . 
 
 330 
 
 92 
 
 138 
 
 Barre, 
 
 535 
 
 253 
 
 282 
 
 Ashland, . . . 
 
 185 
 
 83 
 
 102 
 
 Berlin, . 
 
 130 
 
 101 
 
 29 
 
 Bedford, . 
 
 166 
 
 135 
 
 31 
 
 Blackstone, 
 
 332 
 
 242 
 
 90 
 
 Billerica, . 
 
 289 
 
 144 
 
 145 
 
 Bolton, 
 
 218 
 
 117 
 
 101 
 
 Boxborough, . 
 
 72 
 
 44 
 
 28 
 
 Boylston, . 
 
 129 
 
 90 
 
 39 
 
 Brighton, 
 
 215 
 
 14 
 
 201 
 
 Brookfield, 
 
 307 
 
 235 
 
 72 
 
 Burlington, 
 
 77 
 
 66 
 
 11 
 
 Charlton, . 
 
 354 
 
 300 
 
 54 
 
 Cambridge, 
 
 1,659 
 
 551 
 
 1,108 
 
 Clinton. . 
 
 364 
 
 184 
 
 180 
 
 Carlisle, . 
 
 103 
 
 72 
 
 31 
 
 Dana, 
 
 140 
 
 72 
 
 68 
 
 Charlestown, . 
 
 1,783 
 
 686 
 
 1,097 Douglas, . 
 
 335 
 
 214 
 
 121 
 
 Chelmsford, 
 
 260 
 
 159 
 
 101 
 
 Dudley, . 
 
 214 
 
 157 
 
 57 
 
 Concord, . 
 
 270 
 
 164 
 
 106 
 
 Fitch burg, 
 
 847 
 
 561 
 
 286 
 
 Dracut, . 
 
 246 
 
 153 
 
 93 
 
 Gardner, . 
 
 285 
 
 199 
 
 86 
 
 D unstable, 
 
 126 
 
 69 
 
 57 
 
 Graf ton, . 
 
 503 
 
 307 
 
 196 
 
 Framingham, . 
 
 554 
 
 199 
 
 355 
 
 Hard wick, 
 
 318 
 
 185 
 
 133 
 
 Groton, . . 
 
 305 
 
 159 
 
 146 
 
 Harvard, . 
 
 273 
 
 180 
 
 93 
 
 Holliston, . 
 
 324 
 
 213 
 
 111 
 
 Holden, . 
 
 327 
 
 203 
 
 124 
 
 Hopkinton, 
 
 381 
 
 291 
 
 90 
 
 Hubbardston, . 
 
 322 
 
 250 
 
 72 
 
 Lexington, 
 
 261 
 
 101 
 
 160 
 
 Lancaster, 
 
 231 
 
 54 
 
 177 
 
 Lincoln, . 
 
 105 
 
 44 
 
 61 
 
 Leicester, . 
 
 389 
 
 281 
 
 108 
 
 Littleton, 
 
 155 
 
 91 
 
 64 
 
 Leominster, 
 
 588 
 
 377 
 
 211 
 
 Lowell, . 
 Maiden, . 
 
 4,100 
 492 
 
 2,253 
 251 
 
 1,847 
 241 
 
 Lunenburg, 
 Mendon, . 
 
 238 
 182 
 
 159 
 141 
 
 79 
 41 
 
 Marlborough, . 
 
 464 
 
 357 
 
 107 
 
 Miltbrd, . 
 
 657 
 
 466 
 
 191 
 
 Medford, . 
 
 594 
 
 298 
 
 296 
 
 Millbury, . 
 
 412 
 
 294 
 
 118 
 
 Melrose, . 
 
 209 
 
 151 
 
 58 
 
 New Braintree, 
 
 120 
 
 51 
 
 69 
 
 Natick, . 
 
 434 
 
 217 
 
 217 
 
 Northborough, 
 
 298 
 
 184 
 
 114 
 
734 
 
 APPENDIX. 
 
 [1852. 
 
 ABSTRACT OF VOTES. 
 
 COUNTY OF WORCESTER CON. 
 
 COUNTY OF HAMPDEN. 
 
 TOWNS. 
 
 Whole No. 
 
 For. 
 
 Against. 
 
 TOWNS. 
 
 Whole No. 
 
 For. 
 
 Against. 
 
 Northbridge, 
 North Brookfield, . 
 Oakham, . 
 
 272 
 319 
 145 
 
 150 
 249 
 102 
 
 122 
 70 
 43 
 
 Blandford, 
 Brimfield, 
 
 284 
 245 
 
 183 
 139 
 
 101 
 106 
 
 Oxford, . 
 
 401 
 
 272 
 
 129 
 
 Chester, . 
 
 248 
 
 132 
 
 116 
 
 Paxton, . . 
 
 161 
 
 126 
 
 35 
 
 Chicopee, . 
 
 824 
 
 357 
 
 467 
 
 Petersham, 
 
 270 
 
 160 
 
 110 
 
 Granville, 
 
 239 
 
 147 
 
 92 
 
 Phillipston, 
 Princeton, 
 Royalston, 
 
 136 
 227 
 
 229 
 
 48 
 141 
 66 
 
 88 
 86 
 163 
 
 Holland, . 
 Hoi yoke, . 
 Longmeadow, . 
 
 42 
 336 
 188 
 
 196 
 
 77 
 
 42 
 140 
 111 
 
 Rutland, . 
 
 172 
 
 132 
 
 40 
 
 Ludlow, . 
 
 207 
 
 121 
 
 86 
 
 Shrewsbury, 
 Southborough, . 
 
 320 
 211 
 
 229 
 155 
 
 91 
 56 
 
 Monson, . 
 Montgomery, . 
 
 374 
 
 83 
 
 202 
 76 
 
 172 
 
 7 
 
 Southbridge, 
 Spencer, . 
 
 411 
 473 
 
 261 
 248 
 
 150 
 225 
 
 Palmer, . 
 Russell, . 
 
 427 
 92 
 
 239 
 
 76 
 
 188 
 16 
 
 Sterling, . 
 
 327 
 
 138 
 
 189 
 
 Southwick, 
 
 212 
 
 153 
 
 59 
 
 Sturbridge, 
 
 330 
 
 217 
 
 113 
 
 Springfield, 
 
 1,659 
 
 862 
 
 797 
 
 Sutton, . 
 
 360 
 
 298 
 
 62 
 
 Tolland, . 
 
 101 
 
 58 
 
 43 
 
 Templeton, 
 
 368 
 
 236 
 
 132 
 
 Wales, . 
 
 82 
 
 47 
 
 35 
 
 Upton, . . 
 
 333 
 
 213 
 
 120 
 
 Westfield, 
 
 772 
 
 512 
 
 260 
 
 Uxbridge, 
 
 322 
 
 211 
 
 111 
 
 West Springfield, 
 
 473 
 
 197 
 
 276 
 
 Warren, . 
 
 "TTT V * 
 
 256 
 
 140 
 
 116 
 
 Wilbraham, 
 
 320 
 
 212 
 
 108 
 
 Webster, . 
 Westborough, . 
 
 336 
 367 
 
 200 
 215 
 
 136 
 152 
 
 20 Towns, . 
 
 7,208 
 
 3,986 
 
 3,222 
 
 West Boylston, 
 
 269 
 
 221 
 
 48 
 
 
 
 
 
 West Brookfield, 
 
 226 
 
 158 
 
 68 
 
 
 Westminster, . 
 
 356 
 
 214 
 
 142 
 
 
 Winchendon, . 
 
 400 
 
 230 
 
 170 
 
 
 Worcester, 
 
 2,908 
 
 2,027 
 
 881 
 
 COUNTY OF FRANKLIN. 
 
 58 Towns, . 
 
 20,786 
 
 13,453 
 
 7,333 
 
 
 
 
 
 
 Ashfield, . 
 Bernardston, 
 
 271 
 212 
 
 162 
 118 
 
 109 
 94 
 
 COUNTY OF HAMPSHIRE. 
 
 
 
 
 
 Buckland, 
 
 224 
 
 147 
 
 77 
 
 Amherst, . 
 
 501 
 
 180 
 
 321 
 
 Charlemont, . . 
 
 220 
 
 130 
 
 90 
 
 Belcher town, . 
 
 411 
 
 244 
 
 167 
 
 Coleraine, 
 
 281 
 
 136 
 
 145 
 
 Chesterfield, . 
 
 231 
 
 141 
 
 90 
 
 Conway, . 
 
 386 
 
 207 
 
 179 
 
 Cummington, . 
 
 272 
 
 138 
 
 134 
 
 Deerfield, 
 
 423 
 
 233 
 
 190 
 
 Easthampton, . 
 
 205 
 
 93 
 
 112 
 
 Erving, 
 
 55 
 
 49 
 
 6 
 
 Enfield, . 
 
 163 
 
 34 
 
 129 
 
 Gill, 
 
 124 
 
 62 
 
 62 
 
 Goshen, . 
 
 121 
 
 27 
 
 94 
 
 Greenfield, 
 
 520 
 
 256 
 
 264 
 
 Granby, . 
 
 155 
 
 28 
 
 127 
 
 Hawley, . 
 
 129 
 
 62 
 
 67 
 
 Greenwich, 
 
 158 
 
 105 
 
 53 
 
 Heath, 
 
 127 
 
 75 
 
 52 
 
 Hatfield, . 
 
 194 
 
 83 
 
 111 
 
 Leverett, . 
 
 170 
 
 116 
 
 54 
 
 Hadley, . 
 
 321 
 
 57 
 
 264 
 
 Leyden, . 
 
 118 
 
 82 
 
 36 
 
 Middlefield, . 
 
 107 
 
 44 
 
 63 
 
 Monroe, . 
 
 42 
 
 32 
 
 10 
 
 Northampton, . 
 
 883 
 
 463 
 
 420 
 
 Montague, 
 
 240 
 
 151 
 
 89 
 
 Norwich, . 
 
 150 
 
 93 
 
 57 
 
 New Salem, 
 
 217 
 
 126 
 
 91 
 
 Pelham, . 
 
 138 
 
 102 
 
 36 
 
 Northfield, 
 
 297 
 
 190 
 
 107 
 
 Plainfield, 
 
 141 
 
 29 
 
 112 
 
 Orange, . 
 
 234 
 
 131 
 
 103 
 
 Prescott, . 
 
 108 
 
 45 
 
 63 
 
 Rowe, 
 
 121 
 
 46 
 
 75 
 
 South Hadley, . 
 
 275 
 
 93 
 
 182 
 
 Shelburne, 
 
 241 
 
 102 
 
 139 
 
 Southampton, . 
 
 257 
 
 132 
 
 125 
 
 Shutesbury, 
 
 178 
 
 141 
 
 37 
 
 Ware, . 
 
 522 
 
 266 
 
 256 
 
 Sunderland, . . 
 
 202 
 
 95 
 
 107 
 
 Westhampton, . 
 
 136 
 
 53 
 
 83 
 
 Warwick, 
 
 197 
 
 128 
 
 69 
 
 Williamsburg, . 
 
 311 
 
 185 
 
 126 
 
 Wendell, . 
 
 143 
 
 106 
 
 37 
 
 Worthington, . 
 
 213 
 
 94 
 
 119 
 
 Whately, . 
 
 256 
 
 118 
 
 138 
 
 23 Towns, . 
 
 5,973 
 
 2,729 
 
 3,244 
 
 26 Towns, . 
 
 5,628 
 
 3,201 
 
 2,427 
 
1852.] 
 
 APPENDIX. 
 
 735 
 
 ABSTRACT OF VOTES. 
 
 COUNTY OF BERKSHIRE. 
 
 TOWNS. 
 
 Whole No. 
 
 For. 
 
 Against. 
 
 Adams, . 
 
 885 
 
 439 
 
 446 
 
 Alford, . 
 
 92 
 
 68 
 
 24 
 
 Becket, . 
 
 185 
 
 87 
 
 98 
 
 Cheshire, . 
 
 218 
 
 214 
 
 4 
 
 Clarksburg, 
 
 61 
 
 28 
 
 33 
 
 Dalton, . 
 
 166 
 
 118 
 
 48 
 
 Egremont, 
 
 233 
 
 113 
 
 120 
 
 Florida, . 
 
 78 
 
 46 
 
 32 
 
 Great Barrington, 
 
 - 
 
 - 
 
 - 
 
 Hancock, 
 
 116 
 
 65 
 
 51 
 
 Hinsdale, . 
 
 164 
 
 38 
 
 126 
 
 Lanesborough, . 
 
 237 
 
 127 
 
 110 
 
 Lee 
 
 526 
 
 250 
 
 276 
 
 Lenox, 
 
 279 
 
 169 
 
 110 
 
 Monterey, 
 
 145 
 
 105 
 
 40 
 
 Mount Washington, . 
 
 36 
 
 30 
 
 6 
 
 New Ashford, . 
 
 43 
 
 30 
 
 13 
 
 New Marlborough, . 
 
 310 
 
 170 
 
 140 
 
 Otis, 
 
 192 
 
 109 
 
 83 
 
 Peru, 
 
 96 
 
 34 
 
 62 
 
 Pittsfield, 
 
 875 
 
 435 
 
 440 
 
 Richmond, 
 
 117 
 
 97 
 
 20 
 
 Sandisfield, 
 
 246 
 
 153 
 
 93 
 
 Savoy, 
 
 178 154 
 
 24 
 
 Sheffield, . 
 
 348 
 
 198 
 
 150 
 
 Stockbridge, 
 
 310 
 
 180 
 
 130 
 
 Tyringham, 
 Washington, 
 
 119 
 
 87 
 
 74 
 
 50 
 
 45 
 37 
 
 West Stockbridge, . 
 Williamstown, . 
 
 200 
 398 
 
 89 
 232 
 
 111 
 166 
 
 Windsor, . 
 
 177 
 
 104 
 
 73 
 
 31 Towns, . 
 
 7,117 
 
 4,006 | 3,111 
 
 COUNTY OF NORFOLK. 
 
 Bellingham, 
 
 168 
 
 138 
 
 30 
 
 Braintree, 
 
 434 
 
 176 
 
 258 
 
 Brookline, . 
 
 290 
 
 87 
 
 203 
 
 Canton, . 
 
 323 145 
 
 178 
 
 Coh asset, . 
 
 132 1 43 
 
 89 
 
 Dedham, . 
 
 607 
 
 278 
 
 329 
 
 Dorchester, 
 
 961 
 
 468 
 
 493 
 
 Dover, 
 
 93 
 
 41 
 
 52 
 
 Foxborough, . 
 
 306 
 
 186 
 
 120 
 
 Franklin, . 
 
 274 
 
 152 
 
 122 
 
 Medfield, . 
 
 112 
 
 76 
 
 36 
 
 Medway, . . . | 380 
 
 230 
 
 150 
 
 Milton, . 
 
 228 
 
 133 
 
 115 
 
 Needham, 
 
 230 
 
 145 
 
 85 
 
 Quincy, . 
 
 623 
 
 343 
 
 280 
 
 Randolph, 
 
 601 
 
 242 
 
 359 
 
 Roxbury, 
 
 1,273 
 
 424 
 
 849 
 
 Sharon, . 
 
 183 
 
 111 
 
 72 
 
 Stoughton, 
 
 464 
 
 249 
 
 215 
 
 Walpole, . 
 
 300 
 
 161 
 
 ~139 
 
 Wey mouth, 
 
 810 
 
 459 
 
 351 
 
 West Roxbury, 
 
 308 
 
 63 
 
 245 
 
 Wrentham, 
 
 360 
 
 219 
 
 141 
 
 23 Towns, . 
 
 9,480 
 
 4,569 
 
 4,911 
 
 COUNTY OF BRISTOL. 
 
 TOWNS. 
 
 Whole No. 
 
 For. 
 
 Against. 
 
 Attleborough, . 
 
 673 
 
 388 
 
 285 
 
 Berkley, . 
 
 140 
 
 96 
 
 44 
 
 Dartmouth, 
 
 526 
 
 281 
 
 245 
 
 Dighton, . 
 
 226 
 
 136 
 
 90 
 
 Easton, 
 
 414 
 
 235 
 
 179 
 
 Fairhaven, 
 
 602 
 
 335 
 
 267 
 
 Fall River, 
 
 936 
 
 526 
 
 410 
 
 Freetown, 
 
 185 
 
 136 
 
 49 
 
 Mansfield, 
 
 280 
 
 235 
 
 45 
 
 New Bedford, . 
 
 1,934 
 
 873 
 
 1,061 
 
 Norton, . 
 
 266 
 
 159 
 
 107 
 
 Pawtucket, 
 
 365 
 
 215 
 
 150 
 
 Raynham, 
 
 206 
 
 139 
 
 67 
 
 Rehoboth, 
 
 282 
 
 185 
 
 97 
 
 Seekonk, . 
 
 316 
 
 220 
 
 96 
 
 Somerset, . 
 
 194 
 
 113 
 
 81 
 
 Swanzey, . 
 
 210 
 
 117 
 
 93 
 
 Taunton, . 
 
 1,430 
 
 601 
 
 829 
 
 Westport, 
 
 244 
 
 176 
 
 68 
 
 19 Towns, . 
 
 9,429 
 
 5,166 
 
 4,263 
 
 COUNTY OF PLYMOUTH. 
 
 Abington, 
 
 826 
 
 562 
 
 264 
 
 Bridgewater, 
 
 458 
 
 206 
 
 252 
 
 Carver, 
 
 208 
 
 96 
 
 112 
 
 Duxbury, 
 
 438 
 
 271 
 
 167 
 
 East Bridgewater, 
 
 469 
 
 254 
 
 215 
 
 Halifax, . 
 
 134 
 
 81 
 
 53 
 
 Hanover, . 
 
 234 
 
 165 
 
 69 
 
 Hanson, . 
 
 73 
 
 39 
 
 34 
 
 Hingham, 
 
 609 
 
 233 
 
 376 
 
 Hull, 
 
 17 
 
 2 
 
 15 
 
 Kingston, 
 
 239 
 
 132 
 
 107 
 
 Marion, . . 
 
 
 
 
 
 
 
 Marshfield, 
 
 207 
 
 119 
 
 88 
 
 Middleborough, 
 
 715 
 
 437 
 
 278 
 
 North Bridgewater, . 
 
 771 
 
 395 
 
 376 
 
 Pembroke, 
 
 228 
 
 122 
 
 106 
 
 Plymouth, 
 
 830 
 
 450 
 
 380 
 
 Plympton, 
 
 166 
 
 52 
 
 114 
 
 Rochester, 
 
 441 
 
 203 
 
 238 
 
 Scituate, 
 
 242 
 
 173 
 
 69 
 
 South Scituate, 
 
 244 
 
 101 
 
 143 
 
 Wareham, 
 
 391 
 
 127 
 
 264 
 
 West Bridgewater, . 
 
 281 
 
 148 
 
 133 
 
 23 Towns, . 
 
 8,221 
 
 4,368 1 3,853 
 
 COUNTY OF BARNSTABLE. 
 
 Barnstable, 
 Brewster, . 
 Chatham, 
 
 457 
 117 
 134 
 
 285 
 64 
 65 
 
 172 
 53 
 69 
 
736 
 
 APPENDIX. 
 
 [1852. 
 
 ABSTRACT OP VOTES. 
 
 COUNTY OF BABNSTABLE CON. 
 
 RECAPITULATION. 
 
 TOWNS. 
 
 Whole No. 
 
 For. 
 
 Against. 
 
 COUNTIES. 
 
 Whole No. 
 
 For. 
 
 Against 
 
 Dennis, . 
 Eastham, , 
 Falmouth, 
 Harwich, . 
 Orleans, . 
 Provincetown, . 
 Sandwich, 
 Truro, 
 Wellfleet, 
 Yarmouth, 
 
 13 Towns, . 
 
 164 
 71 
 287 
 120 
 92 
 231 
 449 
 73 
 98 
 220 
 
 73 
 40 
 71 
 37 
 16 
 123 
 191 
 28 
 38 
 32 
 
 91 
 31 
 216 
 83 
 76 
 108 
 258 
 45 
 60 
 188 
 
 Suffolk, . 
 Essex, 
 Middlesex, 
 Worcester, 
 Hampshire, 
 Hampden, 
 Franklin, . 
 Berkshire, 
 Norfolk, . 
 Bristol, 
 Plymouth, 
 Barnstable, 
 Nantucket, 
 Dukes County, 
 
 14 Counties, . 
 
 10,857 
 16,327 
 20,804 
 20,786 
 5,973 
 7,208 
 5,628 
 7,117 
 9,480 
 9,429 
 8,221 
 2,513 
 683 
 502 
 
 3,977 
 8,567 
 10,755 
 13,453 
 2,729 
 3,986 
 3,201 
 4,006 
 4,569 
 5,166 
 4,368 
 1,063 
 348 
 228 
 
 6,880 
 7,760 
 10,049 
 7,333 
 3,244 
 3,222 
 2,427 
 3,111 
 4,911 
 4,263 
 3,853 
 1,450 
 335 
 274 
 
 2,513 
 
 1,063 
 
 1,450 
 
 COUNTY OF NANTUCKET. 
 
 Nantucket, 
 
 683 
 
 348 
 
 335 
 
 COUNTY OF DUKES COUNTY. 
 
 Chilmark, 
 Edgartown, 
 Tisbury, . 
 
 3 Towns, 
 
 78 
 250 
 174 
 
 58 
 108 
 62 
 
 20 
 142 
 112 
 
 502 
 
 228 
 
 274 
 
 125,528 
 
 66,416 
 
 59,112 
 
1853.] 
 
 APPENDIX. 
 
 737 
 
 CONSTITUTIONAL PROPOSITIONS. 
 
 CONSTITUTIONAL PROPOSITIONS 
 
 Adopted by the Convention of Delegates, assembled at Boston, on the first Wednesday of May, A. D. 1853, 
 and submitted to the People for their Ratification, with an Address to the People of Massachusetts.* 
 
 The Convention presented the following Propositions, which were submitted to the People, Nov. 14, 1853. 
 
 COMMONWEALTH OF MASSACHUSETTS. 
 
 In the Year One Thousand Eight Hundred and Ffty-Three. 
 
 RESOLVES. 
 
 In the Convention of the Delegates of the people 
 assembled in Boston, on the tirst Wednesday of 
 May, in the year 1853, for the purpose of re 
 vising and amending the Constitution of this 
 Commonwealth. 
 
 Resolved, That- the revised Constitution, pro 
 posed by said Convention, be submitted to the 
 people of the Commonwealth for their ratifica 
 tion and adoption, in the manner following, 
 viz. : 
 
 I. The Preamble ; A Declaration of the 
 Rights of the Inhabitants of the Commonwealth 
 of Massachusetts; The Frame of Government, 
 with its Preamble and Chapters numbered One, 
 Two, Three, Four, Five, Six, Seven, Eight, Nine, 
 Ten, Eleven, Twelve, Thirteen, and Fourteen, 
 entitled, respectively General Court, Senate, 
 House of Representatives, Governor, Lieuten 
 ant- Governor, Council, Secretary, Treasur 
 er, Attorney- General, Auditor, District- Attor 
 ney, and County Officers, Judiciary Power, 
 Qualifications of Voters and Elections, Oaths 
 and Subscriptions, Militia, The University at 
 Cambridge, the School Fund and the Encourage 
 ment of Literature, Miscellaneous Provisions, 
 Revisions and Amendments of the Constitution 
 as a distinct Proposition, numbered " One." 
 
 If this proposition, so submitted, shall be rati 
 fied and adopted by a majority of the legal voters 
 of the Commonwealth, present and voting there 
 on, at meetings duly called, then the same shall 
 be the Constitution of the Commonwealth of 
 Massachusetts. 
 
 II. The provision respecting the granting of 
 the writ of Habeas Corpus, as a Proposition, num 
 bered " Two." 
 
 If this proposition be ratified and adopted, it 
 shall be an addition to the provision respecting the 
 Habeas Corpus. 
 
 * Amendments adopted by the Convention, which stand 
 as separate articles or paragraphs, are enclosed in brack 
 ets, to distinguish them from existing provisions of the 
 Constitution. Where an amendment has been made, by 
 adding words to an article or paragraph in the existing Con 
 stitution, the amendment is printed in Italia. 
 
 III. The provision respecting the rights of 
 juries in criminal trials, as a Proposition, num 
 bered " Three." 
 
 If this proposition be ratified and adopted, it 
 shall be an addition to the article in the Declara 
 tion of Rights, respecting the rights of persons 
 charged with crimes. 
 
 IV. The provision respecting claims against 
 the Commonwealth, as a Proposition, numbered 
 " Four." 
 
 If this proposition be ratified and adopted, it 
 shall be an addition to Article XL, of the Decla 
 ration of Rights. 
 
 V. The provision respecting imprisonment for 
 debt, as a Proposition, numbered " Five." 
 
 If this proposition be adopted, it shall be an 
 addition to the Article in the Declaration of 
 Rights, respecting excessive bail and fines. 
 
 VI. The provision respecting sectarian schools, 
 as a Proposition, numbered " Six." 
 
 If this proposition be ratified and adopted, it 
 shall be an addition to Article IV. of Chapter 
 XII., entitled, "The University at Cambridge, 
 The School Fund, and The Encouragement of 
 Literature." If proposition numbered " One " 
 shall not be adopted, the proposition numbered 
 " Six," shall be added as an amendment to the 
 Constitution. 
 
 VII. The provision respecting corporations, as 
 a Proposition, numbered " Seven." 
 
 VIII. The provision respecting banks and 
 banking, as a Proposition, numbered "Eight." 
 
 If the Propositions numbered " Seven " and 
 " Eight" be ratified and confirmed, they shall be 
 added as separate articles, or if either of them be 
 ratified and confirmed, as an article in Chapter 
 XIII., entitled "Miscellaneous Provisions." 
 
 If Proposition numbered "One " be not rati 
 fied and confirmed, they shall be added as amend 
 ments to the Constitution. 
 
 Resolved, That at the meetings for the election 
 of Governor, Senators, and Representatives to the 
 General Court, to be holden on the second Mon 
 day of November, in the year one thousand eight 
 
738 
 
 APPENDIX. 
 
 [1853. 
 
 CONSTITUTIONAL PROPOSITIONS. 
 
 hundred and fifty-three, the qualified voters of 
 the several towns and cities shall vote by ballot 
 upon each of the propositions aforesaid, for or 
 against the same, which ballots shall be inclosed 
 within sealed envelopes, according to the pro 
 visions of an Act of this Commonwealth, passed on 
 the twenty-second day of May, in the year eighteen 
 hundred and fifty-one, and an Act passed the 
 twentieth day of May, in the year eighteen hun 
 dred and fifty-two, and no ballots not so inclosed 
 shall be received. And said votes shall be re 
 ceived, sorted, counted, declared, and recorded, 
 in open meeting, in the same manner as is by 
 law provided in reference to votes for governor, 
 and a true copy of the record of said votes, at 
 tested by the selectmen and town clerk of each 
 of the several towns, and the mayor and alder 
 men and city clerk of each of the several cities, 
 shall be sealed up by said selectmen and mayor 
 and aldermen, and directed to the Secretary of 
 the Commonwealth, with a superscription ex 
 pressing the purport of the contents thereof, and 
 delivered to the sheriff of the county within fif 
 teen days after said meetings, to be by him trans 
 mitted to the secretary s office, on or before the 
 third Monday of December next; or, the said 
 selectmen and mayor and aldermen shall them 
 selves transmit the same to the secretary s office, 
 on or before the day last aforesaid. 
 
 Resolved, That the Secretary shall deliver said 
 copies, so transmitted to him, to a Committee of 
 this Convention, consisting of the President of 
 the Convention, and twenty other members, to be 
 by him designated, who shall assemble at the State 
 House, on the third Monday of December next, 
 and open the same, and examine and count the 
 votes so returned ; and if it shall appear that 
 either of said propositions has been adopted by a 
 majority of votes, then the proposition so adopted 
 shall become and be either the whole or a portion 
 of the Constitution of this Commonwealth, as 
 hereinbefore provided, and the said Committee 
 shall promulgate the results of said votes upon 
 each of said proposition?, by causing the same to 
 be published in those newspapers in which the 
 laws are now published ; and shall also notify 
 the Governor and Legislature, as soon as may be, 
 of the said results ; and the Governor shall forth 
 with make public proclamation of the fact of the 
 adoption of either or all of said propositions, as 
 the whole or as parts of the Constitution of this 
 Commonwealth. 
 
 Resolved, That each of said propositions shall 
 be considered as a whole by itself, to be adopted 
 in the whole, or rejected in the whole. And 
 every voter shall vote on each proposition, by its 
 appropriate number, indicating upon his ballot 
 the subject of the proposition, and expressing in 
 writing or printing, opposite to each proposition, 
 the word Yes or No ; but the propositions shall 
 all be written or printed on one ballot, iu sub 
 stance, as follows : 
 
 CONSTITUTIONAL PROPOSITIONS. 
 
 Shall Proposition NUMBER ONE, containing the 
 
 Preamble, Declaration of Rights and Frame of 
 
 Government, stand as the Constitution of the 
 
 Commonwealth of Massachusetts } Yes or No. 
 
 Shall Proposition NUMBER Two, respecting the 
 Habeas Corpus, stand as part of the Constitu 
 tion ? Yes or No. 
 
 Shall Proposition NUMBER THRER, respecting the 
 Rights of Juries, stand as part of the Constitu 
 tion ? Yes or No. 
 
 Shall Proposition NUMBER FOUR, respecting 
 Claims against the Commonwealth, stand as part 
 of the Constitution ? - - - Y r es or No. 
 
 Shall Proposition NUMBER FIVE, respecting Im 
 prisonment for Debt, stand as part of the Con 
 stitution ? - - - - - Yes or No. 
 
 Shall Proposition NUMBER Six, respecting Sec 
 tarian Schools, stand as part of the Constitu 
 tion ? - Yes or No. 
 
 Shall Proposition NUMBER SEVEN, respecting the 
 Creation of Corporations, stand as part of the 
 Constitution ? - - Yes or No. 
 
 Shall Proposition NUMBER EIGHT, respecting the 
 Formation of Banks, and requiring Security 
 for Bank Bills, stand as part of the Constitu 
 tion ? Yes or No. 
 
 Resolved, That a printed copy of these resolu 
 tions, with the several constitutional propositions 
 annexed, shall be attested by the President and 
 Secretaries of the Convention, and transmitted by 
 them, as soon as may be, to the selectmen of each 
 town, and the mayor and aldermen of each city, 
 in the Commonwealth, whose duty it shall be 
 to insert a proper article in reference to the voting 
 upon said propositions, in the warrant calling the 
 meetings aforesaid, on the second Monday of 
 November next. 
 
 Proposition Number One. 
 
 CONSTITUTION, 
 
 Or Form of Government of the Commonwealth of 
 Massach usetts . 
 
 PREAMBLE. 
 
 The end of the institution, maintenance, and 
 administration 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 tranquillity, 
 their natural rights and the blessings of Hie : and 
 whenever these great objects are not obtained, the 
 people have a right to alter the government, and 
 to take measures necessary for their safety, pros 
 perity, and happiness. 
 
 The body politic is formed by a voluntary as 
 sociation of individuals ; it 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. It is the duty of the people, 
 therefore, in framing a Constitution of govern 
 ment, to provide for an equitable mode of making 
 laws, as well as for an impartial interpretation, 
 ind a faithful execution of them, that every man 
 may, at all times, find his security in them. 
 
 We, therefore, the people of Massachusetts, ac- 
 
 
1853.] 
 
 APPENDIX. 
 
 739 
 
 CONSTITUTIONAL PROPOSITIONS. 
 
 knowledging, with grateful hearts, the goodness 
 of the great Legislator of the universe, in affording 
 us, in the course of his providence, an oppor 
 tunity, deliberately and peaceably, without fraud, 
 violence, or surprise, of entering into an original, 
 explicit, and solemn compact with each other ; 
 and of forming a new Constitution of civil gov 
 ernment for ourselves and posterity ; and de 
 voutly imploring his direction in so interesting a 
 design, do agree upon, ordain, and establish, the 
 following Declaration of Rights and Frame of 
 Government) as the CONSTITUTION of the COMMON 
 WEALTH OF MASSACHUSETTS. 
 
 A DECLARATION 
 
 Of the Rights of the Inhabitants of the Common 
 wealth of Massaclmsetts. 
 
 ARTICLE 1. All men are born free and equal, 
 and have certain natural, essential, and unaliena- 
 hle rights ; among which may be reckoned the 
 right of enjoying and defending their lives and 
 liberties ; that of acquiring, possessing, and pro 
 tecting property ; in fine, that of seeking and ob 
 taining their safety and happiness. 
 
 ART. 2. It is the right as well as the duty of 
 all men in society, publicly, and at stated seasons, 
 to worship the SUPREME BEING, the great Creator 
 and Preserver of the universe. And no subject 
 shall be hurt, molested, or restrained, in his per 
 son, liberty, or estate, for worshipping God in the 
 manner and season most agreeable to the dictates 
 of his own conscience ; or for his religious profes 
 sion or sentiments ; provided he doth not disturb 
 the public peace, or obstruct others in their re 
 ligious worship. 
 
 ART. 3. As the public worship of God, and 
 instructions in piety, religion, and morality, pro 
 mote the happiness and prosperity of a people, 
 and the security of a republican government ; 
 therefore, the several religious societies of this 
 Commonwealth, whether corporate or unincor- 
 porate, at any meeting legally warned and holden 
 for that purpose, shall ever have the right to elect 
 their pastors or religious teachers, to contract with 
 them for their support, to raise money for erect 
 ing and repairing houses for public worship, for 
 the maintenance of religious instruction, and for 
 the payment of necessary expenses : And all per 
 sons belonging to any religious society shall be 
 taken and held to be members, until they shall 
 file with the clerk of such society a written notice 
 declaring the dissolution of their membership, and 
 thenceforth shall not be liable for any grant or 
 contract which may be thereafter made or entered 
 into by such society : And all religious sects and 
 denominations, demeaning themselves peaceably, 
 and as good citizens of the Commonwealth, shall 
 be equally under the protection of the law ; and 
 no subordination of any one sect or denomination 
 to another shall ever be established by law. . 
 
 ART. 4. The people of this Commonwealth 
 have the sole and exclusive right of governing 
 themselves, as a free, sovereign, and independent 
 State ; and do, and forever hereafter shall, exer 
 cise and enjoy every power, jurisdiction, and 
 right, which is not, or may not hereafter, be by 
 
 them expressly delegated to the United States of 
 America, in Congress assembled. 
 
 ART. 5. All power residing originally in the 
 people, and being derived from them, the several 
 magistrates and officers of government, vested 
 with authority, whether legislative, executive, or 
 judicial, are their substitutes and agents, and are 
 at all times accountable to them. 
 
 ART. 6. No man, nor corporation, nor asso 
 ciation of men, have any other title to obtain ad 
 vantages, or particular and exclusive privileges, 
 distinct from those of the community, than what 
 arises from the consideration of services rendered 
 to the public ; and this title being in nature 
 neither hereditary, nor transmissible to children, 
 or descendants, or relations by blood, the idea of 
 a man being born a magistrate, lawgiver, or 
 judge, is absurd and unnatural. 
 
 ART. 7. Government is instituted for the com 
 mon good ; for the protection, safety, prosperity, 
 and happiness of the people ; and not for the 
 profit, honor, or private interest of any one man, 
 family, or class of men : Therefore the people 
 alone have an incontestible, unalienable, and in 
 defeasible right to institute government ; and to 
 reform, alter, or totally change the same, when 
 their protection, safety, prosperity, and happiness 
 require it. 
 
 ART. 8. In order to prevent those, who are 
 vested with authority, from becoming oppressors, 
 the people have a right, at such periods, and in 
 such manner as they shall establish by their frame 
 of government, to cause their public officers to 
 return to private life ; and to fill up vacant places 
 by certain and regular elections and appointments. 
 
 ART. 9. All elections ought to be free ; and 
 all the inhabitants of this Commonwealth, having 
 such qualifications as they shall establish by their 
 frame of government, have an equal right to elect 
 officers, and to be elected, for public employ 
 ments. 
 
 ART. 10. Each individual of the society has a 
 right to be protected by it in the enjoyment of his 
 life, liberty, and property, according to standing 
 laws. He is obliged, consequently, to contribute 
 his share to the expense of this protection ; to 
 give his personal service, or an equivalent, when 
 necessary : but no part of the property of any 
 individual can, with justice, be taken from him, 
 or applied to public uses, without his own con 
 sent, or that of the representative body of the 
 people. In fine, the people of this Common 
 wealth are not controllable by any other laws, 
 than those to which their constitutional represen 
 tative body have given their consent. And when 
 ever the public exigencies require that the prop 
 erty of any individual should be appropriated to 
 public uses, he shall receive a reasonable compen 
 sation therefor. 
 
 ART. 11. Every subject of the Commonwealth 
 ought to find a certain remedy, by having re 
 course to the laws, for all injuries or wrongs 
 which he may receive in his person, property, or 
 character. He ought to obtain right and justice 
 freely, and without being obliged to purchase it ; 
 completely, and without any denial ; promptly, 
 and without delay ; conformably to the laws. 
 
740 
 
 APPENDIX. 
 
 [1853. 
 
 CONSTITUTIONAL PROPOSITIONS. 
 
 ART. 12. The privilege and benefit of the 
 writ of habeas corpus shall be enjoyed, in this 
 Commonwealth, in the most free, easy, cheap, ex 
 peditious, and ample manner ; and shall not be 
 suspended by the Legislature, except upon the 
 most urgent and pressing occasions, and for a 
 limited time not exceeding twelve months. 
 
 ART. 13. No subject shall be held to answer 
 for any crimes or offence, until the same is fully 
 and plainly, substantially and formally, described 
 to him ; or be compelled to accuse, or furnish 
 evidence against himself: and every subject shall 
 have a right to produce all proofs, that may be 
 favorable to him ; to meet the witnesses against 
 him face to face, and to be fully heard in his 
 defence by himself or his counsel, at his election : 
 and no subject shall be arrested, imprisoned, de 
 spoiled, or deprived of his property, immunities, 
 or privileges, put out of the protection of the law, 
 exiled, or deprived of his life, liberty, or estate, 
 but by the judgment of his peers, or the law of 
 the land. And the legislature shall not make any 
 law that shall subject any person to a capital or 
 infamous punishment, excepting for the govern 
 ment of the army and navy, without trial by 
 
 jury. 
 
 ART. 14. In criminal prosecutions, the verifi 
 cation of facts in the vicinity where they happen, 
 is one of the greatest securities of the life, liberty 
 and property of the citizen. 
 
 ART. 15. Every subject has a right to be se 
 cure from all unreasonable searches and seizures 
 of his person, his houses, his papers, and all his 
 possessions. All warrants, therefore, are contrary 
 to this right, if the cause or foundation of them 
 be not previously supported by oath or affirma 
 tion; and if the order in the warrant to a civil 
 officer, to make search in suspected places, or to 
 arrest one or more suspected persons, or to seize 
 their property, be not accompanied with a special 
 designation of the persons or objects of search, 
 arrest, or seizure ; and no warrant ought to be 
 issued but in cases, and with the formalities, pre 
 scribed by the laws. 
 
 ART. 16. In all controversies concerning prop 
 erty, and in all suits between two or more per 
 sons, except in cases in which it has heretofore 
 been otherways used and practised, the parties 
 have a right to a trial by jury ; and this method 
 of procedure shall be held sacred, unless, in causes 
 arising on the high seas, and such as relate to 
 mariners wages, the Legislature shall hereafter 
 find it necessary to alter it. 
 
 ART. 17. The liberty of the press is essential 
 to the security of freedom in a state : it ought not, 
 therefore, to be restrained in this Commonwealth. 
 
 ART. 18. The people have a right to keep and 
 to bear arms for the common defence : and, as in 
 time of peace, armies are dangerous to liberty, 
 they ought not to be maintained without the con 
 sent of the Legislature ; and the military power 
 shall always be held in an exact subordination to 
 the civil authority, and be governed by it. 
 
 ART. 19. A frequent recurrence to the funda 
 mental principles of the Constitution, and a con 
 stant adherence to those of piety, justice, moder 
 ation, temperance, industry, and frugality, are 
 
 absolutely necessary to preserve the advantages of 
 liberty, and to maintain a free government. The 
 people ought, consequently, to have a particular 
 attention to all those principles, in the choice of 
 their officers and representatives ; and they have 
 a right to require of their lawgivers and magis 
 trates, an exact and constant observance of them, 
 in the formation and execution of the laws neces 
 sary for the good administration of the Common 
 wealth. 
 
 ART. 20. The people have a right, in an 
 orderly and peaceable manner, to assemble to con 
 sult upon the common good ; give instructions to 
 their representatives ; and to request of the legis 
 lative body, by the way of addresses, petitions, or 
 remonstrances, redress of the wrongs done them, 
 and of the grievances they suffer. 
 
 ART. 21. The power of suspending the laws, 
 or the execution of the laws, ought never to be 
 exercised but by the Legislature, or by authority 
 derived from it, to be exercised in such particular 
 cases only as the Legislature shall expressly pro 
 vide for. 
 
 ART. 22. The freedom of deliberation, speech 
 and debate, in either House of the Legislature, is 
 so essential to the rights of the people, that it 
 cannot be the foundation of any accusation or 
 prosecution, action or complaint, in any other 
 court or place whatsoever. 
 
 ART. 23. The Legislature ought frequently to 
 assemble for the redress of grievances, for correct 
 ing, strengthening, and confirming the laws, and 
 for making new laws, as the common good may 
 require. 
 
 ART. 24. No subsidy, charge, tax, impost, or 
 duties, ought to be established, fixed, laid, or 
 levied, under any pretext whatsoever, without the 
 consent of the people, or their representatives in 
 in the Legislature. 
 
 ART. 25. Laws made to punish for actions 
 done before the existence of such laws, and which 
 have not been declared crimes by preceding laws, 
 are unjust, oppressive, and inconsistent with the 
 fundamental principles of a free government. 
 
 ART. 26. No subject ought, in any case, or in 
 any time, to be declared guilty of treason or 
 felony by the Legislature. 
 
 ART. 27. No magistrate or court of law shall 
 demand excessive bail or sureties, impose exces 
 sive fines, or inflict cruel or unusual punish 
 ments. 
 
 ART. 28. In time of peace, no soldier ought 
 to be quartered in any house without the consent 
 of the owner ; and in time of war, such quarters 
 ought not to be made but by the civil magistrate, 
 in a manner ordained by the Legislature. 
 
 ART. 29. No person can in any case be sub 
 jected to law martial, or to any penalties or pains, 
 by virtue of that law, except those employed in 
 the army or navy, and except the militia in actual 
 service, but by authority of the Legislature. 
 
 ART. 30. It is essential to the preservation of 
 the rights of every individual, his life, liberty, 
 property and character, that there be an impartial 
 interpretation of the laws, and administration of 
 justice. It is the right of every citizen to be tried 
 by judges as free, impartial and independent, as 
 
1853.] 
 
 APPENDIX. 
 
 741 
 
 CONSTITUTIONAL PROPOSITIONS. 
 
 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 Con 
 stitution^ and should have honorable salaries, 
 which shall not be diminished during their continu 
 ance in office. 
 
 AHT. 31. In the government of this Com 
 monwealth, the legislative department shall never 
 exercise the executive and judicial powers, or 
 either of them : the executive shall never exer 
 cise the legislative and judicial power, or either of 
 them : the judicial shall never exercise the legis 
 lative and executive powers or either of them : to 
 the end it may be a government of laws and not 
 of men. 
 
 THE FRAME OF GOVERNMENT. 
 
 THE people inhabiting the territory formerly 
 called the Province of Massachusetts Bay, do 
 hereby solemnly and mutually agree with each 
 other, to form themselves into a free, sovereign 
 and independent body politic or state, by the 
 name of THE COMMONWEALTH OF MAS 
 SACHUSETTS. 
 
 CHAPTER I. 
 General Court. 
 
 ARTICLE 1. The department of legislation shall 
 be styled the General Court of Massachusetts. 
 It shall consist of two branches, a Senate and a 
 House of Representatives, each of which shall 
 have a negative upon the other. 
 
 ART. 2. The political year shall begin on the first 
 Wednesday in January ; and the General Court 
 shall assemble every year on the said first Wed 
 nesday in January, and shall be dissolved on the 
 day next preceding the first Wednesday in Jan 
 uary following, without any proclamation or other 
 act of the governor. But nothing herein con 
 tained shall prevent the General Court from as 
 sembling at such other times as they shall judge 
 necessary, or when called together by the gov 
 ernor. 
 
 [ART. 3. The compensation of members of 
 the General Court shall be established by stand 
 ing laws ; but no act increasing the compensation 
 shall apply to the General Court which passes such 
 act ; and no compensation shall be allowed for 
 attendance of members at any one session for a 
 longer time than one hundred days.] 
 
 ART. 4. No bill or resolve of the Senate or 
 House of Representatives shall become a law, 
 and have force as such, until it shall have been 
 laid before the governor for his revisal : and if he, 
 upon such revision, approve thereof, he shall 
 signify his approbation by signing the same. But 
 if he have any objection to the passing of such 
 bill or resolve, he shall return the same, together 
 with his objections thereto, in writing, to the 
 Senate or House of Representatives, in whichso 
 ever the same shall have originated ; who shall 
 enter the objections sent down by the governor, 
 
 at large, on their records, and proceed to recon 
 sider the said bill or resolve : but if, after such 
 reconsideration, two- thirds of the said Senate or 
 House of Representatives, present, shall, notwith 
 standing the said objections, agr.ee to pass the 
 same, it shall, together with the objections, be sent 
 to the other branch of the Legislature, where it 
 shall also be reconsidered, and if approved by 
 two- thirds of the members present, shall have the 
 force of a law : but, in all such cases, the votes of 
 both Houses shall be determined by yeas and 
 nays ; and the names of the persons voting for, 
 or against, the said bill or resolve, shall be entered 
 upon the public records of the Commonwealth. 
 
 And in order to prevent unnecessary delays, if 
 any bill or resolve shall not be returned by the 
 governor, within five days after it shall have been 
 presented to him, the same shall have the force of 
 a law. 
 
 But if any bill or resolve shall be objected to 
 and not approved by the governor, and if the 
 General Court shall adjourn within five days after 
 the same shall have been laid before the governor 
 for his approbation, and thereby prevent his re 
 turning it, with his objections, as provided by the 
 Constitution, such bill or resolve shall not become 
 a law, nor have force as such. 
 
 ART. 5. The General Court shall forever have 
 full power and authority to erect and constitute 
 judicatories and courts of record, or other courts* 
 to be held in the name of the Commonwealth, for 
 the hearing, trying, and determining of all manner- 
 of crimes, offences, pleas, processes, plaints, ac 
 tions, matters, causes and things, whatsoever, 
 arising or happening within the Commonwealth, 
 or between or concerning persons inhabiting, or 
 residing, or brought within the same ; whether 
 the same be criminal or civil, or whether the said 
 crimes be capital or not capital, and whether the 
 said pleas be real, personal or mixt ; and for the 
 awarding and making out of execution there 
 upon : to which courts and judicatories are hereby 
 given and granted full power and authority, from 
 time to time, to administer oaths or affirmations, 
 for the better discovery of truth in any matter in 
 controversy, or depending before them. 
 
 [ART. 6. The General Court shall have power 
 to make laws regulating marriage, divorce and 
 alimony, but shall in no case decree a divorce, or 
 hear and determine any causes touching the va 
 lidity of the marriage contract.] 
 
 ART. 7. And further, full power and author 
 ity are hereby given and granted to the said Gen 
 eral Court, from time to time, to make, ordain, 
 and establish, all manner of wholesome and rea 
 sonable orders, laws, statutes, and ordinances, 
 directions and instructions, either with penalties 
 or without ; so as the same be not repugnant or 
 contrary to this Constitution, as they shall judge 
 to be for the good and welfare of this Common 
 wealth, and for the government and ordering 
 thereof, and of the subjects of the same, and for 
 the necessary support and defence of the govern 
 ment thereof; and to name and settle annually, 
 or provide, by fixed laws, for the naming and 
 settling all civil officers within the said Common 
 wealth, the election and constitution of whom 
 
742 
 
 APPENDIX. 
 
 [1853. 
 
 CONSTITUTIONAL PROPOSITIONS. 
 
 are not hereafter in this form of government 
 otherwise provided for ; and to set forth the sev 
 eral duties, powers and limits, of the several civil 
 and military officers of this Commonwealth, and 
 the forms of such oaths or affirmations as shall be 
 respectively administered unto them for the ex 
 ecution of their several offices and places, so as 
 the same be not repugnant or contrary to this Con 
 stitution ; and to impose and levy proportional and 
 reasonable assessments, rates, and taxes, upon all 
 the inhabitants of, and persons resident, and 
 estates lying, within the said Commonwealth ; 
 and also to impose, and levy, reasonable duties 
 and excises upon any produce, goods, wares, mer 
 chandise, and commodities, whatsoever, brought 
 into, produced, manufactured, or being within the 
 same ; to be issued and disposed of by warrant, 
 under the hand of the governor of this Common 
 wealth for the time being, with the advice and 
 consent of the Council, for the public service, in 
 the necessary defence and support of the govern 
 ment of the said Commonwealth, and the pro 
 tection and preservation of the subjects thereof, 
 according to such acts as are or shall be in force 
 within the same.] 
 
 ART. 8. The General Court shall have full 
 power and authority to erect and constitute mu 
 nicipal or city governments in any corporate town 
 or towns in this Commonwealth, and to grant to 
 the inhabitants thereof such power, privileges 
 and immunities, not repugnant to the Constitu 
 tion, as the General Court shall deem necessary 
 or expedient for the regulation and government 
 thereof, and to prescribe the manner of calling 
 and holding public meetings of the inhabitants 
 in wards, or otherwise, for the election of officers 
 under the Constitution, and the manner of re 
 turning the votes given at such meetings : pro 
 vided, that no such government shall be erected 
 or constituted in any town not containing twelve 
 thousand inhabitants ; nor unless it be with the 
 tonsent and on the application of a majority of 
 che inhabitants of such town, present and voting 
 thereon, pursuant to a vote at a meeting duly 
 warned and holden for that purpose : and pro 
 vided, also, that all by-laws, made by such mu 
 nicipal or city government, shall be subject, at all 
 times, to be annulled by the General Court. 
 
 ART. 9. Each branch of the General Court 
 shall have authority to punish, by imprisonment, 
 every person, not one of its members, who shall 
 be guilty of disrespect thereto, by any disorderly 
 or contemptuous behavior, in its presence ; or 
 who, in the town or city where the General 
 Court is sitting, and during the time of its sitting, 
 shall threaten harm to the body or estate of any 
 of its members ; or assault any of them for any 
 thing said or done in its session ; or shall assault, 
 or arrest, any witness, or other person, ordered to 
 attend it, in his way in going, or returning ; or 
 who shall rescue any person arrested by its order : 
 provided, that no imprisonment, on its warrant or 
 order, for either of the above described offences, 
 shall be for a term exceeding thirty days ; and the 
 governor and Council shall have the same author 
 ity to punish in like cases. And no member, 
 during his going to, returning from, or attending, 
 
 the General Court, shall be arrested, or held to 
 bail, on mesne process, 
 
 ART. 10. Each branch of the General Court 
 may try, and determine all cases where their 
 rights and privileges are concerned, and which, 
 by the Constitution, they have authority to 
 try and determine, by committees of their own 
 members, or in such other way as they may re 
 spectively think best. 
 
 ART. 11. Each branch shall be the final judge 
 of the elections, returns, and qualifications, of its 
 members, as pointed out in the Constitution ; 
 shall choose a presiding officer from among its 
 members ; appoint its other officers ; and settle 
 its rules and orders of proceeding; and shall 
 have power to adjourn, provided, such adjourn 
 ment shall not exceed three days at a time. 
 
 ART. 12. And whereas the elections appointed 
 to be made by this Constitution, on the first 
 Wednesday in January annually, by the two 
 Houses of the Legislature, may not be completed 
 on that day, the said elections may be adjourned 
 from day to day until the same shall be com 
 pleted. 
 
 [ART. 13. In all elections by the General 
 Court, or either branch thereof, a majority of 
 votes shall be required, and the members shall 
 vote viva vocc.] 
 
 ART. 14. The enacting style, in making and 
 passing all acts, statutes and laws, shall be : BB 
 
 IT ENACTED BY THE GENERAL COURT OF MASSA 
 CHUSETTS. 
 
 CHAPTER II. 
 
 Senate. 
 
 [ARTICLE 1. There shall be annually elected 
 by the inhabitants of this Commonwealth, quali 
 fied as in this Constitution is provided, forty per 
 sons to be senators, for the year ensuing their 
 election ; and the Senate shall be the first branch 
 of the General Court. For this purpose, the 
 General Court, holden next after the adoption of 
 this Constitution, and next after each decennial 
 census thereafter, shall divide the Commonwealth 
 into forty districts, composed of contiguous terri 
 tory, and as nearly equal in population as may be : 
 provided, that no town or ward of a city be di 
 vided therefor. Each district shall be entitled to 
 elect one serator, who shall have been an inhabi 
 tant of this Commonwealth for five years immedi 
 ately preceding his election, and at the time of his 
 election shall be an inhabitant of the district for 
 which he is chosen.] 
 
 ART. 2. There shall be a meeting on the Tues 
 day next after the first Monday in November, an 
 nually, forever, of the inhabitants of each town 
 and city in this Commonwealth, to be called and 
 warned in due course of law, at least seven days 
 before the day of such meeting, for the purpose of 
 electing senators ; and at such meetings every 
 qualified voter shall have a right to give in his 
 vote for a senator for the district of which he is an 
 inhabitant. 
 
 The selectmen of the several towns shall pre 
 side at the town meetings impartially ; and shall 
 
1853.] 
 
 APPENDIX. 
 
 743 
 
 CONSTITUTIONAL PROPOSITIONS. 
 
 receive the votes of all the inhabitants of such 
 towns present and qualitied to vote for a senator, 
 and shall sort and count them in open town meet 
 ing, and in presence of the town clerk, who shall 
 make a fair record, in presence of the select 
 men, and, in open town meeting, of the name of 
 every person voted for, and of the number of 
 votes against his name ; and a fair copy of this 
 record shall be attested by the selectmen and the 
 town clerk, and shall be sealed up, directed to the 
 Secretary of the Commonwealth for the time 
 being, with a superscription expressing the pur 
 port of the contents thereof, and delivered by the 
 town clerk of said towns to the sheriff of the 
 county in which such town lies, thirty days at 
 least before the first Wednesday in January an 
 nually ; or it shall be delivered into the Secretary s 
 office seventeen days at least before the said first 
 Wednesday in January ; and the sheriff of each 
 county shall deliver all such certificates, by him 
 received, into the Secretary s office, seventeen days 
 before the said first Wednesday in January. 
 
 And the inhabitants of plantations unincor 
 porated, qualified as this Constitution provides, 
 shall have the same privilege of voting for a sena 
 tor, in the plantations where they reside, as town 
 inhabitants have in their respective towns ; and 
 the plantation meetings for that purpose shall be 
 held annually on the same Tuesday next after the 
 first Monday in November, at such place in the 
 plantations respectively as the assessors thereof 
 shall direct; which assessors shall have like 
 authority for notifying the voters, collecting and 
 returning the votes, as the selectmen and town 
 clerks have in their several towns, by this Consti 
 tution. And all other persons living in places 
 unincorporated, (qualified as aforesaid,) shall have 
 the privilege of giving in their votes for a senator, 
 in the town where the inhabitants of such unin 
 corporated places shall be assessed, and be no 
 tified of the place of meeting by the selectmen 
 of the said town for that purpose, accordingly. 
 
 [ART. 3. The Governor and Council shall, as 
 soon as may be, examine the returned copies of 
 the record provided for in article second of this 
 chapter, and ascertain who shall have received the 
 largest number of votes in each of the several sena 
 torial 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 ; 
 and the governor shall cause each of said persons, 
 so appearing to be elected, to be notified at least 
 fourteen days before the first Wednesday in Jan 
 uary of each year, to attend on that day, and take 
 his seat accordingly. 
 
 ART. 4r. Not less than twenty- one members 
 shall constitute a quorum for doin.g business ; but 
 a less number may organize, adjourn from day to 
 day, and compel the attendance of absent mem 
 bers.] 
 
 ARTT 5. The Senate shall be a court with full 
 authority to hear and determine all impeachments 
 made by the House of Representatives against 
 any officer or officers of the Commonwealth, for 
 misconduct and maladministration in their offices ; 
 but, previous to the trial of every impeachment, 
 the members of the Senate shall respectively be 
 sworn, truly and impartially to try and determine 
 
 the charge in question, according to eviderce 
 Their judgment, however, shall not extend far 
 ther than to removal from office and disqualifica 
 tion to hold or enjoy any place of honor, trust, or 
 profit, under this Commonwealth : but the party 
 so convicted, shall be, nevertheless, liable to in 
 dictment, trial, judgment and punishment, ac 
 cording to the laws of the land. 
 
 CHAPTER III. 
 House of Representatives. 
 
 ARTICLE 1. There shall be, in the legislature 
 of this Commonwealth, a representation of the 
 people, annually elected, and founded upon the 
 principle of equality. 
 
 ART. 2. And in order to provide for a repre 
 sentation of the citizens of this Commonwealth, 
 founded upon the principle of equality, every 
 corporate town containing [less than one thou 
 sand inhabitants, may elect one representative in 
 the year when the valuation of estates shall be 
 settled, and, in addition thereto, one representa 
 tive five years in every ten years. Every town 
 containing* one thousand inhabitants and less than 
 four thousand, may elect one representative. 
 Every town containing four thousand inhabitants 
 and less than eight thousand, may elect two rep 
 resentatives. Every town containing eight thou 
 sand inhabitants and less than twelve thousand, 
 may elect three representatives. Every city or 
 town containing twelve thousand inhabitants, 
 may elect four representatives. Every city or 
 town containing over twelve thousand inhabi 
 tants, may elect one additional representative 
 for every four thousand inhabitants it shall 
 contain over twelve thousand. Any two towns, 
 each containing less than one thousand inhabi 
 tants, may, by consent of a majority of the 
 legal voters present at a legal meeting, in each 
 of said towns respectively, called for that pur 
 pose, form themselves into a representative dis 
 trict, to continue for the term of not less than 
 two years ; and such district shall have all the 
 rights, in regard to representation, which be 
 long to a town having one thousand inhabitants. 
 And this apportionment shall be based upon the 
 census of the year one thousand eight hundred 
 and fifty, until a new census shall be taken. 
 
 ART. 3. The Senate at its first session after 
 this Constitution shall have been adopted, and 
 at its first session after the next State census shall 
 have been taken, and at its first session next after 
 each decennial State census thereafterwards, shall 
 apportion the number of representatives to which 
 each town and city shall be entitled, and shall 
 cause the same to be seasonably published ; and 
 in all apportionments after the first, the numbers 
 which shall entitle any town or city, to two, three, 
 four, or more representatives, shall be increased 
 or diminished in the same proportion as the 
 population of the whole Commonwealth shall 
 have increased or decreased since the last preced 
 ing apportionment. 
 
 ART. 4. No town hereafter incorporated, con- 
 
744 
 
 APPENDIX. 
 
 [1853. 
 
 CONSTITUTIONAL PROPOSITIONS. 
 
 taining less than fifteen hundred inhabitants, shall 
 be entitled to choose a representative. 
 
 ART. 5. Each city in this Commonwealth, 
 shall be divided, by such means as the Legislature 
 may provide, into districts of contiguous territory, 
 as nearly equal in population as may be, for the 
 election of representatives, which districts shall 
 not be changed oftener than once in five years : 
 provided, however, that no one district shall be en 
 titled to elect more than three representatives.] 
 
 AKT. 6. The members of the House of Rep 
 resentatives shall be chosen on the Tuesday next 
 after the first Monday in November, annually ; but 
 meetings may be adjourned, if necessary, for the 
 choice of representatives, to the next day, and 
 again to the next succeeding day, but no farther : 
 but in case a second meeting shall be necessary 
 for the choice of representatives, such meetings 
 shall be held on the fourth Monday of the same 
 month of November. 
 
 ART. 7. 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, agreeably to this 
 Constitution. 
 
 ART. 8. Every member of the House of Rep 
 resentatives shall have been for one year, at least, 
 next preceding his election, an inhabitant of the 
 town he shall be chosen to represent. 
 
 ART. 9. The House of Representatives shall 
 be the grand inquest of this Commonwealth ; and 
 all impeachments made by them shall be heard 
 and tried by the Senate. 
 
 ART. 10. All money bills shall originate in 
 the Hoiise of Representatives ; but the Senate 
 may propose or concur with amendments, as on 
 other bills. 
 
 ART. 11. Not less than one hundred members 
 of the House of Representatives shall constitute a 
 quorum for doing business. 
 
 CHAPTER IV. 
 Governor. 
 
 ARTICLE 1. There shall be a supreme execu 
 tive magistrate, who shall be styled, THE GOVER 
 NOR OF THE COMMONWEALTH OF MASSACHUSETTS. 
 
 ART. 2. The governor shall be a citizen of 
 Massachusetts, and shall be chosen annually, by 
 the inhabitants of the toicns and cities of this Com- 
 momoealth, on the Tuesday next after the first Mon 
 day in November. He shall hold his office for 
 one year next following the first Wednesday of 
 January, and until another is chosen and qualified 
 in his stead. And no person shall be eligible to 
 this office, unless, at the time of his election, he 
 shall have been an inhabitant of this Common 
 wealth for seven years next preceding. 
 
 ART. 3. Those persons who shall be qualified 
 to vote for senators and representatives, within 
 the several towns of this Commonwealth, shall, 
 at a meeting to be called for that purpose, on the 
 Tuesday next after the first Monday in November, 
 annually, give in their votes for a governor, to 
 the selectmen, who shall preside at such meeting, 
 and the town clerk, in the presence and with the 
 assistance of the selectmen, shall, in open town 
 
 meeting, sort and count the votes, and form a list 
 of the persons voted for, with the number of votes 
 for each person against his name ; and shall make 
 a fair record of the same in the town books, and 
 a public declaration thereof in the said meeting ; 
 and shall, in the presence of the inhabitants, seal 
 up copies of the said list, attested by him and the 
 selectmen, and transmit the same to" the sheriff of 
 the county, thirty days at least before the first 
 Wednesday in January; and the sheriff shall 
 transmit the same to the secretary s office seven 
 teen days at least before the said first Wednesday 
 in January ; or the selectmen may cause returns 
 of the same to be made to the office of the secre 
 tary of the Commonwealth seventeen days at 
 least before the said day ; and the secretary shall 
 lay the same before the Senate and the House of 
 Representatives, on the first Wednesday in Jan 
 uary, to be by them examined ; and in case of an 
 election, the choice shall be by them declared and 
 published. 
 
 ART. 4. The governor shall have authority, 
 from lime to time, at his discretion, to assemble 
 and call together the councillors of this Common 
 wealth for the time being ; and the governor, 
 with the said councillors, or five of them at least, 
 shall, and may, from time to time, hold and keep 
 a Council, for the ordering and directing the 
 affairs of the Commonwealth, agreeably to the 
 Constitution and the laws of the land. 
 
 ART. 5. The governor, with advice of Council, 
 shall have full power and authority, during the 
 session of the General Court, to adjourn or pro 
 rogue the same to any time the two Houses shall 
 desire ; and in the recess of the said Court, to 
 prorogue the same from time to time, not exceed 
 ing ninety days in any one recess ; and to call it 
 together sooner than the time to which it may be 
 adjourned or prorogued, if the welfare of the 
 Commonwealth shall require the same; and in 
 case of any infectious distemper prevailing in the 
 place where the said Court is next, at any time 
 to convene, or any other cause happening, where 
 by danger may arise to the health or lives of the 
 members from their attendance, he may direct the 
 session to be held at some other, the most conve 
 nient place within the State. 
 
 ART. 6. In cases of disagreement between the 
 two Houses, with regard to the necessity, expe 
 diency or time of adjournment, or prorogation, 
 the governor, with advice of the Council, shall 
 have a right to adjourn or prorogue the General 
 Court, not exceeding ninety days, as he shall de 
 termine the public good shall require. 
 
 ART. 7. The power of pardoning offences, ex 
 cept such as persons may be convicted of before 
 the Senate, by an impeachment of the House, 
 shall be in the governor, by and with the advice 
 of Council ; but no charter of pardon, granted by 
 the governor, with advice of the Council, before 
 conviction, shall avail the party pleading the same, 
 notwithstanding any general or particular ex 
 pressions contained therein, descriptive of the 
 offence or offences intended to be pardoned. 
 
 ART. 8. Notaries public shall be appointed by 
 the governor, in the same manner as judicial offi 
 cers are appointed, and shall hold their offices 
 during seven years, unless sooner removed by the 
 
1853.] 
 
 APPENDIX. 
 
 745 
 
 CONSTITUTIONAL PROPOSITIONS. 
 
 governor, with the consent of the Council, upon 
 the address of both Houses of the General Court. 
 
 ART. 9. Coroners shall be nominated and ap 
 pointed by the governor, by and with the advice 
 and consent of the Council ; and every such nom 
 ination shall be made by the governor, and made 
 at least seven clays prior to such appointment. 
 
 ART. 10. No moneys shall be issued out of 
 the treasury of this Commonwealth and disposed 
 of, (except such sums as may be appropriated for 
 the redemption of bills of credit or treasurer s 
 notes, or for the payment of interest arising there 
 on,) but by warrant under the hand of the gov 
 ernor for the time being, with the advice and con 
 sent of the Council, for the necessary defence and 
 support of the Commonwealth ; and for the pro 
 tection and preservation of the inhabitants thereof, 
 agreeably to the acts and resolves of the General 
 Court. 
 
 ART. 11. All public boards, the commissary- 
 general, all superintending officers of public mag 
 azines and stores, belonging to this Common 
 wealth, and all commanding officers of forts and 
 garrisons within the same, shall, once in every 
 three months, officially and without requisition, 
 and at other times, when required by the gover 
 nor, deliver to him an account of all goods, 
 stores, provisions, ammunition, cannon with their 
 appendages, and small arms with their accoutre 
 ments, and of all other public property whatever 
 under their care, respectively ; distinguishing the 
 quantity, number, quality and kind of each, as 
 particularly as may be ; together with the condi 
 tion of such forts and garrisons ; and the said 
 commanding officer shall exhibit to the governor, 
 when required by him, true and exact plans of 
 such forts, and of the land and sea, or harbor or 
 harbors, adjacent. 
 
 And the said boards, and all public officers, 
 shall communicate to the governor, as soon as 
 may be after receiving the same, all letters, des 
 patches, and intelligences of a public nature, 
 which shall be directed to them respectively. 
 
 ART. 12 As the public good requires that the 
 governor should not be under the undue influence 
 of any of the members of the General Court, by 
 a dependence on them for his support that he 
 should, in all cases, act with freedom for the ben 
 efit of the public that he should not have his 
 attention necessarily diverted from that object to 
 his private concerns and that he should main 
 tain the dignity of the Commonwealth in the 
 character of its chief magistrate it is necessary 
 that he should have a:\ honorable stated salary, 
 of a fixed and permanent value, amply sufficient 
 for those purposes, and established by standing 
 laws : and it shall be among the first acts of the 
 General Court, after the commencement of this 
 Constitution, to establish such salary by law ac 
 cordingly. 
 
 CHAPTER V. 
 Lieutenant- Governor. 
 
 ARTICLE 1. There shall be annually elected a 
 Lieutenant- Governor of the Commonwealth of 
 
 50 3 
 
 Massachusetts, who shall be qualified in the same 
 manner with the governor ; and the day and 
 manner of his election, the qualifications of the 
 voters, the return of the votes, and the declaration 
 of the election, shall be the same as in the election 
 of a governor. 
 
 [And the lieutenant-governor shall hold his 
 office for one year next following the first 
 Wednesday of January, and until another is 
 chosen and qualified in his stead.] 
 
 ART. 2. The governor, and in his absence, 
 the lieutenant-governor, shall be president of the 
 Council, but shall have no vote in Council ; and 
 the lieutenant-governor shall always be a member 
 of the Council, except when the chair of the gov 
 ernor shall be vacant. 
 
 ART. 3. Whenever, by reason of sickness or 
 absence from the Commonwealth, or otherwise, 
 the governor shall be unable to perform his offi 
 cial duties, the lieutenant-governor, for the time 
 being, shall have and exercise all the powers and 
 authorities, and perform all the duties of governor; 
 and whenever the chair of the governor shall be 
 vacant, by reason of his resignation, death, or 
 removal from office, the lieutenant-governor shall 
 bs governor of the Commonwealth. 
 
 CHAPTER VI. 
 Council. 
 
 ARTICLE 1. There shall be a Council for ad 
 vising the governor in the executive part of the 
 government, to consist of eight persons besides 
 the lieutenant-governor, whom the governor for 
 the time being, shall have full power and author- 
 it) , from time to time, at his discretion, to assem 
 ble and call together ; and the governor, with the 
 said councillors, or five of them at least, shall 
 and may, from time to time, hold and keep a 
 Council, for the ordering and directing the affairs 
 of the Commonwealth, according to the laws of 
 the land. 
 
 [ART. 2. Eight councillors shall be annually 
 chosen by the people ; and for that purpose the 
 State shall be divided by the General Court into 
 eight districts, each district to consist of five con 
 tiguous senatorial districts, and entitled to elect 
 one councillor, who shall hold his office for one 
 year next following the first Wednesday in Jan 
 uary, and until a successor is chosen and quali 
 fied in his stead.] 
 
 ART. 3. No person shall be elected a council 
 lor who has not been an inhabitant of this Com 
 monwealth for the term of five years immediately 
 preceding his election. 
 
 [ART. 4. The day and manner of the election 
 of councillors, the qualifications of the voters, the 
 return of the votes, and the declaration of the 
 elections, shall be the same as are required in the 
 election of senators ; and the person having the 
 highest number of votes shall be declared to be 
 elected. 
 
 ART. 5. No councillor, during the time for 
 which he is elected, shall be appointed on any 
 commission or to any place and receive compen 
 sation therefor.] 
 
746 
 
 APPENDIX. 
 
 [1853. 
 
 CONSTITUTIONAL PROPOSITIONS. 
 
 ART. 6. The councillors, in the civil arrange 
 ments of the Commonwealth, shall have rank 
 next after the lieutenant-governor. 
 
 ART. 7. The resolutions and advice of the 
 Council shall be recorded in a register, and signed 
 by the members present ; and any member of the 
 Council may insert his opinion contrary to the 
 resolution of the majority. This record shall 
 always be subject to public examination, and may 
 be called for by either House of the Legisla 
 ture. 
 
 AKT. 8. Whenever the office of the governor 
 and lieutenant-governor shall be vacant, by rea 
 son of death, absence, or otherwise, then the 
 Council, or the major part of them, shall, during 
 such vacancy, have full power and authority, to 
 do, and execute all and every such acts, matters 
 and tilings, as the governor or the lieutenant-gov 
 ernor might or could, by virtue of this Constitu 
 tion, do or execute, if they, or either of them, 
 were personally present. 
 
 CHAPTER VII. 
 
 Secretary, Treasurer, Attorney- General, Auditor, 
 District- Attorney, and County Officers. 
 
 [ARTICLE 1. The secretary, treasurer, auditor 
 and attorney- general, shall be chosen by the peo 
 ple, annually on the Tuesday next after the first 
 Monday in November ; and they shall hold their 
 offices, respectively, for one year next following 
 the first Wednesday in the succeeding January, 
 and until their successors are chosen and qualified 
 in their stead. 
 
 The day and manner of their election, the 
 qualifications of the voters, the return of the votes, 
 and the declaration of the elections, shall be the 
 same as are required in the election of governor.] 
 
 ART. 2. No man shall be eligible as treasurer, 
 more than five years successively. 
 
 ART. 3. The records of the Commonwealth 
 shall be kept in the office of the secretary, who 
 may appoint his deputies, for whose conduct he 
 shall be accountable; and he shall attend the 
 governor and Council, the Senate and House of 
 Itepresentatives, in person, or by his deputies, as 
 they shall respectively require. 
 
 [ART. 4. Judges of probate, registers of pro 
 bate, sheriffs, clerks of the courts, commissioners 
 of insolvency, district-attorneys, registers of deeds, 
 county treasurers, and county commissioners, 
 shall be elected triennially by the people of their 
 respective counties and districts, on the Tuesday 
 next after the first Monday in November, and 
 shall hold their offices, respectively, for three years 
 next following the first Wednesday in, the 
 succeeding January, and until their respective 
 successors are chosen end qualified in their 
 stead. 
 
 The manner of their election, the qualifications 
 of the voters, the return of the votes, and the 
 declaration of the elections, shall be the same as 
 are required in the election of senators ; and the 
 person having the highest number of votes shall 
 be elected.] 
 
 CHAPTER VIII. 
 Judiciary Power. 
 
 [ARTICLE 1. The judicial power of the Com 
 monwealth shall be vested in a Supreme Judicial 
 Court, and such other courts as the legislature 
 may from time to time establish.] 
 
 ART. 2. The tenure that all commission officers 
 shall by law have in their offices, shall be ex 
 pressed in their respective commissions. 
 
 All judicial officers, duly appointed, commis 
 sioned and sworn, shall hold their offices for the 
 term of ten years, excepting such concerning 
 whom there is different provision made in this 
 Constitution. And upon the expiration of siich 
 term they may be reappointed ; and all judicial 
 officers for whose appointment a different provision 
 is not made in this Constitution, shall be nominated 
 and appointed by the governor, by and with the 
 advice and consent of the Council, and they may be 
 removed by the governor, with consent of the 
 Council, upon the address of both Houses of the 
 Legislature. 
 
 [ART. 3. The present justices of the Supreme 
 Judicial Court shall hold their offices according to 
 their respective commissions ; and the present 
 justices of the Court of Common Pleas shall hold 
 their offices by the same tenure, while the law 
 establishing the said Court of Common Pleas 
 shall continue. All nominations of judicial offi 
 cers, whose term of office is by this Constitution 
 limited to ten years, shall be publicly announced 
 at least seven days before their appointment ; and 
 no person who shall have been commissioned after 
 the tenth day of August, in the year one thousand 
 eight hundred and fifty- three, shall hold by any 
 longer tenure of office than the term of ten years. 
 
 ART. 4. Neither the governor and Council, 
 nor the two branches of the Legislature, or either 
 of them, shall hereafter propose questions to 
 justices of the Supreme Judicial Court, and re 
 quire their opinions thereon.] 
 
 ART. o. The judges of probate of wills, and 
 for granting letters of administration, shall hold 
 their courts at such place or places, on fixed days, 
 as the convenience of the people shall require ; 
 and the Legislature shall from time to time, here 
 after, appoint such times and places ; until which 
 appointments, the said courts shall be holden at 
 the times and places which the respective judges 
 shall direct. 
 
 [ART. 6. Justices of the peace, justices of the 
 peace and quorum, justices of the peace through 
 out the Commonwealth, and commissioners to 
 qualify civil officers, may be appointed by the 
 governor and Council for a term of seven years ; 
 and upon the expiration of any commission, the 
 same may be renewed ; and those now in office 
 shall continue therein according to the tenure of 
 their respective commissions : provided, that the 
 jurisdiction of the justices named in this article, 
 shall not extend to the hearing or trial of any 
 causes, or the issuing of warrants in criminal 
 cases. 
 
 ART. 7. Trial justices shall be elected by the 
 legal voters of the several towns and cities, where, 
 at the time of such election there is no Police 
 Court established by law, who shall hold their 
 
1853.] 
 
 APPENDIX. 
 
 747 
 
 CONSTITUTIONAL PROPOSITIONS. 
 
 offices for a term of three years, and have the 
 same jurisdiction, powers, and duties, as are now 
 exercised by justices of the peace, or such as may 
 hereafter be established by law. Every city or 
 town, authorized as herein provided, shall e^ct a 
 trial justice, and may elect one additional for each 
 two thousand inhabitants therein, according to 
 the next preceding decennial census : provided, 
 however, that any trial justice who shall remove 
 from the city or town in which he was elected 
 shall thereby vacate his office. 
 
 ART. 8. Justices and clerks of the Police 
 Courts of the several cides and towns of the 
 Commonwealth shall be elected by the legal 
 voters thereof, respectively, for a term of three 
 years.] 
 
 CHAPTER IX. 
 
 Qualifications of Voters, and Elections. 
 
 ARTICLE 1. Every male citizen, of twenty- one 
 years of age and upwards, (excepting paupers and 
 persons under guardianship,) who shall have re 
 sided within the Commonwealth one year, and 
 within the town or district, in which he may claim 
 a right to vote, six calendar months next pre 
 ceding any election of any national officer, or any 
 Slate officer required by this Constitution to be elect 
 ed by the people, shall have a right to vote in such 
 election ; and no other person shall have such right. 
 
 [ART. 2. All ballots required by law to be 
 given at any national, state, county, district, or 
 city election, including elections for representa 
 tives and trial justices, justices and clerks of Police 
 Courts, shall be deposited in sealed envelopes of 
 uniform size and appearance, to be furnished by 
 the Commonwealth. 
 
 ART. 3. Lists of the names of qualified voters 
 shall be used at all elections required by this 
 Constitution. They shall be made out and used 
 in such manner as shall be by law provided. 
 The presiding officers at such elections shall re 
 ceive the votes of all persons whose names are 
 borne on such lists, and shall not be held answer 
 able for refusing the votes of any persons whose 
 names are not borne thereon. 
 
 ART. 4. All meetings for the choice of national, 
 state, county, or district officers, including rep 
 resentatives, trial justices, clerks and justices of 
 Police Courts, by the people, shall be held on the 
 Tuesday next after the first Monday in Novem 
 ber, annually ; and they shall be called by the 
 mayor and aldermen of the cities, and the select 
 men of the towns, and warned in due course of 
 law. The manner of calling and holding public 
 meetings in cities, for the election of officers under 
 this Constitution, and the manner of returning 
 the votes given at such meetings, shall be as now 
 prescribed, or as shall hereafter be prescribed by 
 the Legislature. 
 
 ART. 5. A majority of all the votes given 
 shall be necessary to the election of governor, 
 lieutenant-governor, secretary, treasurer, auditor, 
 and attorney- general, of the Commonwealth, 
 until otherwise provided by law, but no such 
 law providing that such officers, or either of 
 
 them, or representatives to the General Court, 
 shall be elected by plurality, instead of a majority 
 of votes given, shall take effect until one year 
 after its passage ; and if at any time after any 
 such law shall have taken effect, it shall be re 
 pealed, such repeal shall not become a law until 
 one year after the passage of the repealing act ; and 
 in the absence of any such law, if at any election 
 of either of the above-named officers, except the 
 representatives to the General Court, no person 
 shall have a majority of the votes given, the 
 House of Representatives shall elect two out of 
 three persons then eligible, who had the highest 
 number of votes, if so many shall have been voted 
 for, and return the persons so elected to the Sen 
 ate, from whom the Senate shall choose one who 
 shall be the officer thus to be elected. 
 
 ART. 6. A majority of votes shall be required 
 in all elections of representatives to the General 
 Court, until otherwise provided by law. 
 
 ART. 7. In the election of all city or town 
 officers, such rule of election shall govern as the 
 Legislature may by law prescribe. 
 
 ART. 8. In all elections of councillors and 
 senators, and in all elections of county or district 
 officers, the person having the highest number of 
 votes shall be elected. 
 
 ART. 9. Whenever, in any election where 
 the person having the highest number of votes 
 may be elected, there is a failure of election be 
 cause two persons have an equal number of votes, 
 subsequent trials may be had at such times as 
 may be prescribed by the Legislature.] 
 
 CHAPTER X. 
 
 OatJis and Subscriptions ; Incompatibility of and 
 Exclusion from Offices ; Continuation of Offi 
 cers ; Commissions ; Writs ; Confirmation of 
 Laivs. 
 
 ARTICLE 1. The following oath shall be taken 
 and subscribed by every person chosen or ap 
 pointed to any office, civil or military, under the 
 government of the Commonwealth, before he 
 shall enter upon the duties of Ms office, to 
 wit : 
 
 " I, A. B., do solemnly swear that I will bear 
 true faith and allegiance to the Commonwealth of 
 Massachusetts, and will support the Constitution 
 thereof; and that I will faithfully and impartially 
 discharge and perform all the duties incumbent 
 on me as [here insert the office], according to the 
 best of my abilities and understanding, agreeably 
 to the Constitution and laws of the Common 
 wealth. So help me God." 
 
 [Provided, that when any person, chosen or 
 appointed as aforesaid, shall be conscientiously 
 scrupulous of taking and subscribing an oath, 
 and shall for that reason decline taking the above 
 oath, he shall make and subscribe his affirmation 
 in the foregoing form, omitting the word " swear," 
 and substituting the word " affirm ;" and omit 
 ting the words " So help me God," and subjoin 
 ing instead thereof the words " And this I do 
 under the pains and penalties of perjury."] 
 
748 
 
 APPENDIX. 
 
 [1853. 
 
 CONSTITUTIONAL PROPOSITIONS. 
 
 And the said oaths or affirmations shall be taken 
 and subscribed, by the governor and liexitenant- 
 governor before the president of the Senate, in 
 presence of the two Houses in convention ; and 
 by councillors before the president of the Senate 
 and in presence of the Senate; and by the sena 
 tors and representatives before the governor and 
 Council for the time being ; and by the residue 
 of the officers aforesaid before such persons, and 
 in such manner, as shall from time to time be pre 
 scribed by law. 
 
 ART. 2. No governor, lieutenant-governor, or 
 judge of the Supreme Judicial Court or Court, of 
 Common Pleas, shall hold any other office under 
 the authority rf this Commonwealth, except such 
 as by this Constitution they are admitted to hold, 
 saving that the judges of the said courts may 
 hold the offices of justices of the peace through 
 the State ; nor shall they hold any other office, or 
 receive any pension or salary from any other 
 State, or government, or power whatever, except 
 that they may be appointed to take depositions, or 
 acknowledgments of deeds, or other legal instru 
 ments, by the authority of other States or coun 
 tries. 
 
 [No person shall hold or exercise at the same 
 time more than one of the following offices, to 
 wit: the office of governor, lieutenant-governor, 
 senator, representative, judge of the Supreme 
 Judicial Court, or Court of Common Pleas, sec 
 retary of the Commonwealth, attorney- general, 
 treasurer, auditor, councillor, judge of probate, 
 register of probate, register of deeds, sheriff or his 
 deputy, clerk of the Supreme Judicial Court, or 
 Court of Common Pleas, clerk of the Senate or 
 House of Representatives ; and any person holding 
 either of the above offices shall be deemed to have 
 vacated the same by accepting a seat in the con 
 gress of the United States, or any office under the 
 authority of the United States, the office of post 
 master excepted. And no person shall be capable 
 of holding at the same time more than two offices, 
 which are held by appointment of the governor, or 
 governor and Council, or the Senate, or the House 
 of Representatives, military offices, and the offices 
 of justices of the peace, justices of the peace and 
 quorum, notaries public, and commissioners to 
 qualify civil officers, excepted.] 
 
 ART. 3. And no person shall ever be admitted 
 to hold a seat in the legislature, or any office of 
 trust or importance under the government of this 
 Commonwealth, who shall, in the due course of 
 law, have been convicted of bribery or corruption, 
 in obtaining an election or appointment. 
 
 ART. 4. All commissions shall be in the name 
 of the Commonwealth of Massachusetts, signed 
 by the governor, and attested by the secretary or 
 his deputy, and have the great seal of the Com 
 monwealth affixed thereto. 
 
 ART. 5. All writs, issuing out of the clerk s 
 office in any of the courts of law, shall be in the 
 name of the Commonwealth of Massachusetts ; 
 they shall be under the seal of the court from 
 whence they issue, and be signed by the clerk of 
 such court. 
 
 ART. 6. All the laws, which have heretofore 
 been adopted, used, and approved in the Province, 
 
 Colony, State or Commomoealth of Massachusetts, 
 and usually practised on in the courts of law, 
 shall still remain and be in full force, until altered 
 or repealed by the legislature ; such parts only 
 excepted as are repugnant to the rights and liber 
 ties contained in this Constitution. 
 
 CHAPTER XI. 
 Militia. 
 
 ARTICLE 1. The governor shall be the com- 
 mander-in-chief of the army and navy of the 
 Commonwealth, and of the Militia thereof, except 
 ing when these forces shall be actually in the ser 
 vice of the United States ; and shall have power to 
 call out any part of the military force to aid in the 
 execution of the laws, to suppress insurrection, and 
 to repel invasion. 
 
 [ART. 2. All citizens of this Commonwealth 
 liable to military service, except such as may by 
 law be exempted, shall be enrolled in the militia, 
 and held to perform such military duty as by law 
 may be required. 
 
 ART. 3. The militia may be divided into con 
 venient divisions, brigades, regiments, squadrons, 
 battalions, and companies ; and officers with ap 
 propriate rank and titles may be elected to com 
 mand the same. And the discipline of the 
 militia shall be made to conform, as nearly as 
 practicable, to the discipline of the army of the 
 United States. 
 
 ART. 4. The governor shall appoint an adju 
 tant-general, a quartermaster-general, and such 
 other general staff- officers as shall be designated 
 by law ; who shall be commissioned by him for 
 the term of one year, and until their successors 
 shall be commissioned and qualified. And the 
 adjutant- general and quartermaster- general shall 
 have salaries fixed by law, which shall be in full 
 for all services rendered by them in their several 
 offices. 
 
 ART. 5. The major- generals shall be elected 
 by the votes of the brigadier-generals and field- 
 officers of the brigades, regiments, squadrons, 
 and battalions of the respective divisions. 
 
 ART. 6. The brigadier-generals shall be elect 
 ed by the votes of the field-officers of the regi 
 ments, squadrons, and battalions, and captains of 
 companies, of the respective brigades. 
 
 ART. 7. The field- officers of regiments, squad 
 rons, and battalions, shall be elected by the votes 
 of the captains and subalterns of companies of 
 the respective regiments, squadrons, and bat 
 talions. 
 
 ART. 8. The captains and subalterns shall be 
 elected by the members of the respective com 
 panies. 
 
 ART. 9. All elections of military officers shall 
 be by a majority of the written votes of those 
 present and voting, and no person, within the 
 description of a voter as hereinbefore specified, 
 shall be disqualified by reason of his being a 
 minor. 
 
 ART. 10. The Legislature shall prescribe the 
 time and manner of convening the electors here- 
 
1853 ] 
 
 APPENDIX. 
 
 749 
 
 CONSTITUTIONAL PROPOSITIONS. 
 
 inbefore named, of conducting the elections, and 
 of certifying to the governor the names of the 
 officers elected. 
 
 ART. 11. The several officers elected shall be 
 forthwith commissioned by the governor for the 
 term of three years from the dates of their respec 
 tive commissions, and until their successors shall 
 be commissioned and qualified. 
 
 ART. 12. If the electors of the several offi 
 cers before named shall refuse or neglect to make 
 an election, for the space of three months after 
 legal notice of a meeting for that purpose, the 
 governor shall appoint and commission for three 
 years a suitable person to fill the vacant office, 
 with the advice of the Council if the vacancy be 
 that of a major-general, or with the advice of the 
 major-general of the division in which the 
 appointment is to be made, if the vacancy be of 
 an inferior grade. 
 
 ART. 13. Major-generals, brigadier- generals, 
 and commandants of regiments, squadrons, and 
 battalions, shall severally appoint such staff- offi 
 cers as shall be designated by law in their respect 
 ive commands. 
 
 ART. 14. All non-commissioned officers, 
 whether of staff or company, and all musicians, 
 shall be appointed in such manner as may be pre 
 scribed by law. 
 
 ART. 15. All officers of the militia may be 
 removed from office by sentence of court-martial, 
 or by such other modes as may be prescribed by 
 law.] 
 
 CHAPTER XII. 
 
 The University at Cambridge ; the School Fund ; 
 and the Encouragement of Literature. 
 
 ARTICLE 1. Whereas our wise and pious ances 
 tors, so early as the year one thousand six hundred 
 and thirty-six, laid the foundation of Harvard Col 
 lege, in which university many persons of great 
 eminence have, by the blessing of GOD, been in 
 itiated in those arts and sciences which qualified 
 them for public employments, both in church and 
 state ; and whereas the encouragement of arts 
 and sciences, and all good literature, tends to the 
 honor of God, the advantage of the Christian 
 religion, and the great benefit of this, and the 
 other United States of America it is declared, 
 that the PRESIDENT AND FELLOWS OF HARVARD 
 COLLEGE, in their corporate capacity, and their 
 successors in that capacity, their officers and ser 
 vants, shall have, hold, use, exercise and enjoy, 
 all the powers, authorities, rights, liberties, privi 
 leges, immunities and franchises, which they now 
 have, or are entitled to have, hold, use, exercise 
 and enjoy ; and the same are hereby ratified and 
 confirmed unto them, the said President and Fel 
 lows of Harvard College, and to their successors, 
 and to their officers and servants, respectively, for 
 ever. But the Legislature shall always have full 
 power and authority, as may be judged needful for the 
 advancement of learning, to grant any farther powers 
 to the President and Felloios 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 ; and shall have the 
 like poicer and authority over all corporate 
 franchises hereafter granted, for the purposes of 
 education, in this Commonwealth. 
 
 ART. 2. And whereas there have been, at 
 sundry times, by divers persons, gifts, grants, 
 devises of houses, lands, tenements, goods, chat 
 tels, legacies and conveyances, heretofore made, 
 either to Harvard College in Cambridge, in New 
 England, or to the President and Fellows of 
 Harvard College, or to the said College by some 
 other description, under several charters succes 
 sively ; it is declared, that all the said gifts, grants, 
 devises, legacies and conveyances, are hereby for 
 ever confirmed unto the President and Fellows of 
 Harvard College, and to their successors, in the 
 capacity aforesaid, according to the true intent 
 and meaning of the donor or donors, grantor or 
 grantors, devisor or devisors. 
 
 ART. 3. And whereas by an Act of the Gen 
 eral Court of the Colony of Massachtisetts Bay, 
 passed in the year one thousand six hundred and 
 forty-two, the governor and deputy- governor, for 
 the time being, and all the magistrates of that 
 jurisdiction, were, with the president, and a num 
 ber of the clergy in the said Act described, con- 
 stitxited the overseers of Harvard College ; and it 
 being necessary, in this new constitution of gov 
 ernment, to ascertain who shall be deemed suc 
 cessors to the said governor, deputy- governor, 
 and magistrates ; it is declared that the governor, 
 lieutenant-governor, Council and Senate of this 
 Commonwealth are, and shall be deemed, their suc 
 cessors ; who, with the president of Harvard Col 
 lege, for the time being, together with the ministers 
 of the congregational churches in the towns of 
 Cambridge, Watertown, Charlestown, Boston, 
 lloxbury, and Dorchester, mentioned in the said 
 Act, shall be, and hereby are, vested with all the 
 powers and authority belonging, or in any way 
 appertaining, to the overseers of Harvard College : 
 provided, that nothing herein shall be construed 
 to prevent the Legislature of this Commonwealth 
 from making such alterations in the government 
 of the said University, as shall be conducive to its 
 advantage, and the interest of the republic of let 
 ters, in as full a manner as might have been done 
 by the Legislature of the late Province of the 
 Massachusetts Bay. 
 
 [AiiT. 4. It shall be the duty of the Legisla 
 ture, as soon as may be, to provide for the en 
 largement of the School Fund of the Common 
 wealth, until it shall amount to a sum not less 
 than two millions of dollars ; and the said fund 
 shall be preserved inviolate, and the income there 
 of shall be annually appropriated for the aid and 
 improvement of the common schools of the State, 
 and for no other purpose.] 
 
 ART. 5. Wisdom and knowledge, as well as 
 virtue, diffused generally among the body of the 
 people, being necessary for the preservation of 
 their rights and liberties ; and as these depend on 
 spreading the opportunities and advantages of 
 education in the various parts of the country, and 
 among the different orders of the people, it shall 
 be the duty of Legislatures and magistrates, in 
 all future periods of this Commonwealth, to cher 
 ish the interests of literature and the sciences, and 
 
750 
 
 APPENDIX. 
 
 [1853, 
 
 CONSTITUTIONAL PROPOSITIONS. 
 
 all seminaries of them ; especially the University 
 at Cambridge, public schools, and grammar schools 
 in the towns ; to encourage private societies, and 
 public institutions, rewards and immunities, for 
 the promotion of agriculture, arts, sciences, com 
 merce, trades, manufactures, and a natural history 
 of the country ; to countenance and inculcate the 
 principles of humanity and general benevolence, 
 public and private charity, industry and frugality, 
 honesty and punctuality in their dealings ; sin 
 cerity, good humor, and all social affections, and 
 generous sentiments among the people. 
 
 CHAPTER XIII. 
 Miscellanea us Pro v isions . 
 
 ARTICLE 1 . A census of the inhabitants of each 
 city and town in the Commonwealth, on the first 
 day of May in the year one thousand eight hun 
 dred and fifty-five, and on the first day of May 
 of each tenth year thereafter, shall be taken and 
 returned into the secretary s office, on or before 
 the last day of the June following the said first 
 day of May in each of said years ; and while the 
 public charges of government, or any part thereof, 
 shall be assessed on polls and estates, in the man 
 ner that has hitherto been practised, in order that 
 such assessments may be made with equality, 
 there shall be a valuation of estates within the 
 Commonwealth taken anew once in every ten 
 years at least, and as much oftener as the General 
 Court shall order. 
 
 [ART. 2. Persons holding office by election or 
 appointment, when this Constitution takes effect, 
 shall continue to discharge the duties thereof un 
 til their term of office shall expire, or officers au 
 thorized to perform their duties, or any part 
 thereof, shall be elected and qualified, pursuant 
 to the provisions of this Constitution ; when all 
 powers not reserved to them by the provisions of 
 this Constitution shall cease : provided, however, 
 that justices of the peace, justices of the peace and 
 of the quorum, and commissioners of insolvency, 
 shall be authorized to finish and complete all pro 
 ceedings pending before them at the time, when 
 their powers and duties shall cease, or be altered 
 as aforesaid. All laws in force when this Consti 
 tution goes into effect, not inconsistent therewith, 
 shall continue in force until amended or repealed. 
 
 ART. 3. The Legislature shall provide, from 
 time to time, the mode in which commissions or 
 certificates of election shall be issued to all officers 
 elected pursuant to the Constitution, except in 
 cases where provision is made therein. 
 
 ART. 4. The governor, by and with the con 
 sent of the Council, may at any time, for inca 
 pacity, misconduct or maladministration in their 
 offices, remove from office, clerks of courts, com 
 missioners of insolvency, judges and registers of 
 probate, district- attorneys, registers of deeds, coun 
 ty treasurers, county commissioners, sheriffs, trial 
 justices, and justices and clerks of police courts : 
 provided, that the cause of their removal be en 
 tered upon the records of the Council, and a 
 copy thereof be furnished to the party to be re 
 
 moved, and a reasonable opportunity be given 
 him for defence. And the governor may at any 
 time, if the public exigency demand it, either be 
 fore or after such entry and notice, suspend any 
 of said officers, and appoint substitutes, who shall 
 hold office until the final action upon the question 
 of removal. 
 
 ART. 5. Whenever a vacancy shall occur in 
 any elective office, provided for in this Constitu 
 tion, except that of governor, lieutenant-governor, 
 councillor, senator, member of the House of Rep 
 resentatives, and town and city officers, the gov 
 ernor for the time being, by and with the advice 
 and consent of the Council, may appoint some 
 suitable person to fill such vacancy, until the 
 next annual election, when the same shall be filled 
 by a new election, in the manner to be provided 
 by law : provided, however, that trial justices shall 
 not be deemed to be town officers for this purpose. 
 
 ART. 6. All elections provided to be had un 
 der this Constitution shall, unless otherwise provi 
 ded, be first held on the Tuesday next after the 
 first Monday of November, in the year one thou 
 sand eight hundred and fifty-four. 
 
 ART. 7. This Constitution shall go into ope 
 ration on the first Monday in February, in the 
 year one thousand eight hundred and fifty- four. 
 
 ART. 8. The terms of all elective officers, not 
 otherwise provided for in this Constitution, shall 
 commence on the first Wednesday in January 
 next after their election.] 
 
 ART. 9. In order to remove all doubt of the 
 meaning of the word " inhabitant," in this Con 
 stitution, every person shall be considered as an 
 inhabitant, for the purpose of electing and being 
 elected into any office or place within this State, 
 in that town, district, or plantation, where he 
 dwelleth, or hath his home. 
 
 ART. 10. This form of government shall be 
 enrolled on parchment, and deposited in the sec 
 retary s office, and be a part of the laws of the 
 land ; and printed copies thereof shall be prefixed 
 to the book containing the laws of this Common 
 wealth, in all future editions of the said laws. 
 
 CHAPTER XIV. 
 
 Revision and Amendments of the Constitution. 
 
 [ARTICLE 1. A Convention to revise or amend 
 this Constitution may be called and held in the 
 following manner : At the general election in the 
 year one thousand eight hundred and seventy- 
 three, and in each twentieth year thereafter, the 
 qualified voters in State elections shall give in 
 their votes upon the question, " Shall there be a 
 Convention to revise the Constitution?" which 
 votes shall be received, counted, recorded, and 
 declared, in the same manner as in the election of 
 Governor ; and a copy of the record thereof shall, 
 within one month, be returned to the office of 
 the Secretary of State, who shall, thereupon, ex 
 amine the same, and shall officially publish the 
 number of yeas and nays given upon said ques 
 tion, in each town and city, and if a majority of 
 said votes shall be in the affirmative, it shall be 
 
1853.] 
 
 APPENDIX. 
 
 51 
 
 CONSTITUTIONAL PROPOSITIONS. 
 
 deemed and taken to be the will of the people 
 that a Convention shall meet accordingly ; and, 
 thereafter, on the first Monday of March ensuing, 
 meetings shall be held, and delegates shall be cho 
 sen, in all the towns, cities, and districts, in the 
 Commonwealth, in the manner and number then 
 provided bylaw for the election of the largest num 
 ber of representatives which the towns, cities, and 
 districts shall then be entitled to elect in any year 
 of that decennial period. And such delegates 
 shall meet in Convention at the State House, on 
 the first Wednesday of May next ensuing, and 
 when organized, shall have all the powers neces 
 sary to execute the purpose for which such Con 
 vention was called ; and may establish the com 
 pensation of its officers and members, and the 
 expense of its session, for which the Governor, 
 with the advice and consent of the Council, shall 
 draw his warrant on the treasury. And if such 
 alterations and amendments, as shall be proposed 
 by the Convention, shall be adopted by the peo 
 ple voting thereon in such manner as the Conven 
 tion shall direct, the Constitution shall be deemed 
 and taken to be altered or amended accordingly. 
 And it shall be the duty of the proper officers, and 
 persons in authority, to perform all acts necessa 
 ry to carry into effect the foregoing provisions. 
 
 ART. 2. Whenever towns or cities containing 
 not less than one-third of the qualified voters of 
 the Commonwealth, shall at any meeting for the 
 election of State officers, request that a Conven 
 tion be called to revise the Constitution, it shall 
 be the duty of the legislature, at its next session, 
 to pass an Act for the calling of the same, and 
 submit the question to the qualified voters of the 
 Commonwealth, whether a Convention shall be 
 called accordingly : provided, that nothing herein 
 contained shall impair the power of the Legisla 
 ture to take action for calling a Convention, with 
 out such request, as heretofore practised in the 
 Commonwealth.] 
 
 ART. 3. If, at any time hereafter, any specific 
 and particular amendment or amendments to the 
 Constitution be proposed in the General Court, 
 and agreed to by a majority of the senators and 
 two-thirds of the members of the House of Rep 
 resentatives, present and voting thereon, such 
 proposed amendment or amendments shall be en 
 tered on the journals of the two Houses, with 
 the yeas and nays taken thereon, and referred to 
 the General Court then next to be chosen, and 
 shall be published ; and if, in the General Court 
 next chosen, as aforesaid, such proposed amend 
 ment <5r amendments shall be agreed to by a ma 
 jority of the senators and two-thirds of the 
 members of the House of Representatives, pres 
 ent and voting thereon ; then it shall be the duty 
 of the General Court to submit such proposed 
 amendment or amendments to the people ; and if 
 they shall be approved and ratified by a majority 
 of the qualified voters, voting thereon, at meet 
 ings legally warned and holden for that purpose, 
 they shall become part of the Constitution of this 
 Commonwealth. 
 
 [ART. 4. The Legislature which shall be chosen 
 at the general election on the Tuesday next after 
 the first Monday in November, in the year one 
 thousand eight hundred and fifty- five, shall 
 
 divide the State into forty single districts for the 
 choice of senators, such districts to be of con 
 tiguous 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 dou 
 ble 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 hundred and forty, nor more than 
 three hundred and twenty representatives ; with 
 proper provisions for districting the Common 
 wealth as aforesaid, in the year one thousand 
 eight hundred and sixty -six, and every tenth year 
 thereafter ; and with all other provisions neces 
 sary for carrying such system of districts into 
 operation ; and shall submit the same to the peo 
 ple at the general election to be held in the year 
 one thousand eight hundred and fifty- six, 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 Constitution for the apportion 
 ment of senators and representatives.] 
 
 Proposition Number Two. 
 
 The writ of habeas corpus shall be granted as of 
 right in all cases in which a discretion is not 
 especially conferred upon the court by the Legis 
 lature ; but the Legislature may prescribe forms 
 of proceeding preliminary to the obtaining of the 
 writ. 
 
 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 su 
 perintend 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. 
 
 Proposition Number Fo-r. 
 
 Every person having a claim against the Com 
 monwealth, ought to have a judicial remedy 
 therefor. 
 
 Proposition Number Five, 
 
 No person shall be imprisoned for any debt 
 hereafter contracted, unless in cases of fraud. 
 
752 
 
 APPENDIX. 
 
 [1853. 
 
 CONSTITUTIONAL PnorosrnoNS. 
 
 Proposition Number Six. 
 
 All moneys raised by taxation in the towns and 
 cities, for the support of public schools, and all 
 moneys which may be appropriated by the State 
 for the support of common schools, shall be ap 
 plied to and expended in no other schools than 
 those which are conducted according to law, under 
 the order and superintendence of the authorities 
 of the town or city in which the money is to be 
 expended ; and such moneys shall never be ap 
 propriated to any religious sect, for the mainte 
 nance, exclusively, of its own schools. 
 
 Proposition ITumber Seven. 
 
 The Legislature shall not create corporations by 
 special act when the object of the incorporation is 
 attainable by general laws. 
 
 Proposition dumber Eight. 
 
 The Legislature shall have no power to pass 
 any act granting any special charter for banking 
 purposes, or any special act to increase the capi 
 tal stock of any chartered bank ; but corpora 
 tions may be formed for such purposes, or the 
 capital stock of chartered banks may be increased, 
 under general laws. 
 
 The Legislature shall provide by law for the 
 registry of all notes or bills authorized by general 
 laws tD be issued or put in circulation as money ; 
 and shall require ample security for the redemp 
 tion of such notes in specie. 
 
 COMMONWEALTH OF MASSACHUSETTS. 
 
 In Convention, August 1, 1853. 
 
 A true copy of the resolutions adopted by the 
 Convention and of the several Constitutional 
 Propositions annexed. Attest : 
 
 N. P. BANKS, Ju., President. 
 
 W. S. ROBINSON, 
 JAS. T. HOBINSON, 
 
 Secretaries. 
 
 COMMONWEALTH OF MASSACHUSETTS. 
 
 In Convention, August 1, 1853. 
 
 The Committee which was directed to prepare 
 an Address to the People of Massachusetts, ask 
 leave to report the form of such Address. 
 
 For the Committee, 
 
 GEO. S. BOUTWELL, Chairman. 
 
 ADDRESS. 
 
 To the People of Massachusetts : 
 
 The Convention of Delegates, assembled by 
 your authority, and directed to revise the Consti 
 tution of the Commonwealth, has now closed its 
 labors ; and it seeks only to commend and com 
 mit the result to your consideration and final 
 judgment. The necessity for the Convention was 
 great, and its labors have been arduous and pro 
 tracted. As your delegates, we have sought for 
 the principles of freedom in the ancient institu 
 tions of the State ; but we have thought it wise 
 also to accept the teachings and experience of 
 nearly a century of independent existence. It has 
 then been our purpose to unite in one system of 
 organic law the principles of American republican 
 institutions, and the experiences of other free 
 States, all contemplated in the light derived from 
 the history and usages of Massachusetts. 
 
 And first of all, we think it proper to present for 
 your consideration 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. Constitu 
 tional laws should be plain, that they may be 
 impartially interpreted and faithfully executed 
 " that every man may at all times find his secu 
 rity in them." We have not, then, thought it 
 wise, or even proper, to preserve, as a part of the 
 Constitution, provisions which have long since 
 been annulled ; nor do we feel justified in pro 
 posing new specific amendments whose adoption 
 will render the fundamental law of the Common 
 wealth more difficult to be understood and less 
 certain in its requirements. 
 
 We have, therefore, taken what remains un 
 changed of the Constitution 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 Conven 
 tion as are necessary to give to the whole, at once, 
 a comprehensive and concise character. This lias 
 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 complete system of organic law, 
 as one proposition, for your adoption and ratifica 
 tion. It is undoubtedly true, that when amend 
 ments are specific and not numerous, they should 
 be separately submitted to the judgment of the 
 people ; but this mode becomes impracticable in 
 
1853.] 
 
 APPENDIX. 
 
 753 
 
 ADDIIESS. 
 
 the formation of a new government, or the thor 
 ough revision of an old one. Our attention has 
 been necessarily directed to every provision of the 
 Constitution, 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 Con 
 stitution as specific amendments, with the convic 
 tion 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 Con 
 stitution of Massachusetts. 
 
 This we now do, and we invite you to consider 
 that, while government is essential to the safety 
 and happiness of each individual, it must neces 
 sarily happen that it cannot be in every part alike 
 acceptable to all. " We may not expect," said 
 the founders of the Commonwealth, " to agree in 
 a perfect system of government ; this is not the 
 lot of mankind. The great end of government is 
 to promote the supreme good of human society." 
 We commend the new Constitution to you, not 
 as being perfect, but as greatly to be preferred to 
 the existing frame of government. It declares 
 the rights and liberties essential to the freedom of 
 the people ; it contains, as we believe, a frame 
 work arranged according to reason and correct 
 analysis, and it embodies all the fundamental 
 provisions necessary to a just administration of 
 every department of the government. 
 
 You will naturally examine with care the char 
 acter of the changes we have proposed. We have 
 thought it necessary to make a provision for the 
 purpose of limiting the sessions of the General 
 Court to one hundred days, and to require that 
 the pay of its members shall be fixed by standing 
 laws. 
 
 At present the members of the Senate are cho 
 sen by the several counties which elect from one 
 to six senators, upon a general ticket. We have 
 provided for the division of the State into forty 
 districts, of equal population, and each entitled to 
 elect one senator. 
 
 The basis of the House of Representatives has 
 been a subject of careful and anxious deliberation. 
 Differences of opinion existed among us ; but a 
 majority of more than one hundred members de 
 termined to preserve the system of town repre 
 sentation, under which Massachusetts has existed 
 so long and prospered so well. We have, then, 
 based the House of Representatives upon the mu 
 nicipal institutions of the State, having reference, 
 so far as practicable, to their relative population. 
 By the proposed system, towns containing less 
 than one thousand inhabitants are entitled to 
 elect a representative for the year when the valu 
 
 ation of estates is settled, and one in addition, 
 annually, for five years out of every decennial 
 period. Towns having a population of one thou 
 sand and not more than four thousand inhabi 
 tants, are entitled to elect a representative every 
 year ; towns of more than four thousand and less 
 than eight thousand, will elect two representa 
 tives ; towns of eight thousand and less than 
 twelve thousand, will elect three representatives, 
 while towns and cities of twelve thousand inhabi 
 tants, will elect four representatives, and one 
 additional representative for each addition of four 
 thousand to their population. We do not claim 
 that this system, separately considered, is pre 
 cisely equal ; but if it is in some degree favorable 
 to the rural districts, the loss sustained by the 
 large towns and cities is in a fair measure com 
 pensated by the manifest advantages accorded to 
 them in the constitution of the Council and the 
 Senate. The inequality of representation between 
 particular towns, when tested solely by popula 
 tion, may in some cases apparently be great ; but 
 when the rights of different interests and different 
 sections of the Commonwealth are considered in 
 connection with the whole system of elective 
 government, the basis of the House cannot be 
 deemed unequal or unjust. The Senate and 
 Council are based upon population rather than 
 voters, by which the inhabitants of the cities and 
 large towns have influence in these two important 
 departments of the government quite dispropor 
 tionate to their just elective power. 
 
 No human government can attain to theoretic 
 accuracy ; and in a state where pursuits, habits, 
 and interests are various, it certainly is not the 
 part of wisdom to place unlimited power in the 
 hands of any. We invite you to consider that the 
 Governor represents the voters of the State ; that 
 the Council and Senate represent population,with- 
 out any reference to voters, and as a consequence, 
 that these two departments 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 inter 
 ests a reasonable share of power in one branch of 
 the Legislature. This influence gives to this por 
 tion of the people power to assent to, but never to 
 dictate, the policy of the government. The Con 
 vention of 1780 declared that "an exact repre 
 sentation would be impracticable even in a system 
 of government arising from the state of nature, 
 and much more so in a State already divided into 
 nearly three hundred corporations." We have 
 encountered the same difficulty, and hope that we 
 have overcome it in our day as well as they over 
 came it in their day. 
 
754 
 
 APPENDIX. 
 
 [1853. 
 
 ADDRESS. 
 
 But our deliberations have not been confined 
 to the proposed system. 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 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 people s will, and then to give a fair 
 opportunity for its expression upon all questions 
 of importance whenever such a course is practi 
 cable. We have, therefore, made a constitutional 
 provision 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. 
 
 We have also provided that the cities and large 
 towns shall be so districted for the choice of rep 
 resentatives that no district shall be entitled to 
 elect more than three members. In the judg 
 ment of the Convention, the election of many 
 officers on a single general ticket, is not compati 
 ble with the freedom and purity of the represen 
 tative system. 
 
 The property qualification of the Governor and 
 Lieutenant- Governor has been abolished. 
 
 The Council has been made elective by the 
 people in single districts, and the records of that 
 body are hereafter to be subject to public exami 
 nation. 
 
 We have provided that the Attorney- General, 
 the Secretary of the Commonwealth, the Auditor 
 and the Treasurer, officers now appointed by the 
 Governor, or chosen by the Legislature, shall 
 hereafter be elected annually by the people ; and 
 that Judges of Probate, Registers of Probate, 
 Sheriffs, Clerks of the Courts, Commissioners of 
 Insolvency, and District- Attorneys, officers now 
 appointed by the Executive or the Courts, shall 
 also be elected by the people for terms of three 
 years. 
 
 We have also provided that the Justices of the 
 Supreme Judicial Court and of the Court of 
 Common Pleas, hereafter appointed, shall hold 
 their offices for the term of ten years. In a free 
 government, the people should be relieved in a 
 reasonable time, and by the ordinary course of 
 affairs, from the weight of incompetent or un 
 faithful public servants. Under the present Con 
 stitution 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 re 
 tained in the public service ; while those whose 
 
 places can be better filled by other men, will 
 retire to private life without violence or ungra 
 cious circumstances, and scarcely with observa 
 tion. 
 
 It is proposed that Justices of the Peace shall 
 be divided into two classes. Those whose duties 
 are chiefly ministerial, will be, as heretofore, ap 
 pointed by the Governor and Council ; while 
 those intrusted with judicial authority are to be 
 elected by the people, and to hold by a tenure of 
 three years. 
 
 Under the original Constitution, voters and 
 public officers were required to possess property 
 qualifications. These have heretofore been re 
 moved in part, and we now recommend the entire 
 abolition of the property qualification in the voter 
 for all national and all state officers mentioned in 
 the Constitution. The obligations of citizens to 
 contribute to the public expenses by assessment 
 of taxes are not in any degree changed. 
 
 Provision is also made for the secrecy of the 
 ballot. By the ballot the citizen at the same 
 time declares his opinion on public affairs, and 
 asserts his equality with every other citizen. 
 
 Freedom of opinion, and freedom in the ex 
 pression of opinion, are individual rights, to be lim 
 ited or controlled only by a public necessity. We 
 see no public necessity which ought to deprive 
 the citizen of these rights, and we have therefore 
 made provision for their protection. 
 
 We also provide, absolutely, that in many elec 
 tions, persons having the highest number of votes 
 shall be chosen. This rule has been applied prin 
 cipally to the elections in counties and districts, 
 where the trouble of frequent trials is great. 
 The Governor, Lieutenant- Governor, Secretary 
 of the Commonwealth, Attorney- General, Treas 
 urer, Auditor, Representatives to the General 
 Court, and town officers, are exceptions to the 
 rule. In case of a failure to elect either of the 
 first six named, the election is referred to the 
 General Court ; while subsequent trials may be 
 had for the choice of Representatives and munici 
 pal officers. We have, therefore, as we think, 
 retained the majority rule where its application 
 will be least burdensome to the people. At; the 
 same time we have provided that the Legislature 
 may substitute 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 after its passage. Thus we have given an 
 opportunity to test the wisdom 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. 
 
 The various provisions relating to the militia 
 
1853.] 
 
 APPENDIX. 
 
 755 
 
 ADDRESS. 
 
 have been revised, some important changes have 
 been made, and that department of the govern 
 ment will rest more firmly than ever on a consti 
 tutional basis. 
 
 Changes are proposed concerning the University 
 at Cambridge, and the General Court is instruct 
 ed to provide means for the enlargement of the 
 School Fund, until it shall amount to a sum not 
 less than two millions of dollars. 
 
 Although the Constitution has always asserted, 
 in the strongest terms, the right of the people, at 
 all times, to alter, reform, or totally change their 
 frame of government, yet it has been contended 
 by some, that the operation and effect of the spe 
 cific provisions for amendments, contained there 
 in, have been such as practically to impair or 
 render doubtful this great right. We have, there 
 fore, thought it wise, while we recognize and 
 retain the modes of exercising this right, practised 
 hitherto in this Commonwealth, to introduce ad 
 ditional provisions, to meet possible future exi 
 gencies, and to enable the people, without contro 
 versy, to hold periodical Conventions that shall 
 not be subject to, or restricted by, any previous 
 or subsequent act of the Legislature. 
 
 Trusting that you will examine with care the 
 proceedings of the Convention, and the result to 
 which it has come, we deem it unnecessary to 
 explain several less prominent changes proposed 
 in the Constitution of the Commonwealth. 
 
 We also submit seven distinct amendments, 
 which are presented separately for your ratifica 
 tion. Some of them are new, and all of them 
 are independent of the frame- work of the govern 
 ment, and may either be adopted or rejected with 
 out disturbing the system or harmony of the 
 Constitution. They have all, however, been sus 
 tained by decisive majorities of your delegates, 
 and embrace important and essential principles 
 in popular government. The formation or re 
 vision of a popular Constitution is an epoch in 
 the history of a free people. 
 
 We are sensible of the magnitude of the trust 
 which you have confided to us, but it is not more 
 important than the just decision of the questions 
 which we submit to you. We have no doubt 
 that your decision will secure a result beneficial 
 to Massachusetts, and, under Divine Providence, 
 will render more and more illustrious our ancient 
 Commonwealth. 
 
 In Convention, August 1, 1853. 
 Read and accepted. 
 
 N. P. BANKS, JR., President. 
 
 WM. S. ROBINSON, ) ~ . 
 
 JAMES T. ROBINSON, J Sccr ta s 
 
756 
 
 APPENDIX. 
 
 [1853. 
 
 VOTE ON THE CONSTITUTIONAL PHOPOSITIONS. 
 
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1853.] 
 
 APPENDIX. 
 
 757 
 
 VOTE ON THE CONSTITUTIONAL PHOPOSITIONS. 
 
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758 
 
 APPENDIX. 
 
 [1853. 
 
 VOTE ox THE CONSTITUTIONAL PHOPOSITIONS. 
 
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1853.] 
 
 APPENDIX. 
 
 759 
 
 VOTE ON THE CONSTITUTIONAL PROPOSITIONS. 
 
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760 
 
 APPENDIX. 
 
 [1853. 
 
 VOTE ON THE CONSTITUTIONAL PROPOSITIONS. 
 
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1853.] 
 
 APPENDIX. 
 
 761 
 
 VOTE ox THE CONSTITUTIONAL PROPOSITIONS. 
 
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762 
 
 APPENDIX. 
 
 [1853. 
 
 VOTE ON THE CONSTITUTIONAL PROPOSITIONS. 
 
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1853.] 
 
 APPENDIX. 
 
 763 
 
 VOTE ON THE CONSTITUTIONAL PROPOSITIONS. 
 
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764 
 
 APPENDIX. 
 
 [1853, 
 
 VOTE ON THE CONSTITUTIONAL PROPOSITIONS. 
 
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1853.] 
 
 APPENDIX. 
 
 765 
 
 VOTE ON THE CONSTITUTIONAL PROPOSITIONS. 
 
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766 
 
 APPENDIX. 
 
 [1853. 
 
 VOTE ON THE CONSTITUTIONAL PROPOSITIONS. 
 
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1853.] 
 
 APPENDIX. 
 
 767 
 
 VOTE ON THE CONSTITUTIONAL PROPOSITIONS. 
 
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768 
 
 APPENDIX. 
 
 {1853, 
 
 VOTE ON THE CONSTITUTIONAL PROPOSITIONS. 
 
 QOI^^tQOCOOCiCOOt^Cii-H 
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 fe" 
 
 
 
 
1853.] 
 
 APPENDIX. 
 
 769 
 
 ERRATA. 
 
 E R R A T A . 
 
 VOL. I., page 532, in the Yeas and Nays on the 
 Council, the name of George S. Bout well should 
 appear among the Nays, instead of the Yeas, he 
 having voted against the proposition of the mem 
 ber for Manchester. 
 
 Vol. I., pages 778-780, the list of Y r eas and 
 Nays relating to the Secretary, Treasurer, &c., 
 were inserted before being revised by the official 
 copy, which was corrected after the names were 
 called. The following is correct : 
 
 YEAS. 
 
 Adams, Shubael P. 
 
 Cressy, Oliver S. 
 
 Allen, Charles 
 
 Crittenden, Simeon 
 
 Allis, Josiah 
 
 Cross, Joseph W. 
 
 Alvord, D. W. 
 
 Cushman, Thomas 
 
 Baker. Hillel 
 
 Cutler, Simeon N. 
 
 Ballard, Alvah 
 
 Davis, Ebenezer 
 
 Bancroft, Alpheus 
 
 Davis, Isaac 
 
 Barrett, Marcus 
 
 Dean, Silas 
 
 Bates, Moses, Jr. 
 
 Denton, Augustus 
 
 Beach, Erasmus D. 
 
 Dunham, Bradish 
 
 Beal, John 
 
 Durgin, John M. 
 
 Bennett, Zephaniah 
 
 Easton, James, 2d 
 
 Bird, Francis W. 
 
 Eaton, Calvin D. 
 
 Bishop, Henry W. 
 
 Eaton, Lilley 
 
 Bliss, Gad O. 
 
 Edwards, Elisha 
 
 Booth, William S. 
 
 Fellows, Jatnes K. 
 
 Boutwell, George S. 
 
 Fisk, Lvman 
 
 Bout well, Sewell 
 
 Fiske, Emery 
 
 Bradford, William J. A. 
 
 Foster, Aaron 
 
 Breed, Hiram N. 
 
 Foster, Abram 
 
 Bronson, Asa 
 
 Fowle, Samuel 
 
 Brown, Adolphus F. 
 
 Freeman, James M. 
 
 Brown, Alpheus R. 
 
 French., Charles A. 
 
 Brown, Hiram C. 
 
 French, Samuel 
 
 Brownell, Joseph 
 
 Gale, Luther 
 
 Bryant, Patrick 
 
 Gates, Elbridge 
 
 Buck, Asahel 
 
 Gilbert, Washington 
 
 Burlingame, Anson 
 
 Giles, Charles G. 
 
 Carruthers, William 
 
 Gooding, Leonard 
 
 Chapin, Daniel E. 
 
 Gourgas, F. R. 
 
 Chapin, Henry 
 
 Green, Jabez 
 
 Childs, Josiah 
 
 Griswold, Josiah W. 
 
 Churchill, J. McKean 
 
 Hadlev, Samuel P. 
 
 Clarke, Still man 
 
 Hall, Charles B. " 
 
 Cleverly, William 
 
 Hallett, B. F. 
 
 Coggin, Jacob 
 
 Harmon, Phineas 
 
 Cole, Lansing J. 
 
 Haskell, George 
 
 Cole, Sumner 
 
 Hathaway, Elnathan P. 
 
 Crane, George B. 
 
 Hawkes, Stephen E. 
 
 Hayden, Isaac 
 Heath, Ezra, 2d 
 Hewes, James 
 Ilewes, William H. 
 Hobart, Aaron 
 I Hobart, Henry 
 i Hobbs, Edwin 
 | Holder, Nathaniel 
 j Hood, George 
 I Hooper, Foster 
 1 Howard, Martin 
 j Huntington, Charles P. 
 
 Huiitiiigton, George H. 
 
 Hurlbut, Moses C. 
 
 Jacobs, John 
 
 Johnson, John 
 
 Kendall, Isaac 
 
 Kingruan, Joseph 
 
 Knight, Hiram 
 
 Knight, Jefferson 
 
 Knowlton, Charles L. 
 
 Knowlton, J. S. C. 
 1 Knowlton, William II. 
 ! Knox, Albert 
 ] Kuhn, George II. 
 
 Ladd, Gardner P. 
 
 Laiigdon, Wilber C. 
 
 Law ton, Job G., Jr. 
 
 Leland, Alden 
 j Lincoln, Abishai 
 J Loomis, E. Justin 
 | Marble, William P. 
 j Marvin, Abijah P. 
 
 Mason, Charles 
 
 Meader, Reuben 
 
 Merritt, Simeon 
 
 Moore, James M. 
 
 Morton, Elbridge G. 
 
 Morton, Marcus 
 
 Morton, Marcus, Jr. 
 
 Newman, Charles 
 
 Nichols, William 
 
 Nute, Andrew T. 
 
 Ober, Joseph E. 
 
 Oliver, Henry K. 
 
 Orne, Benjamin S. 
 
 Packer, E. Wing 
 
 Parker, Adolphus G. 
 
 Parris, Jonathan 
 
 Parsons, Samuel C. 
 
 Parsons, Thomas A. 
 
 Partridge, John 
 
 Peabody, Nathaniel 
 
 Pease, Jeremiah, Jr. 
 
 Penniman, John 
 Perkins, Daniel A. 
 Perkins, Jesse 
 Perkins, Noah C. 
 Phelps, Charles 
 Pierce, Henry 
 Pool, James M. 
 Rantoul, Robert 
 Rawson, Silas 
 Read, James 
 Richardson, Daniel 
 Richardson, Samuel H. 
 Rockwood, Joseph M. 
 Rogers, John 
 Ross, David S. 
 Sanderson, Amasa 
 
 Sanderson, Chester 
 
 Schouler, William 
 
 Sheldon, Luther 
 
 Sherril, John 
 Simonds, John W. 
 
 Smith, Matthew 
 
 Souther, John 
 
 Sprague, Melzar 
 
 Spooner, Samuel W. 
 
 Stacy, Ebcn H. 
 
 Stevens, Granville 
 
 Stevens, Joseph L., Jr. 
 
 Stevens, William 
 
 Stiles, Gideon 
 
 Sumner, Charles 
 
 Thayer, Joseph 
 
 Thayer, Willard, 2d 
 
 Thomas, John W. 
 
 Tilton, Abraham 
 
 Tilton, Horatio W. 
 
 Turner, David 
 
 Turner, David P. 
 
 Tyler, William 
 
 Underwood, Orison 
 
 Viles, Joel 
 
 Wales, Bradford L. 
 
 Walker, Amasa 
 
 Ward, Andrew H. 
 
 Warner, Samuel, Jr. 
 
 Weston, Gershom B, 
 
 White, Benjamin 
 
 White, George 
 
 Whitney, Daniel S. 
 
 Whitney, James S. 
 
 Wilbur, Joseph 
 
 Williams, Henry 
 
 Wilson, Henry 
 
 Wilson, Willard 
 
770 
 
 APPENDIX. [1853. 
 
 ERRATA. 
 
 "VVinn, Jonathan B. 
 
 Wood, Nathaniel Keyes, Edward L. Parker, Joel 
 
 Winslow, Levi M. 
 
 Wood, Otis 
 
 Kimball, Joseph Payson, Thomas E. 
 
 Wood, Charles C. 
 
 Wright, Ezekiel 
 
 Kinsman, Henry W. Peabody, George 
 
 
 
 Knight, Joseph Perkins, Jonathan C. 
 
 
 NAYS. 
 
 Lawrence, Luther Phinney, Sylvanus B. 
 
 Aspinwall, William 
 Atwood, David C. 
 Barrows, Joseph 
 Bell, Luther V. 
 Bradbury, Ebene/er 
 Brinley, Francis 
 Briggs, George N. 
 Bullock, Rufus 
 Bumpus, Cephas C. 
 Cogswell, Nathaniel 
 Cooledge, Henry F. 
 Crosby, Leander 
 Davis, Solomon 
 Earues, Philip 
 Eustis, William T. 
 Fowler, Samuel P. 
 Gilbert, Wanton C. 
 Gould, Robert 
 Goulding, Dalton 
 Hale, Artemas 
 Hammond, A. B. 
 Heard, Charles 
 Hersey, Henry 
 
 Hopkinson, Thomas 
 Houghton, Samuel 
 Hunt, William 
 Jackson, Samuel 
 Kellogg, Giles C. 
 Ladd, John S. 
 Lincoln, Fred. W., Jr. 
 Livermore, Isaac 
 Loud, Samuel P. 
 Lowell, John A. 
 Miller, Seth, Jr. 
 Mixter, Samuel 
 Noyes, Daniel 
 Orcutt, Nathan 
 Park, John G. 
 Parker, Samuel D. 
 Sargent, John 
 Stevens, Charles G. 
 Walcott, Samuel B. 
 Weeks, Cyrus 
 Wilkins, John H. 
 Wilson, Milo 
 Woods, Josiah B. 
 
 Little, Otis Plunkett, William C. 
 Littlefield, Tristram Pomroy, Jeremian, 
 Lord, Otis P. Powers, Peter 
 Lothrop, Samuel K. Preston, Jonathan 
 Marcy, Laban Prince, F. O. 
 Marvin, Theophilus R. Putnam, George 
 Monroe, James L. Putnam, John A. 
 Morey, George Reed, Sampson 
 Morss, Joseph B. Rice, David 
 Morton, William S. Richards, Luther 
 Nash, Hiram Richardson, Nathan 
 Nayson, Jonathan Ring, Elkanah, Jr. 
 Norton, Alfred Rockwell, Julius 
 Osgood, Charles Royce, James C. 
 Paige, James W. Sampson, George R. 
 Paine, Benjamin Sherman, Charles 
 Paine, Henry Sikes, Chester 
 Davis, Robert T. Simmons, Perez 
 Dawes, Henry L. Sleeper, John S. 
 Day, Gilman Stetson, Caleb 
 Dehon, William Stevenson, J. Thomas 
 Deming, Elijah S. Storrow, Charles S. 
 Dennison, Hiram S. Strong, Alfred L. 
 DeWitt, Alexander Stutson, William 
 
 Hinsdale, William 
 
 
 Doane, James C. Sumner, Increase 
 
 
 
 Dornaan, Moses Swain, Alanson 
 
 
 ABSENT. 
 
 Duncan, Samuel Taber, Isaac C. 
 
 
 
 Earle, John M. Taft, Arnold 
 
 Abbott, Alfred A. 
 
 Choate, Rufus 
 
 Easland, Peter Talbot, Thomas 
 
 Abbott, Josiah G. 
 Adams, Benjamin P 
 Aldrich, P. Emory 
 Allen, James B. 
 Allen, Joel C. 
 
 Clark, Henry 
 , Clark, Ransom 
 Clark, Salah 
 Clarke, Alpheus B. 
 Coiikey, Ithamar 
 
 Edwards, Samuel Taylor, Ralph 
 Ely, Joseph M. Thompson, Charles 
 Ely, Homer Tileston, Edmund P. 
 Farwell, A. G. Tower, Ephraim 
 Fav, Sullivan Train, Charles R. 
 
 Allen, Parsons 
 Alley, John B. 
 Andrews, Robert 
 Appleton, William 
 Austin, George 
 Ayres, Samuel 
 Ball, George S. 
 Banks, Nathaniel P., 
 Bartlett, Russel 
 Bartlett, Sidney 
 Bates, Eliakim A. 
 
 Cook, Charles E. 
 Copeland, Benjamin F 
 Crockett, George W. 
 Crowell, Seth 
 Crownmshield, F. B. 
 Cummings, Joseph 
 Curtis, Wilbur 
 Jr. Cushman, Henry W. 
 Dana, Richard H., Jr. 
 Davis, Charles G. 
 Davis, John 
 
 Fitch, Exekiel W. Tyler, John S. 
 French, Charles H. Upham, Charles W. 
 French, Rodney Upton, George B. 
 Frothirgham, R d, Jr. Vinton, George A. 
 Gardner, Henry J. Wallace, Frederick T. 
 Gardner, Johnson Wallis, Freeland 
 Giles, Joel Walker, Samuel 
 Gooch, Daniel W. Warner, Marshal 
 Goulding, Jason Waters, Asa H. 
 Graves, John W. Wetmore, Thomas 
 Gray, John C. Wheeler, William F. 
 
 Beebe, James M. 
 Bennett, William, Jr 
 Bigelow, Edward B. 
 Bigelow, Jacob 
 Blagden, George W. 
 Bliss, William C. 
 
 Hapgood, Seth 
 Haskins, William 
 Hayward, George 
 Henry, Samuel 
 Heywood, Levi 
 Hillard, George S. 
 
 Greene, William B. Wilbur, Daniel 
 Greenleaf, Simon Wilder, Joel 
 Griswold, Whiting Wilkinson, Ezra 
 Hale, Nathan Williams, J. B. 
 Hapgood, Lyman W. Wood, William H. 
 
 Braman, Milton P. 
 
 Howland, Abraham H. 
 
 Absent and not voting, 180. 
 
 Brewster, Osmyii 
 
 Hoyt, Henry K. 
 
 
 Brown, Artemas 
 
 Hubbard, William J. 
 
 
 Brown, Hammond 
 
 Hunt, Charles E. 
 
 Vol. III., page 123, 2d column, 4th line, for 
 
 Brownell, Frederick 
 
 Huntington, Asahel 
 
 "moderators" read monitors. 
 
 Bullen, Amos H. 
 
 Hurlburt, Samuel A. 
 
 
 Butler, Benjamin F. 
 
 Hyde, Benjamin D. 
 
 Vol. III., page 123, 1st column, 13th line from 
 
 Cady, Henry 
 Carter, Timothy W. 
 Case, Isaac 
 
 Ide, Abijah M., Jr. 
 James, William 
 Jenkins, John 
 
 the bottom, for " Mr. Otis, of Sumner," read Mr. 
 Sumner, for Otis. 
 
 Chandler, Amariah 
 
 Jenks, Samuel H. 
 
 
 Chapin, Chester W. 
 
 Kellogg, Martin R. 
 
 Vol. III., page 196, 1st column, 6th line from 
 
1853.] APPENDIX. 
 
 771 
 
 ERRATA. 
 
 the bottom, for " Mr. 3forton, of Tisbury," read Merritt, Simeon 
 
 Schouler, William 
 
 Mr. JVorton, of Tisbury. 
 
 Morey, George 
 Morton, Elbridge G. 
 
 Simmons, Perez 
 Sprague, Melzar 
 
 Vol. III., page 231, 2d column, last three lines, 
 for " Mr. Huntington, of Northampton, moved 
 
 Morton, Marcus 
 Morton, Marcus, Jr. 
 Morton, William S. 
 
 Spooner, Samuel "W. 
 Stevens, Charles G. 
 Stevenson, J. Thomas 
 
 to strike out the word seven, in the fifth line, 
 
 Nayson, Jonathan 
 
 Strong, Alfred L. 
 
 and insert in lieu thereof, the word ten, " read 
 
 Nute, Andrew T. 
 
 Swain, Alanson 
 
 Mr. Huntington, of Northampton, moved to 
 strike out the word seven, in the fifth line. 
 
 Ober, Joseph E. 
 Oliver, Henry K. 
 Orcutt, Nathan 
 
 Trair, Charles R. 
 Tyler, William 
 Underwood, Orison 
 
 Yol. III., page 545, 2d column, 27th line, in 
 stead of a division upon the question of recon 
 
 Osgood, Charles 
 Parker, Adolphus G. 
 Parker, Samuel D. 
 
 Upton, George B. 
 Walker, Amasa 
 Ward, Andrew H. 
 
 sidering the vote by which the resolves upon the 
 
 Parris, Jonathan 
 
 Warner, Samuel, Jr. 
 
 subject of Elections by Plurality had finally 
 
 Partridge, John 
 
 Waters, Asa H. 
 
 passed, the Yeas and Nays were taken, and re 
 
 Phinney, Silvanus B. 
 
 "Weston, Gershom B. 
 
 sultedyeas, 137 ; nays, 48 as follows : 
 
 Pomroy, Jeremiah 
 Richards, Luther 
 
 White, Benjamin 
 Whitney, James S. 
 
 
 Ring, Elkanah, Jr. 
 
 Wilkinson, Ezra 
 
 YEAS. 
 
 Rock wood, Joseph M. 
 
 "Wilson, Henry 
 
 Adams, Benjamin P. Edwards, Elisha 
 Adams, Shubael P. Edwards, Samuel 
 
 Ross, David S. 
 Sanderson, Amasa 
 
 Wood, Charles C. 
 
 Aldrich, P. Emory Ely, Homer 
 
 
 
 Allen, James B. Ely, Joseph M. 
 
 NATS. 
 
 Allen, Parsons Fellows, James K. 
 Alvord, D. W. Foster, Abram 
 Bancroft, Alpheus Freeman, James M. 
 Bates, Moses, Jr. French, Charles A. 
 Beal, John French, Rodney 
 Bennett, Zephaniah Frothingham, R., Jr. 
 Bigelow, Jacob Gale, Luther 
 Bird, Francis W. Gates, Elbridge 
 Boutwell, George S. Gilbert, Wanton C. 
 Bradbury, Ebenezer Giles, Joel 
 Breed, Hiram N. Greene, William B. 
 Brinley, Francis Griswold, Josiah W. 
 Briggs, George N. Griswold, Whiting 
 Brown, Adolphus F. Hale, Nathan 
 Brown, Hammond Hallett, B. F. 
 Brown, Hiram C. Hapgood, Lyman W. 
 Brownell, Frederick Hapgood, Seth 
 Brownell, Joseph Harmon, Phineas 
 Bryant, Patrick Hawkes, Stephen E. 
 Bullock, Rufus Heath, Ezra, 2d 
 Burlingame, Anson Hewes, James 
 Butler, Benjamin F. Hillard, George S. 
 Cady, Henry Hobart, Henry 
 Carruthers, William Hood, George 
 Case, Isaac Howland, Abraham H. 
 
 Allen, Joel C. 
 Alley, John B. 
 Allis, Josiah 
 Baker, Hillel 
 Bartlett, Russel 
 Booth, William S. 
 Boutwell, Sewell 
 Buck, Asahel 
 Bumpus, Cephas C. 
 Clark, Ransom 
 Crittenden, Simeon 
 Dean, Silas 
 Denton, Augustus 
 Eaton, Calvin D. 
 Fay, Sullivan 
 French, Samuel 
 Gardner, Henry J. 
 Gilbert, Washington 
 Giles, Charles G. 
 Green, Jabez 
 Hale, Artemas 
 Haskins, William 
 Hathaway, Elnathan P. 
 Hinsdale, William 
 
 Hoyt, Henry K. 
 Jenkins, John 
 Knowlton, William H. 
 Knox, Albert 
 Ladd, Gardner P. 
 Lawton, Job G., Jr. 
 Marcy, Laban 
 Miller, Seth, Jr. 
 Pemiiman, John 
 Perkins, Daniel A. 
 Pierce, Henry 
 Rawson, Silas 
 Rice, David 
 Royce, James C. 
 Sherril, John 
 Simonds, John W. 
 Stiles, Gideon 
 Thompson, Charles 
 Tilton, Horatio W. 
 Turner, David P. 
 Wallace, Frederick T. 
 Wallis, Freeland 
 Wilder, Joel 
 Winslow, Levi M. 
 
 Chapin, Chester W. Hubbard, William J. 
 
 
 
 Childs, Josiah Hunt, William 
 
 ABSENT. 
 
 Churchill, J. McKean Kellogg, Giles C. 
 
 Abbott, Alfred A. 
 
 Bates, Eliakim A. 
 
 Clark, Salah Kendall, Isaac 
 
 Abbott, Josiah G. 
 
 Beach, Erasmus D. 
 
 Clarke, Alpheus B. Kingman, Joseph 
 
 Allen, Charles 
 
 Beebe, James M. 
 
 Cleverly, William Knight, Hiram 
 
 Andrews, Robert 
 
 Bell, Luther V. 
 
 Cole, Lansing J. Knight, Joseph 
 
 Appleton, William 
 
 Bennett, William, Jr. 
 
 Cushman, Thomas Knowlton, Charles L. 
 
 Aspinwall, William 
 
 Bigelow, Edward B. 
 
 Dana, Richard H., Jr. Knowlton, J. S. C. 
 
 At wood, David C. 
 
 Bishop, Henry W. 
 
 Davis, Charles G. Langdon, Wilber C. 
 
 Austin, George 
 
 Blagden, George W. 
 
 Deming, Elijah S. Little, Otis 
 
 Ayres, Samuel 
 
 Bliss, Gad O. 
 
 Duncan, Samuel Livermore, Isaac 
 
 Ballard, Alvah 
 
 Bliss, William C. 
 
 Dunham, Bradish Loomis, Justin E. 
 
 Ball, George S. 
 
 Bradford, William J, A. 
 
 Eames, Philip Lothrop, Samuel K. 
 
 Banks, Nathaniel P., Jr. Braman, Milton P. 
 
 Earle, John M. Marvin, Abijah P. 
 
 Barrows, Joseph 
 
 Brewster, Osymn 
 
 Easland, Peter Marvin, Theophilus R. 
 
 Bartlett, Sidney 
 
 Bronson, Asa 
 
 Easton, James, 2d Mason, Charles 
 
 Barrett, Marcus 
 
 Brown, Alpheus R. 
 
772 
 
 APPENDIX. [1853. 
 
 EKIIATA. 
 
 Brown, Artemas 
 
 Henry, Samuel Plunkett, William C. Talbot, Thomas 
 
 Bullen, Amos H. 
 
 Hersey, Henry 
 
 Pool, James M. Taylor, Ralph 
 
 Carter, Timothy W. 
 
 Hewes, William II. 
 
 Powers, Peter Thayer, Joseph 
 
 Chandler, Amariah 
 
 Heywood, Levi 
 
 Preston, Jonathan Thayer, Willard, 2d, 
 
 Chapiii, Daniel E. 
 
 Ho bar t, Aaron, 
 
 Prince, F. O. Thomas, John W. 
 
 Chapin, Henry 
 
 Hobbs, Edwin 
 
 Putnam, George Tileston, Edmund P. 
 
 Choate, Rufus 
 
 Holder, Nathaniel 
 
 Putnam, John A. Tilton, Abraham 
 
 Clark, Henry 
 Clarke, Stillman 
 
 Hooper, Foster 
 Hopkinson, Thomas 
 
 Rantoul, Robert Tower, Ephraim 
 Read, James Turner, David 
 
 Coggin, Jacob 
 
 Houghton, Samuel 
 
 Reed, Sampson Tyler, John S. 
 
 Cogswell, Nathaniel 
 
 Howard, Martin 
 
 Richardson, Daniel Upham, Charles W. 
 
 Cole, Sumner 
 
 Hunt, Charles E. 
 
 Richardson, Nathan Yiles, Joel 
 
 Conkey, Ithamar 
 
 Huntington, Asahel 
 
 Richardson, Samuel II. Vinton, George A. 
 
 Cook, Charles E. 
 
 Huntington, Charles P. 
 
 Rockwell, Julius Walcott, Samuel B. 
 
 Cooledge, Henry F. 
 
 Huntington, George H. 
 
 Rogers, John Wales, Bradford L. 
 
 Copeland, Benjamin F. 
 
 Hurlburt, Samuel A. 
 
 Sampson, George R. Walker, Samuel 
 
 Crane, George B. 
 
 Hurlbut, Moses C. 
 
 Sanderson, Chester Warner, Marshal 
 
 Cressy, Oliver S. 
 
 Hyde, Benjamin D. 
 
 Sargent, John Weeks, Cyrus 
 
 Crockett, George W. 
 
 Ide, Abijah M., Jr. 
 
 Sheldon, Luther Wetmore, Thomas 
 
 Crosby, Leander 
 
 Jackson, Samuel 
 
 Sherman, Charles Wheeler, William F. 
 
 Cross, Joseph "W. 
 
 Jacobs, John 
 
 Sikes, Chester White, George 
 
 Crowell, Seth 
 
 James, William 
 
 Sleeper, John S. Whitney, Daniel S. 
 
 Crowninshield, F. B. 
 
 Jenks, Samuel H. 
 
 Smith, Matthew Wilbur, Daniel 
 
 Cummings, Joseph 
 
 Johnson, John 
 
 Souther, John Wilbur, Joseph 
 
 Curtis, Wilber 
 
 Kellogg, Martin II. 
 
 Stacy, Eben II. Wilkins, John H. 
 
 Cushman, Henry W. 
 
 Keyes, Edward L. 
 
 Stetson, Caleb Williams, Henry 
 
 Cutler, Simeon N. 
 
 Kimball, Joseph 
 
 Stevens, Granville Williams, J. B. 
 
 Davis, Ebenezer 
 
 Kinsman, Henry W. 
 
 Stevens, Joseph L., Jr. Wilson, Milo 
 
 Davis, Isaac 
 
 Knight, Jefferson 
 
 Stevens, William Wilson, Willard 
 
 Davis, John 
 
 Kuhn, George H. 
 
 Storrow, Charles S. Winn, Jonathan B. 
 
 Davis, Robert T. 
 
 Ladd, John S. 
 
 Stutson, William Wood, Nathaniel 
 
 Davis, Solomon 
 
 Lawrence, Luther 
 
 Sumrier, Charles Wood, Otis 
 
 Dawes, Henry L. 
 
 Leland, Aldeii 
 
 Sumner, Increase Wood, William H. 
 
 Day, Gilman 
 
 Lincoln, Abishai 
 
 Taber, Isaac C. Woods, Josiah B. 
 
 Dehon, William 
 
 Lincoln, Frederic W., Jr. 
 
 Taft, Arnold Wright, Ezekiel 
 
 Denison, Hiram S. 
 
 Littleh eld, Tristram 
 
 
 DeWitt, Alexander 
 
 Lord, Otis P. 
 
 Absent and not voting, 234. 
 
 Doane, James C. 
 
 Loud, Samuel P. 
 
 
 Dorm an, Moses 
 
 Lowell, John A. 
 
 
 Durgin, John M. 
 
 Marble, William P. 
 
 In the speech of Mr. Parker, of Cambridge, in 
 
 Eaton, Lilley 
 
 Meader, lleuben 
 
 the first volume : 
 
 Eustis, William T. 
 
 Mixter, Samuel 
 
 Tage 145, 1st column, 7th line from the bottom, 
 
 Farwell, A. G. 
 
 Monroe, James L. 
 
 For" whatever other law might have been," 
 
 Fisk, Lyman 
 
 Moore, James M. 
 
 Read an d whatever other law may have been. 
 
 Fiske, Emery 
 Fitch, Ezekicl W. 
 
 Morss, Joseph B. 
 Nash, Hiram 
 
 Page 148, 2d column, 17th and 18th lines from the bottom, 
 For" that he regarded this Act of 1852, as a charter, that 
 
 Foster, Aaron 
 
 Newman, Charles 
 
 it was a contract," 
 
 Fowle, Samuel 
 
 Nichols, William 
 
 Read that regarding this Act of 1852 as a charter, it wat 
 
 Fowler, Samuel P. 
 
 Norton, Alfred 
 
 a contract. 
 
 French, Charles II. 
 
 Noyes, Daniel 
 
 Same page and column, 13th, 14th and 15th lines from the bot 
 
 Gardner, Johnson 
 
 Orne, Benjamin S. 
 
 tom, 
 
 Gooch, Daniel W. 
 Gooding, Leonard 
 
 Packer, E. Wing 
 Paige, James W. 
 
 For " he regarded this Act of 1852, as the Constitution 
 of this body, and that the legislature therefore had no 
 power " 
 
 Gould, Robert 
 Goulding, Dalton 
 
 Paine, Benjamin 
 Paine, Henry 
 
 Head regarding this Act 0/1852 as the Constitution of this 
 body, the legislature had no power. 
 
 Goulding, Jason 
 Graves, John W. 
 
 Park, John G. 
 Parker, Joel 
 
 Same page and column, 2d, 3d and 4th lines from the bottom. 
 For" I understood them to be maintained by him as sug 
 
 Gray, John C. 
 
 Parsons, Samuel C. 
 
 gestions which had been made, and not as propositions 
 
 Greenleaf, Simon 
 
 Parsons, Thomas A. 
 
 of his own," 
 
 Hadley, Samuel P. 
 Hall, Charles B. 
 Hammond, A. B. 
 
 Payson, Thomas E. 
 Peabody, George 
 Peabody, Nathaniel 
 
 Read / understood them to be maintained by Mm upon 
 suggestions which had been made, and not founded upon 
 propositions of his own. 
 
 Haskell, George 
 Hay den, Isaac 
 
 Pease, Jeremiah, Jr. 
 Perkins, Jesse 
 
 Page 149, 1st column, 15th and 16th lines, 
 For "Then regarding it in that light, the conclusion was 
 
 Hayward, George 
 Hazewell, Charles C. 
 
 Perkins, Jonathan C. 
 Perkins, Noah C. 
 
 drawn," 
 Read Then regarding it in the light of a charter the conclit- 
 sion was drawn. 
 
 Heard, Charles 
 
 Phelps, Charles 
 
 Same page and column, 30th and 31st lines, 
 
1853.] 
 
 APPENDIX, 
 
 773 
 
 ERRATA. 
 
 For" But while arguing that it is a charter the gentle 
 man forgets," 
 
 Read But while arguing upon it as a charter the gentleman 
 forgot. 
 
 Same page and column, 44th line, 
 For" without an incorporation," 
 Read the act of incorporation, 
 
 Same page and column, 47th and 48th lines, 
 For "And now in relation to our Constitution; gentle 
 men say that the Act," 
 
 Read And now in relation to it as a Constitution ; the 
 gentleman says that if the Act. 
 
 In the next line strike out " and ". 
 Page 151, 1st column, 7th line, 
 For " I relate this anecdote to show the feeling which 
 
 existed," 
 
 Read This anecdote was related to show the feeling of im 
 portance which existed. 
 And in the 10th line, read But the reply. 
 Page 158, 1st column, 7th and 8th lines from the bottom, 
 For" The response of the people has given a character 
 to the law. It has affixed to it something beyond the 
 law," 
 
 Read Has the response of the people given a character to 
 the law ? Has it affixed to it sojncthing different from a 
 law? 
 
 Page 159, 1st column, 17th line, 
 
 For-" But let us admit that they have the power," 
 
 Read But the people have the power. 
 
 The reader M ill observe several other verbal errors in that 
 speech more or less apparent, there having been no revision 
 of it by the author. 
 
 In speeches of Mr. Hallett, for Wilbraham, in 
 the first volume : 
 
 Page 168, 2d column, 4th line from the bottom, 
 Read " The people have a right to make their [funda 
 mental] laws." 
 
 Page 332, 1st column, 20th line, 
 
 Strike out " Lord " before "Bacon." 
 Page 367, 1st column, 15th line, 
 
 For" United States Constitution," 
 
 Read State Constitution. 
 
 Page 437, 1st column, 8th line from the bottom, 
 For" IJhode Island had a council," 
 Read Mary Ian d. 
 
 Page 439, 2d column, 19th line, 
 For" The two boards separately," 
 Read Separated. 
 
 Page 497, 2d column, second line, 
 For" line a leaf," 
 Read live a leaf in history, Sfc. 
 
 Page 506, 2d column, 24th line, 
 For" Shone on, and shine on," 
 Read Shone on and shone on. 
 
 Page 567, 1st column, 28th line, 
 
 For" the importation of these foreigners who come here 
 to become citizens in a single year, adds," <fec. 
 
 Read the immigration of those foreigners who come here 
 to become citizens : in a single year adds more solid cap 
 ital, rc. 
 
 Page 910, 1st column, 21st line, 
 For "doubt," 
 Read doubts. 
 
 Same page, 2d column, 3d line, 
 Put a comma after " eighteen assistants." 
 
 Page 911, 2d column, 14th line, 
 After " we hold." put a comma instead of a period. 
 
 Page 914, 1st column, 28th line, 
 For "every," 
 Read very. 
 
 Page 921, 1st column, 23d line, add no before " danger." 
 
 In the speech of Mr. Hathaway, of Freetown, 
 in the first volume : 
 Page 81, 2d column, llth line, 
 
 For "nothing," <fcc. 
 
 Read but little, if anything to do, rc. 
 
 Same page and column, 28th line from the bottom, 
 For" I suppose that under this clause," &c. 
 Head I do not suppose, fyc., and at the end of the sen 
 tence, after the wozd "vacancy," add, but would have 
 the right to impose a fine. 
 
 Same page and column, 18th line from the bottom, 
 After the word " represented" add, before issuing a pre 
 cept to such town to fill the vacancy. 
 
 Same page and column, 15th line from the bottom, 
 After the word " resigned," add by the acceptance of an 
 office incompatible with the office of a representative. 
 
 Same page and column, 2d line from the bottom, 
 Between the words "office which," insert the words, 
 the holding of. 
 
 Page 82, 1st column, 6th and 7th lines, 
 For" we have no power to do so, because," 
 Read it does not follow that we have power to do it, as. 
 
 Same page and column, 29th line, 
 
 At the end of Mr. Hathaway s remarks, after the word 
 "represented," 
 
 Add in the formation of an organic law for the govern 
 ment of the people of which such toicnis a part. 
 
 Mr. Hathaway s remarks are, in this matter, very imper 
 fectly reported, probably from the cause of the difficulty of 
 hearing in the Music Hall, where these remarks were made. 
 
 In the speech of Mr. Wilson, of Natick, in the 
 third volume : 
 
 Page 247, 2d column, 8th line from the bottom, 
 For " Governor Leonard," 
 Read Governor St-ward. 
 
INDEX 
 
 TO 
 
 VOLUMES I. ,11. AND III. 
 
 ABBOTT, JOSIAH G. 
 Contested Seat of Delegate for Walpole, Vol. i. 
 
 104-106, 112, 113. 
 
 Declaration of Rights, iii. 428, 429. 
 House of Representatives, ii. 374, 375, 626-628 ; 
 
 iii. 585, 586. 
 Judiciary, iii. 210, 211. 
 Memorials, i. 88. 
 Militia, ii. 77, 78, 97, 98. 
 Motions, i. 139 ; iii. 284. 
 Plurality, i. 286-289 ; iii. 152, 153, 284. 
 Qualifications of Voters, i. 695-697. 
 Reports from Committees, i. 93, 130, 930, 931. 
 Rights of the Jury, iii. 509, 510. 
 Absence, leave of. Vol. i. 123, 234, 407, 509, 612, 
 
 614, 629, 986 ; ii. 162, 568 ; iii. 196, 337, 474, 
 
 570, 603. 
 
 ADAMS, SHUBAEL P. 
 Closing Debate, Vol. iii. 100, 101. 
 Council and Lieutenant-Governor, i. 468, 471 ; iii. 
 
 271. 
 
 Declaration of Rights, iii. 483. 
 Habeas Corpus, (see Declaration of Rights.) 
 House of Representatives, ii. 198, 201, 205, 209. 
 Judiciary, iii. 180, 202. 
 Limiting Debate, ii. 120, 121. 
 Motions, i. 488 ; ii. 205, 220, 253; iii. 84, 108, 131, 
 
 180,271,402. 
 New Towns, iii. 84. 
 Orders, ii. 99. 
 
 Plurality, i. 393, 394 ; iii. 108, 131. 
 Address to the People. Vol. iii. 719, 721. 
 Adjournment. Vol. i. 39-44, 123, 202, 213-216, 296, 
 
 340, 448, 487, 488, 540, 748, 966 ; ii. 162, 163, 
 
 218, 221, 462, 463, 657 ; iii. 520, 646, 647. 
 Adjournment, final. Vol. iii. 49, 50, 729. 
 ALDRICH, P. EMORY. 
 Closing Debate, Vol. i. 651, 652. 
 Distribution of Books, iii. 436. 
 Leave of Absence, i. 407. 
 Motions, i. 626. 
 Orders, i. 971. 
 Plurality, iii. 561. 
 Qualifications of Voters, i. 651, 682, 683, 734, 739 ; 
 
 ii. 117, 119, 273, 277, 278. 
 ALLEN, CHARLES. 
 Adjournment, Vol. ii. 220, 221. 
 Berlin Vacancy, i. 45, 49, 72, 73. 
 Constitutional Conventions, iii. 350, 351, 530,531. 
 Contested Seat of the Delegate for Walpole, i. 
 
 108, 109. 
 
 Declaration of Rights, iii. 416, 417. 
 
 Frame of Government, i. 790, 791, 805, 807, 809, 
 861, 959, 960. 
 
 House of Representatives, ii. 317, 363, 377, 378, 
 419, 420, 630, 632. 
 
 Imprisonment for Debt, iii. 411, 484. 
 
 Judiciary, iii. 181, 202, 203, 234. 
 
 Limiting Debate, iii. 2, 130. 
 
 Mode of Submitting the Amended Constitution 
 to the People, iii. 666. 
 
 Motions, i. 33, 543, 544, 546, 650, 651, 797, 798, 
 861 ; ii. 267, 384, 385 ; iii. 2, 40, 130, 531, 532. 
 
 Petitioning the Legislature, i. 544, 545. 
 
 Plurality, i. 262, 266, 284-286, 290, 419-421, 424, 
 432, 433 ; iii. 145, 146, 164. 
 
 Reports from Committees, i. 72, 104, 202, 424, 
 425, 526, 650, 796 ; ii. 266, 267. 
 
 Rights of the Jury, iii. 454-456. 
 ALLEN, PARSONS. Leave of Absence, Vol. 
 
 iii. 603. 
 ALLEY, JOHN B. 
 
 Corporations, Vol. ii. 265. 
 
 House of Representatives, ii. 144-148, 232, 233, 
 420. 
 
 Motions, ii. 143. 
 
 Personal Explanation, ii. 832, 833. 
 ALVORD, D. W. 
 
 Closing Debate, Vol. iii. 520. 
 
 Constitutional Conventions, iii. 524. 
 
 Credentials, i. 178. 
 
 Distribution of Debates, iii. 723. 
 
 House of Representatives, iii. 585. 
 
 Judiciary, iii. 231. 
 
 Justices of the Peace, iii. 366, 370. 
 
 Loan of the State Credit, ii. 639, 644-647. 
 
 Motions, iii. 520, 547, 723. 
 
 Orders, i. 104. 
 
 Plurality, iii. 547, 554, 555. 
 
 Question of Order, iii. 551. 
 Amendment and Enrolment. Vol. i. 160; ii. 562- 
 
 568, 714-724. 
 APPLETON, WILLIAM. 
 
 Resignation of Mr. Rogers, Vol. i. 103. 
 Appendix to Debates. Vol. iii. 219, 265, 629. 
 ASPINWALL, WILLIAM. 
 
 Amendments, &c., Vol. iii. 123. 
 
 Choice of second Secretary, i. 9. 
 
 Declaration of Rights, iii. 375. 
 
 House of Representatives, i. 921. 
 
 Limiting Debate, iii. 130, 265, 266. 
 
 Militia, ii. 114. 
 
776 
 
 INDEX. 
 
 [1853. 
 
 MEMBERS AND SUBJECTS. 
 
 Mode of Procedure, i. 35, 36. 
 
 Mode of submitting the Amended Constitution 
 to the People, iii. 697. 
 
 Motions, i. 67, 701, 758 ; iii. 523. 
 
 New Towns, iii. 148, 242. 
 
 Plurality, i. 294, 295, 306, 377, 378, 416 ; iii. 141. 
 
 Question of Order, iii. 540. 
 
 Rights of the Jury, iii. 465. 
 
 Rules and Orders, i. 54. 
 
 Secretary, Treasurer, &c., i. 705, 719, 720, 725-727. 
 Assignment, Special. Vol. i. 797 ; ii. 556, 756 ; 
 
 iii. 472, 474. 
 ATWOOD, DAVID C. 
 
 Leave of Absence, Vol. iii. 603. 
 AUSTIN, GEORGE. 
 
 Motions, Vol. i. 340, 842. 
 
 BALL, GEORGE S. 
 
 Encouragement of Literature, Vol. iii. 622. 
 
 Militia, ii. 25, 26. 
 
 Motions, i. 842. 
 
 Plurality, i. 244. 
 
 Question of Order, iii. 554. 
 
 Sectarian Schools, (see Encouragement of Lit 
 erature.) 
 
 Ballot, Freedom of. Vol. i. 94, 746-758. 
 BANKS, NATHANIEL P., JR. 
 
 Address on taking the chair of the Convention, 
 Vol. i. 9,10. 
 
 Address on Final Adjournment, iii. 728, 729. 
 
 Census, ii. 388, 389. 
 
 Elected President of the Convention, i. 9. 
 
 House of Representatives, ii. 210-213 ; iii. 598, 
 599. 
 
 Militia, ii. 12-14, 26, 73. 
 
 Plurality, i. 420, 423. 
 Banks and Banking. Vol. i. 144, 217, 974 ; iii. 290, 
 
 318-337, 351-360, 714. 
 BARTLETT, SIDNEY. 
 
 Act calling the Convention, Vol. i. 34. 
 
 Amendments, c., ii. 566. 
 
 Berlin Vacancy, i. 45, 79-81, 85, 91, 92. 
 
 Corporations, ii. 257. 
 
 Council, i. 533, 535. 
 
 Declaration of Rights, iii. 480. 
 
 Habeas Corpus, (see Declaration of Rights.) 
 
 House of Representatives, ii. 617, 619-626. 
 
 Judiciary, iii. 207, 222, 226-228, 384, 385. 
 
 Justices of the Peace, iii. 399, 401. 
 
 Militia, ii. 96, 97. 
 
 Motions, i. 34, 45, 143. 
 
 Order, i. 32, 36. 
 
 Place of Meeting, i. 32, 36. 
 
 Rules and Orders, i. 34. 
 
 Vacancy, i. 143. 
 BATES, MOSES, JR. 
 
 Adjournment, Vol. i. 296, 359. 
 
 Amendments, &c., ii. 563. 
 
 Appendix to Report of Debates, iii. 219. 
 
 Assignment of Seats, i. 130. 
 
 Berlin Vacancy, i. 45, 49, 183, 184. 
 
 Closing Debate, i. 526 ; ii. 793. 
 
 Constitutional Conventions, iii. 494. 
 
 Corporations, iii. 73. 
 
 Council, iii. 273. 
 
 Declaration of Rights, iii. 436, 481. 
 
 Distribution of Books, iii. 437. 
 
 Distribution of Report of Debates, iii. 640, 641, 
 
 722, 723. 
 House of Representatives, ii. 216, 236, 369, 377, 
 
 395 ; iii. 592-594. 
 Imprisonment for Debt, iii. 487. 
 Judiciary, ii. 793, 830 ; iii. 628. 
 Lieutenant-Governor, i. 535, 538, 540. 
 Motions, i. 178, 213, 271, 296, 608, 690, 770, 795, 
 
 966 ; ii. 75, 556, 753, 777, 830. 
 New Towns, iii. 240. 
 Orders, i. 13, 34, 87, 130, 217. 
 Pay Roll, iii. 570. 
 Per Diem of Members, i. 217. 
 Place of Meeting, i. 43. 
 Plurality, i. 271, 274, 422, 423 ; iii. 140, 561, 566- 
 
 568. 
 Qualifications of Voters, i. 559, 569, 669, 670, 690, 
 
 692 ; ii. 273, 274. 
 
 Question of Order, iii. 540, 541, 552. 
 Quorum of the House, ii. 839. 
 Reports, i. 121 ; ii. 332 ; iii. 310, 569, 629. 
 Secretary, Treasurer, &c., i. 706, 707, 712, 714, 715, 
 
 719, 722, 727, 729, 759, 760, 764, 769, 770 ; ii. 469, 
 
 540. 
 
 Senate, i. 201. 
 BEACH, ERASMUS D. 
 
 House of Representatives, Vol. ii. 216, 459-461. 
 Motions, ii. 246, 461. 
 Loan of the State Credit, ii. 656. 
 Berlin Vacancy. Vol. i. 34, 44, 50, 72, 80-87, 94, 
 
 103, 114, 124, 140, 144, 159, 162, 177, 178, 188, 
 
 340. 
 
 BIGELOW, EDWARD B. 
 Corporations, Vol. iii. 73. 
 New Towns, iii. 78. 
 BIRD, FRANCIS W. 
 
 Adjournment, Vol. i. 449, 558. 
 Amendments, &c., ii. 562, 564. 
 Constitutional Conventions, iii. 307, 404. 
 Corporations, ii. 257, 258, 260, 266 ; iii. 72. 
 Council and Lieutenant-Governor, i. 486. 
 Death of Mr. Gourgas, ii. 740, 741. 
 Declaration of Rights, iii. 372, 376, 420, 470, 471. 
 Distribution of the Amended Constitution, iii. 
 
 637-639. 
 Distribution of the Report of Debates, iii. 638, 
 
 639, 723. 
 
 Encouragement of Literature, ii. 546-549 ; iii. 615. 
 Frame of Government, i. 955, 957- 
 Governor, i. 329. 
 House of Representatives, i. 936-941 ; ii. 158, 
 
 205, 206, 455, 591. 
 Imprisonment for Debt, (see Declaration of 
 
 Rights.) 
 
 Judiciary, ii. 818-820, 830 ; iii. 22-5, 628. 
 Lieutenant-Governor, i. 535, 536, 540. 
 Loan of the State Credit, ii. 665. 
 Militia, ii. 6, 7, 26-30, 249. 
 Mode of Submitting the Amended Constitution 
 
 to the People, iii. 683. 
 
1853.] 
 
 INDEX. 
 
 777 
 
 MEMBERS AND SUBJECTS. 
 
 Motions, i. 493, 557, 700, 744, 761, 842, 875, 966; 
 
 ii. 266, 324, 330, 455, 483, 484, 496, 552, 562, 703, 
 
 830, 834, 840 ; iii. 148, 263, 337, 371, 372, 489, 
 
 533, 628, 629, 639, 723. 
 New Towns, iii. 242. 
 Oaths and Subscriptions, i. 368 ; ii. 552. 
 Orders, i. 178, 203 ; iii. 721. 
 Pay Roll, ii. 330. 
 Pardoning Power, i. 969, 970. 
 Petitioning the Legislature, i. 546. 
 Population and Representation, i. 445-547. 
 Preservation of Records, iii. 275, 629. 
 Plurality, iii. 278, 279, 337, 546, 547, 557, 559, 569, 
 
 578. 
 Printing of the Revised Constitution, &c., iii. 
 
 721. 
 
 Protest of Colored Citizens, iii. 724, 726. 
 Qualifications of Voters, i. 552, 700, 701. 
 Quorum of the House, ii. 838. 
 Reports from Committees, iii. 148. 
 Secretary, Treasurer, &c., i. 713, 714, 759, 761, 
 
 778, 906. 
 
 Sectarian Schools, (see Encouragement of Lit 
 erature.) 
 
 Senators in Congress, i. 384. 
 University at Cambridge, iii. 76, 77. 
 BISHOP, HENRY W. 
 Justices of the Peace, Vol. i. 489-492 ; iii. 361- 
 
 363. 
 
 Loan of the State Credit, iii. 17, 20. 
 Qualifications of Voters, i. 676-678, 683 ; ii. 498- 
 
 501. 
 
 Reports from Committees, i. 489 ; ii. 547. 
 Secretary, Treasurer, &c., i. 489, 703-705, 707- 
 
 709, 711, 712, 719, 721, 722, 763, 764, 766, 776, 
 
 777 ; ii. 469, 470, 475-478. 
 BLAGDEN, GEORGE W. 
 Encouragement of Literature, Vol. ii. 543, 546- 
 
 548. 
 
 Offered Prayer,i. 13. 
 BLISS, WILLIAM C. 
 Time of Meeting, Vol. i, 733. 
 Leave of Absence, iii. 337. 
 Books, distribution of. Vol. i. 14, 50, 87, 177, 234, 
 
 249 ; iii. 384, 436, 722, 724. 
 Boston Vacancy. Vol. i. 92, 103, 493. 
 BOUTWELL, GEORGE S. 
 Address to the People of the Commonwealth, 
 
 Vol. iii. 718, 721. 
 Adjournment, iii. 220. 
 Amendments and Enrolment, ii. 563-567. 
 Appeared as Delegate for Berlin, i. 340. 
 Appendix to Report of Debates, iii. 219. 
 Asked leave to submit a Report in print, iii. 219. 
 Closing Debate, ii. 435, 436, 792, 793. 
 Council and Lieutenant-Governor, i. 464-468, 543, 
 
 544; ii. 112-114; iii. 268,274. 
 Death of Mr. Gourgas, ii. 738, 739, 743. 
 Declaration of Rights, iii. 375, 376. 
 Frame of Government, i. 961, 962. 
 Governor, iii. 643. 
 House of Representatives, i. 891-899 ; ii. 267, 268, 
 
 378, 383, 462, 576, 577, 597-607, 613. 
 
 52 s 
 
 Judiciary, ii. 792-93 ; iii. 214-216. 
 
 Justices of the Peace, iii 372. 
 
 Loan of the State Credit, ii. 115. 
 
 Militia, ii. 76. 
 
 Mode of Submitting the Amended Constitution 
 
 to the People, iii. 648, 650, 651, 653-658, 661-665, 
 
 670-672, 681, 682, 685, 689-691, 693, 695, 700, 
 
 708, 711, 716, 718. 
 Motions, i. 543,544 ; ii. 33.59, 114, 383, 433, 468, 
 
 534, 556, 656, 792 ; iii. 47, 220, 372, 376, 648, 
 
 724. 
 
 Orders, ii. 33. 
 Qualifications of Voters, i. 649, 650, 666-668, 671, 
 
 680 ; ii. 515. 
 
 Question of Order, iii. 644. 
 Reports, iii. 643, 648, 718. 
 Resolutions, iii. 648, 649. 
 Uniformity of Receiving Votes at Elections, iii. 
 
 388. 
 University at Cambridge, iii. 37, 43, 45-48, 75, 
 
 247. 
 
 BRADBURY, EBENEZER. 
 Closing Debate, Vol. i. 508, 509 ; ii. 37, 38, 244 ; 
 
 iii. 100, 101. 
 
 Constitutional Conventions, iii. 518, 520. 
 Frame of Government, i. 791, 792, 805. 
 Governor, i. 320, 321 . 
 House of Representatives, ii. 161, 207, 209, 210, 
 
 233-236, 244. 
 Judiciary, iii. 209. 
 Lieutenant-Governor, i. 538. 
 Militia, ii. 70. 
 Motions, i. 626 ; iii. 101. 
 New Towns, iii. 85. 
 Pardoning Power, i. 971, 973. 
 Plurality, i. 420, 429; iii. 116-118, 165. 
 Qualifications of Voters, i. 626. 
 Question of Order, i. 626. 
 Quorum of the House, ii. 839. 
 Senate, i. 229, 230. 
 BRADFORD, WILLIAM J. A. 
 Constitutional Conventions, iii. 343, 344. 
 Corporations, ii. 125, 256. 
 Declaration of Rights, iii. 382, 383. 
 Elections, i. 103. 
 Governor, i. 322, 323. 
 House of Representatives, ii. 140-143. 
 Judiciary, ii. 701. 
 Limitation of Debate, ii. 121. 
 Loan of the State Credit, ii. 122. 
 Militia, ii. 3, 30,31,72. 
 Motions, i. 650 ; ii. 701. 
 Orders, i. 122, 731. 
 Qualifications of Voters, i. 676. 
 Rules and Orders, i. 34, 54. 
 Secretary, Treasurer, &c., i. 770. 
 Senate, i. 191, 192, 197, 201, 212, 213, 231. 
 BRAMAN, MILTON P. 
 Place of Meeting, Vol. i. 24. 
 Qualifications of Voters, i. 701. 
 University at Cambridge, iii. 36-44. 
 BREED, HIRAM N. 
 Judiciary, Vol. iii. 232. 
 
778 
 
 INDEX. 
 
 [1853. 
 
 MEMBEBS AND SUBJECTS. 
 
 Motions, i. 796, 931 ; ii. 121, 163, 332, 463, 496 ; 
 
 iii. 49, 384, 414. 
 BRINLEY, FRANCIS. 
 
 Closing Debate, Vol. ii. 34. 
 
 Frame of Government, i. 780, 781. 
 
 House of Representatives, ii. 155, 161. 
 
 Motions, ii. 33, 59. 
 
 Oaths and Subscriptions, ii. 484, 485, 488, 550-552, 
 555, 556. 
 
 Plan of Representation, i. 777. 
 
 Secretary, Treasurer, &c., i. 712, 713. 
 BRIGGS, GEORGE N. 
 
 Adjournment, Vol. ii. 462, 463. 
 
 Amendments and Enrolment, iii. 267. 
 
 Census, ii. 388, 390-392. 
 
 Closing Debate, ii. 36-38, 436, 437, 792, 793. 
 
 Constitutional Conventions, iii. 297-299, 300-303, 
 310, 312-314, 342-351. 
 
 Corporations, ii. 125. 
 
 Council and Lieutenant-Governor, i. 519-521, 
 523 ; iii. 270, 271, 273. 
 
 Death of Mr. Gourgas, ii. 742. 
 
 Declaration of Rights, iii. 375, 378, 418, 424, 425, 
 471. 
 
 Distribution of Books, iii. 436, 437. 
 
 Encouragement of Literature, iii. 131. 
 
 Frame of Government, i. 950, 960, 961. 
 
 Governor, i. 321, 322, 333, 341, 342. 
 
 House of Representatives, ii. 380, 381, 395-397, 
 45iJ, 453, 612, 617 ; iii. 604, 605. 
 
 Imprisonment for Debt, iii. 486,487, 497. 
 
 Judiciary, ii. 689-691, 792, 793 ; iii. 211, 225. 
 
 Justices of the Peace, iii. 337, 403. 
 
 Militia, ii. 14-16, 69, 70, 72, 73. 
 
 Motions, i. 614, 651, 653, 746, 862; ii. 52, 162; 
 iii. 40, 131, 310, 341, 484. 
 
 Orders, i. 33. 
 
 Pay Roll, iii. 125, 128. 
 
 Pardoning Power, i. 977, 980, 981. 
 
 Petitions, i. 614. 
 
 Place of Meeting, i. 67, 69, 70. 
 
 Plurality, i. 281-284, 287, 423, 429 ; iii. 155, 157, 
 165. 
 
 Plan of Representation, ii. 161. 
 
 Preservation of the Records, iii. 275. 
 
 Qualifications of Voters, i. 608, 645, 646, 648, 650, 
 653, 667-669, 672, 680. 
 
 Question of Order, iii. 539, 542, 543, 645. 
 
 Quorum of the House, ii. 837. 
 
 Reports, i. 67 ; ii. 121, 383,384, 433, 434. 
 
 Resolutions, i. 383 ; iii. 643. 
 
 Resolution of thanks to the President of Con 
 vention, iii. 642, 643. 
 
 Kules and Orders, i. 33. 
 
 Secretary, Treasurer, &c., i. 759, 760, 774-776 ; ii. 
 469. 
 
 Sectarian Schools, (see Encouragement of Lit 
 erature.) 
 
 Time of Meeting, i. 796, 797. 
 
 University at Cambridge, ii. 683, 684 ; iii. 45-47. 
 BROWN, ADOLPHUS F. 
 
 Banking, Vol. iii. 356. 
 
 Motions, i. 233, 340, 385, 571, 743, 769 ; iii. 356. 
 
 BROWN, ALPHEUS R. 
 Contested Seat for Walpole, Vol. i. 104. 
 Constitutions of the Several States, i. 87. 
 Elections, i. 102, 103. 
 House of Representatives, ii. 194-196. 
 Motions, i. 9. 
 Orders, i. 50, 94, 122. 
 Qualifications of Voters, i. 656-664. 
 Reports, i. 861. 
 BROWN, ARTEMAS. 
 Death of Mr. Gourgas, Vol. ii. 740. 
 House of Representatives, ii. 398; iii. 603. 
 Motions, i. 448 ; iii. 27, 80, 515, 603. 
 Rights of the Jury, iii. 471. 
 Withdrawal of a Motion, i. 449. 
 BROWN, HIRAM C. 
 Plurality, Vol. iii. 141. 
 BUCK, ASAHEL. 
 Loan of the State Credit, Vol. ii. 664. 
 Motions, i. 571, 876. 
 Plurality, iii. 536. 
 BUMPUS, CEPHAS C. 
 
 Motions, Vol. i. 202 ; ii. 194. 
 BURLINGAME, ANSON. 
 
 Constitutional Conventions, Vol. iii. 294-297. 
 Death of Mr. Gourgas, ii. 739, 740. 
 House of Representatives, ii. 450. 
 Qualifications of Voters, i. 587-590, 637. 
 Resolutions, ii. 450. 
 Rights of the Jury, iii. 437-441. 
 Business, Order of. Vol. i. 177, 217. 
 Business, Preliminary. Vol. i. 10, 33. 
 BUTLER, BENJAMIN F. 
 Adjournment for two weeks. Vol. i. 41,42. 
 Adjournment, i. 213-216, 297, 558; ii. 219,223; 
 
 iii. 645, 646. 
 
 Amendments and Enrolment, iii. 300, 301-334. 
 Berlin Vacancy, i. 76-79, 82, 84, 87, 94-98, 125, 
 
 183, 184. 
 
 Closing Debate, i. 298, 408 ; ii. 243-245, 793. 
 Corporations, ii. 257, 272. 
 Council and Lieutenant-Governor, i. 482-486, 
 
 514, 521-523, 525 ; ii. 113, 114. 
 Declaration of Rights, iii. 424, 431, 433, 434. 
 Distribution of Books, iii. 436. 
 Encouragement of Literature, iii. 613, 614, 620- 
 
 622, 625, 626. 
 
 Governor, i. 317, 330-332, 337. 
 House of Representatives, ii. 45. 148, 184, 192, 
 
 193, 202-235, 208, 209, 216, 246, 316, 323, 322, 
 
 350, 358, 361, 364-367, 376-379, 382, 383, 427, 
 
 428, 455, 458, 459, 461, 462 ; iii. 590, 591. 
 Imprisonment for Debt, iii. 410, 411, 626. 
 Judiciary, ii. 684, 692, 693, 760, 787-793, 797, 
 
 828, 830, 835 ; iii. 181, 182, 185, 2 >4. 205, 207, 
 
 239, 222, 223, 232, 234, 235, 310, 311, 364, 384, 
 
 385, 634, 636. 
 Justices of the Peace, iii. 340, 341, 363, 366, 388- 
 
 391, 395, 397-399, 402, 403. 
 Limitation of Debate, iii. 1, 265, 266. 
 Lieutenant-Governor, i. 345, 351, 352, 541. 
 Loan of the State Credit, ii. 679, 680, 684. 
 Militia, ii. 22-24, 104, 106-109. 
 
1853.] 
 
 INDEX. 
 
 779 
 
 MEMBERS AND SUBJECTS. 
 
 Mode of Submitting the Amended Constitution 
 to the People, iii. 662, 663, 666, 670, 671, 684, 
 696, 638, 705-707, 716, 717, 721. 
 
 Motions, i. 124, 188, 272, 274, 296, 337, 345, 352, 
 353, 359, 406, 408, 424, 426, 514, 541, 544, 546, 
 953; ii. 192, 193, 243, 266, 267, 272,276, 314, 
 657, 679, 681, 684, 830, 835 ; iii. 1, 40, 86, 265, 
 300, 363, 387, 388, 416, 431, 436, 569, 578, 626, 
 646, 698. 
 
 Oaths and Subscriptions, i. 353-355, 357, 363- 
 367. 
 
 Orders, i. 189, 272, 971 ; iii. 86. 
 
 Pay Roll, iii. 127. 
 
 Pardoning Power, i. 972. 
 
 Plan of Represen ? ation, ii. 267. 
 
 Plurality, i. 274-276, 3 )6, 308, 415, 416-419, 428, 
 429, 432, iii. 87, 107, 138, 55 J, 554, 5-37,558, 
 569, 578. 
 
 Population and Representation, i. 436. 
 
 Preliminary Motions, i. 317. 
 
 Qualifications of Voters, ii. 276. 
 
 Question of Order, iii. 54 ), 5i2, 551-553. 
 
 Quorum of the House, ii. 835, 838, 838. 
 
 Reports from Committees, i. 233-234 ; ii. 278-280. 
 
 Resolutions, iii. 310. 
 
 Rights of the Jury, iii. 457-460. 
 
 Secretary, Treasurer, c., ii. 473-475. 
 
 Sectarian Schools, (see Encouragement of Liter 
 ature.) 
 
 Senate, i. 195, 202. 
 
 CADY, HENRY. 
 
 Berlin Vacancy, Vol. i. 183. 
 
 Encouragement of Literature, iii. 618. 
 
 House of Representatives, ii. 381, 382. 
 
 Judiciary, iii. 386, 387. 
 
 Leave of Absence, iii. 603. 
 
 Motions, i. 551. 
 
 Negligence of Railroad Corporations, iii. 466, 
 467. 
 
 Orders, i. 178. 
 
 Plurality, i. 429, 430. 
 
 Qualifications of Voters, i. 551. 
 
 Sectarian Schools, (see Encouragement of Liter 
 ature.) 
 CARTER, TIMOTHY W. 
 
 Qualifications of Voters, Vol. i. 700. 
 
 Rules and Orders, i. 54. 
 CARRUTHERS, WILLIAM. 
 
 Distribution of Report of Debates, Vol. iii. 724. 
 CASE, ISAAC. 
 
 Motion, Vol. i. 297. 
 
 Census. Vol. i. 144, 271 ; ii. 386-392 ; iii. 699,700. 
 CHANDLER, AMARIAH. 
 
 Declaration of Rtghts, Vol. iii. 416, 417, 421, 422. 
 
 Encouragement of Literature, ii. 545 ; iii. 619, 
 620. 
 
 Justices of the Peace, iii. 369, 370. 
 
 Motions, i. 487. 
 
 Petitions, ii. 569. 
 
 Rights of the Jury, iii. 503, 504. 
 
 Sectarian Schools, (see Eucouragement of Liter 
 ature.) 
 
 CHAPIN, CHESTER W. 
 
 House of Representatives, Vol. ii. 242, 243. 
 
 Motions, ii. 126. 
 
 Plan of Representation, ii. 217. 
 CHAPIN, DANIEL E. 
 
 Declaration of Rights, Vol. iii. 417, 420, 424, 427, 
 428. 
 
 Distribution of Debates, iii. 641. 
 
 Encouragement of Literature, iii. 618, 619. 
 
 Frame of Government, i. 788. 
 
 House of Representatives, iii. 577. 
 
 Motion, iii. 577. 
 
 Sectarian Schools, (see Encouragement of Liter 
 ature.) 
 CHAPIN, HENRY. 
 
 Corporations, Vol. iii. 166, 167, 169. 
 
 Encouragement of Literature, ii. 547. 
 
 Frame of Government, i. 788, 789. 
 
 House of Representatives, ii. 229-231. 
 
 Judiciary, iii. 235, 627, 632. 
 
 Justices of the Peace, i. 491; iii. 370-372, 394, 
 395, 403, 404. 
 
 Mode of Submitting the Amended Constitution 
 to the People, iii. 700. 
 
 Pay Roll, ii. 329. 
 
 Qualifications of Voters, i. 680 ; ii. 498. 
 
 Secretary, Treasurer, &c., i. 713; ii. 469. 
 GUILDS, JOSIAH. 
 
 Qualifications of Voters, Vol. i. 563. 
 CHOATE, RUFUS. 
 
 Berlin Vacancy, Vol. i. 116-121. 
 
 Closing Debate, ii. 35. 
 
 House of Representatives, i. 876-891, 926, 927- 
 
 Judiciary, ii. 799-811. 
 
 Militia, ii. 88-90, 92. 
 
 Mode of Submitting the Amended Constitution 
 to the People, iii. 685-687, 690, 691. 
 
 Pardoning Power, i. 968, 969. 
 CHURCHILL, J. McKEAN. 
 
 Adjournment, Vol. i. 232 ; iii. 569. 
 
 Amendments and Enrolment, iii. 123. 
 
 Council, ii. 113; iii. 267. 
 
 Declaration of Rights, iii. 471. 
 
 Governor, i. 337. 
 
 House of Representatives, ii. 237, 238; iii. 587. 
 
 Justices of the Peace, i. 492 ; iii. 372. 
 
 Militia, ii. 26, 69, 70, 72. 
 
 Motion, i. 53, 359, 796, 809,907; ii. 70,98, 112, 
 433. 
 
 New Towns, iii. 82, 243. 
 
 Orders, i. 94, 144, 188, 234, 486, 487. 
 
 Pardoning Power, i. 97, 976, 977, 979. 
 
 Place of Meeting, i. 22. 
 
 Plurality, i. 245, 410, 411. 422 ; iii. 108, 567. 
 
 Qualifications of Voters, i. 653, 554, 757, 758 ; ii. 
 117, 252. 
 
 Secretary, Treasurer, &c., i. 722, 760. 
 
 Senate, i. 231. 
 Claims against the Commonwealth. Vol. i. 272; iii 
 
 713, 714. 
 C LARKE, ALPHEUS B. 
 
 Motions, Vol. i. 551. 
 
 Qualifications of Voters, i. 568, 572. 
 
780 
 
 INDEX. 
 
 [1853, 
 
 MEMBERS AND SUBJECTS. 
 
 COGGIN, JACOB. 
 
 Encouragement of Literature, Vol. ii. 574, 575. 
 COGSWELL, NATHANIEL. 
 Encouragement of Literature, Vol. ii. 482, 483, 
 
 569, 571 ; iii. 619. 
 Loan of the State Credit, ii. 312. 
 Sectarian Schools, (see Encouragement of Liter 
 ature.) 
 
 COLE, LANSING J. 
 Adjournment, Vol. i. 448, 487, 488. 
 Amendments and Enrolment, ii. 567 ; iii. 299. 
 Corporations, ii. 126, 254, 255, 262, 263. 
 Council and Lieut. Governor, i. 478-482. 
 Judiciary, ii. 830. 
 Lieutenant-Governor, i. 537, 538. 
 Loan of the State Credit, ii. 281-287,291, 299; 
 
 313, 649, 650. 
 Mode of Submitting the Amended Constitution 
 
 to the People, iii. 713. 
 Motions, ii. 313, 830. 
 Orders, i. 122, 178, 234, 445, 448. 
 Petitions, i. 159. 
 Qualifications of Voters, i. 649. 
 Quorum of the House, ii. 838, 839. 
 Resolutions, i. 160, 203 ; ii. 569. 
 Rules and Orders, i. 53. 
 
 Colored Citizens, Protest of. Vol. iii. 647, 724-726. 
 Committees, appointment of. Vol. i. 13, 36, 88, 103, 
 
 123, 217, 234, 464 ; ii. 99 ; iii. 372. 
 Standing, i. 88. 
 time of Meeting, i. 103. 
 Instructions to, i. 177, 731, 758 ; ii. 1, 2. 
 Committee of Conference. Vol. i. 50. 
 Committee, Report of, on Credentials. Vol. i. 34. 
 Report of, on Elections, i. 93, 99, 130, 930, 931. 
 on Rules and Orders, i. 33, 34. 
 on Distribution of Documents, iii. 647,648. 
 on Mode of Procedure, i. 35, 36. 
 on Place of Meeting, i. 67. 
 on Vacancies, i. 104. 
 on Frame of Government, i. 104, 202, 424, 
 
 526, 650, 796 ; ii. 266, 267. 
 on Seating of Members, i. 121. 
 on Senate, i. 122. 
 on Reporting and Printing, i. 141, 142, 
 
 777 ; ii. 332 ; iii. 310, 569. 
 on Governor, i. 159, 819 ; ii. 287. 
 on Lieutenant-Governor, i. 177. 
 on Qualifications of Voters, i. 189, 190, 9G6 ; 
 
 ii. 71, 162, 434, 435, 521, 522. 
 on Oaths and Subscriptions, i. 233, 234 ; ii. 
 
 279, 280. 
 on House of Representatives, i. 273 ; iii. 
 
 125. 
 
 on Order of Business, i. 296. 
 on the Council, i. 338. 
 on Corporations, i. 425. 
 on Judiciary, i. 447 ; iii. 534. 
 on Secretary, Treasurer, &c., i. 489 ; ii. 
 
 248, 547. 
 
 on Pay Roll, i. 493 ; iii. 86, 570, 647. 
 on Preamble and Bill of Rights, ii. 638, 
 639 ; iii. 99. 
 
 on Militia, i. 842, 987 ; ii. 52, 71. 
 
 on Loan of the State Credit, i. 861. 
 
 on Encouragement of Literature, ii. 121, 
 
 383, 384, 433, 434. 
 on Leave of Absence, i. 407, 612, 629 ; ii. 
 
 162, 482 ; iii. 289, 337, 363. 
 on University at Cambridge, ii. 570, 603, 
 
 724, 726. 
 
 on Plurality, i. 159 ; ii. 278, 279. 
 on Amendments and Enrolments, ii. 280, 
 
 281. 
 
 on Banking, ii. 481 ; iii. 99, 100. 
 on Railroad Accidents, iii. 86. 
 on Final Adjournment, iii. 100. 
 on Justices of the Peace, iii. 383, 384. 
 on Constitutional Conventions, iii. 404. 
 on Preservation of the Records, iii. 629. 
 on Revision of Amendments, iii. 643, 645. 
 Communication from Benjamin Stevens. Vol. L 
 
 13, 67. 
 
 Henry Wilson, i. 13. 
 President Boston Athenaeum, i. 33. 
 Rev. Warren Burton, i. 33. 
 James T. Robinson, i. 50. 
 Speaker House of Representatives, i. 87. 
 Secretary of Commonwealth, i. 272, 340, 629; 
 
 ii. 482. 
 
 Selectmen of Berlin, i. 340. 
 Samuel A. Eliot, i. 217. 
 President Fitchburg Railroad Company, ii. 
 
 744. 
 
 Superintendent Merchants Exchange, i. 50. 
 Comptroller. Vol. i. 94. 
 Constitution, Amended, Distribution of. Vol. iii. 
 
 630, 637-641. 
 Form of, iii. 648-721. 
 Mode of Submitting to the People, iii. 312, 
 
 570-577, 580-613, 648, 650-714, 716. 
 Amendments of, i. 122; iii. 118-125, 489-496, 
 
 517-534. 
 Constitutions of the several States. Vol. i. 50, 87 ; 
 
 iii. 426. 
 
 Conventions, Constitutional. Vol. i. 94; ii. 562- 
 568 ; iii. 290-310, 312-318, 341-351, 489-496, 517, 
 534, 701-709. 
 
 Council. Vol. i. 189, 338, 339, 436-445, 449-486, 
 494, 514, 526-535, 543 ; ii. 33 ; iii. 267-274, 682, 
 683. 
 Corporations. Vol. i. 144, 217, 271, 425 ; ii. 122-126, 
 
 253-266, 269-272, 287 ; iii. 50-75, 166-179, 714. 
 COOLEDGE, HENRY F. 
 
 Secretary Treasurer, &c., Vol. i. 767, 768. 
 CRANE, GEORGE B. 
 
 Motion, Vol. i. 751. 
 
 Credentials. Vol. i. 7, 13, 34, 178, 288, 234 ; iii. 125. 
 CRESSY, OLIVER S. 
 Motions, Vol. ii. 735, 736 ; iii. 49, 99. 
 Oaths and Subscriptions, ii. 488, 489. 
 Resolution, i. 273. 
 CROSBY, LEANDER. 
 
 New Towns, Vol. iii. 242. 
 CROSS, JOSEPH W. 
 Death of Mr. Gourgas, Vol. ii. 741, 742. 
 
1853.] 
 
 INDEX. 
 
 781 
 
 MEMBERS AND SUBJECTS. 
 
 CROWELL, SETH. 
 
 Leave of Absence, Vol. iii. 570. 
 
 Motions, i. 272 ; ii. 243. 
 
 Plurality, i. 422. 
 CROWNINSHIELD, FRANCIS B. 
 
 Berlin Vacancy, Vol. i. 45-49, 87- 
 
 Constitutional Conventions, iii. 345,346, 348,851. 
 
 Encouragement of Literature, iii. 623. 
 
 House of Representatives, ii. 398-411, 455. 
 
 Judiciary, iii. 231, 28. 
 
 Loan of the State Credit, iii. 25. 
 
 Motions, ii. 521 ; iii. 25, 284. 
 
 Oaths and Subscriptions, i. 356-358. 
 
 Pardoning Power, i. 981-984. 
 
 Plurality, i. 307, 420, 421, 424; iii, 284. 
 
 Qualifications of Voters, i. 758. 
 
 Rules and Orders, i. 55, 56. 
 
 Sectarian Schools, (see Encouragement of Liter 
 ature.) 
 CUMMINGS, JOSEPH. 
 
 Qualifications of Voters, Vol. i. 609. 
 
 Leave of Absence, iii. 289. 
 CUSHMAN, HENRY W. 
 
 Closing of Debate, Vol. i. 488. 
 
 Compensation to the Officers of the Convention, 
 ii. 248. 
 
 Justices of the Peace, i. 493 ; iii. 196, 338-340. 
 
 Lieutenant-Governor, i. 177, 488, 514, 515, 517, 
 518, 535, 537, 540 ; iii. 166. 
 
 Limiting Debate, iii. 1, 2. 
 
 Loan of the State Credit, ii. 664. 
 
 Motions, i. 449, 651, 899 ; ii. 221, 2-33, 664 ; iii. 166, 
 267, 290, 721. 
 
 Orders.i. 7, 12, 93, 159, 216, 493; ii. 248, 793; 
 iii. 312. 
 
 Pay Roll, iii. 721. 
 
 Reports, i. 23, 177. 
 
 Resolutions, iii, 196. 
 CUSHMAN, THOMAS. 
 
 Leave of Absence, Vol. i. 612. 
 
 Secretary, Treasurer, &c., ii. 533, 534. 
 
 DANA, RICHARD H., JR. 
 Berlin Vacancy, Vol. i. 185. 
 Constitutional Conventions, iii. 494, 518. 
 Council, i. 525-427. 
 Declaration of Rights, iii. 376, 378-381, 418, 419, 
 
 424, 433, 434, 451-454, 468-470, 475-478, 480, 481. 
 Declination, iii. 318. 
 House of Representatives, i. 941-949; ii. 134, 
 
 136, 185, 450, 452-454. 
 
 Habeas Corpus, (See Declaration of Rights). 
 Judiciary, ii. 701-703, 756-770, 788 ; iii. 180-184, 
 
 187, 190, 192, 207, 208, 219, 225, 228, 234, 235, 
 
 626, 627, 629-632. 
 
 Loan of the State Credit, ii. 674-677. 
 Militia, ii. 27, 98-102. 
 Mode of Submitting the Amended Constitution 
 
 to the People, iii. 662, 665, 667, 673, 674, 682, 
 
 687-689, 691, 692, 709, 714, 715, 717. 
 Motions, i. 383, 819 ; ii. 98, 329, 481, 701 ; iii. 515, 
 
 626, 630, 709. 
 Oaths and Subscriptions, i. 356. 
 
 Orders, i. 272, 359. 
 
 Pay Roll, ii. 326, 327. 
 
 Plurality, i. 385-393 ; iii, 143-145, 275-277, 278, 
 283, 284, 555. 
 
 Qualifications of Voters, i. 682, 684-688 ; ii. 511- 
 517. 
 
 Question of Order, iii. 551. 
 
 Resolutions, i. 708. 
 
 Rights of the Jury, iii. 451, 454, 455, 507, 509. 
 
 Secretary, Treasurer, &c., i. 705, 708-711, 719, 
 
 875 ; ii. 468-471, 481, 534, 539, 540. 
 DAVIS, CHARLES G. 
 
 Appointment of Members of the Legislature to 
 Office, Vol. iii. 635. 
 
 Closing of Debate, i. 298. 
 
 Governor, i. 323-325, 332 ; ii. 386. 
 
 House of Representatives, ii. 247, 367, 368, 392- 
 395, 397, 420, 464, 630, 631 ; iii. 587-589, 603. 
 
 Imprisonment for Debt, iii. 487-489. 
 
 Judiciary, iii. 231. 
 
 Justices of the Peace, iii. 367, 368. 
 
 Loan of the State Credit, ii. 308. 
 
 Motions, i. 627, 705 ; ii. 384, 386 ; iii. 484. 
 
 Negligence of Railroad Corporations, iii. 467, 468. 
 
 Orders, i. 103. 
 
 Order of Business, iii, 642. 
 
 Plurality, i. 245, 306 ; iii. 93, 94, 155, 536, 563 569. 
 
 Qualifications of Voters, i. 626, 683, 684. 
 
 Question of Order, iii. 542, 543, 552. 
 
 Secretary, Treasurer, &c., i. 705. 
 DAVIS, EBENEZER. 
 
 Orders, Vol. i. 339, 340. 
 DAVIS, ISAAC. 
 
 Corporations, Vol. ii. 266, 270-272. 
 
 Declaration of Rights, iii. 483. 
 
 Governor, i. 316-319, 339 ; ii. 386. 
 
 Habeas Corpus, (see Declaration of Rights.) 
 
 House of Representatives, iii. 609. 
 
 Judiciary, ii. 691 ; iii. 631. 
 
 Mode of Submitting the Amended Constitution 
 to the People, iii. 682. 
 
 Motions, i. 316, 994 ; ii. 256, 386, 482 ; iii. 337, 570. 
 
 Orders, i. 160. 
 
 Pardoning Power, i. 974, 975. 
 
 Plurality, i. 293, 294, 377. 
 
 Qualifications of Voters, i. 671, 672. 
 
 Reports from Committees, i. 9, 159, 819 ; ii. 287. 
 
 Secretary, Treasurer, &c., i. 723, 724. 
 DAVIS, ROBERT T. 
 
 Governor, Vol. i. 324. 
 
 House of Representatives, iii. 577. 
 
 Militia, ii. 3, 4. 
 
 Place of Meeting, i. 27. 
 
 Protest of Colored Citizens, iii. 726. 
 DAWES, HENRY L. 
 
 Amendments and Enrolment, Vol. iii. 315-317 
 
 House of Representatives, ii. 38-52, 619. 
 
 Judiciary, iii. 385, 386. 
 
 Justices of the Peace, iii. 368, 370, 395-397. 
 
 Loan of the State Credit, ii. 650-654, 655, 665. 
 
 Plurality, i. 422. 
 
 Qualifications of Voters, i. 621-624. 
 
 Secretary, Treasurer, &c., i. 906. 
 
782 
 
 INDEX. 
 
 [1853. 
 
 MEMBERS AND SUBJECTS. 
 
 DAY, OILMAN. 
 
 Motions, Vol. iii. 244, 515. 
 
 Rights of the Jury, iii. 515. 
 Debates, Report? of. Vol. i. 12, 141-143, 160, 162, 
 
 177; ii. 322; iii. 310, 569, 629, 638-641. 
 Debate, Closing of. Vol. i. 298, 488, 508, 612, 651 ; 
 
 ii. 657 ; iii. 100, 101, 520, 603. 
 Debate, Limitation of. (See " Speeches, Limitation 
 
 of.") 
 DEMING, ELIJAH S. 
 
 Presented Credentials, Vol. i. 188. 
 DEJNTON, AUGUSTUS. 
 
 Amendments and Enrolment, Vol. iii, 346-348, 
 351. 
 
 Corporations, iii. 72, 73. 
 
 Judiciary, iii. 237. 
 
 Mode of Submitting the Amended Constitution 
 to the People, iii. 684. 
 
 Motions, i. 759 ; iii. 72, 351. 
 
 Petitions, ii. 70. 
 
 Plurality, iii. 108, 280. 
 
 Qualifications of Voters, ii. 755. 
 
 Secretary, Treasurer, &c., i. 728, 729, 763, 765, 
 766. 
 
 Time of Meeting, ii. 33. 
 DEWITT, ALEXANDER. 
 
 Motions, Vol. i. 531. 
 
 Banking, iii. 358. 
 
 Corporations, iii. 50, 73. 
 Documents, Distribution of. Vol. i. 44 ; iii. 637, 
 
 641,647, 648,722-724. 
 DUNCAN, SAMUEL. 
 
 Assorting and Counting Votes, Vol. i. 544. 
 
 Justices of the Peace, iii. 391, 392. 
 
 Loan of the State Credit., ii. 298-300. 
 
 Motions, i. 114, 122; ii. 120, 217; iii. 166,318, 
 358. 
 
 Qualifications of Voters, ii. 121. 490-493, 494, 504, 
 512,513,519. 
 
 Resolutions, i. 544 ; iii. S18. 
 
 Time of Meeting, i. 733, 734. 
 
 Uniformity of Receiving Votes at Elections, iii. 
 
 387, 388. 
 DUNHAM, BRADISH. 
 
 Petitions, Vol. ii. 744. 
 DURGIN, JOHN M. 
 
 Amendments and Enrolment, Vol. i. 67. 
 
 Berlin Vacancy, i. 74, 09. 
 
 Council and Lieutenant-Governor, i. 462-464. 
 
 Death of Mr. Gourgas, ii. 741. 
 
 Frame of Government, i. 962. 
 
 Governor, i. 317. 
 
 House of Representatives, ii. 52-58 ; iii. 580, 587. 
 
 Lieutenant-Gorernor, i. 543. 
 
 Loan of the State Credit, ii. 647-649. 
 
 Motions, i. 406, 486, 551 ; ii. 52. 
 
 Orders, i. 204. 
 
 Plurality, i. 255-257; iii. 131-134. 
 
 Qualifications of Voters, ii. 273. 
 EAMES, PHILIP. 
 
 Adjournment, Vol. ii.220. 
 
 Appendix to Report of Debates, iii. 265. 
 
 Final Adjournment, iii. 727. 
 
 Frame of Government, i. 781, 782. 
 
 Governor,!. 317. 
 
 House of Representatives, ii. 231, 232, 363, 364 
 
 iii. 474. 
 
 Instructing Committees, ii, 1, 2. 
 Lieutenant-Governor, i. 347. 
 Loan of the State Credit, ii. 523. 
 Motions, i, 541, 543 ; ii. 332, 523, 657 ; iii. 474, 496. 
 Mode of Submitting the Amended Constitution 
 
 to the People, iii. 703, 704. 
 Orders, ii. 1, 2. 
 Petitions, ii. 247, 657. 
 Qualifications of Voters, i. 563, 564. 
 Secretary, Treasurer, &c., i. 907. 
 Time of Meeting, ii. 33. 
 EARLE, JOHN M. 
 
 Adjournment, Vol. i. 50; ii. 221 ; iii. 100. 
 Appendix to Report of Debates, iiL 219. 
 Banking, iii. 356. 
 Census, ii. 386, 387, 389-391. 
 Corporations, ii. 125, 126. 
 Credentials, i. 87. 
 Distribution of Books, iii. 436. 
 
 of Report of Debates, iii. 639, 640, 648, 722- 
 
 724. 
 
 Encouragement of Literature, ii. 522. 
 Frame of Government, i. 955, 956. 
 Governor, i. 341 ; ii. 59, 386. 
 House of Representatives, ii. 44, 196-198, 202, 
 
 207, 456, 612, 632 ; iii. 473, 612, 613. 
 Judiciary, ii. 688, 691-693, 696 ; iii. 181, 208, 209, 
 
 224. 
 
 Justices of the Peace, iii. 390. 
 Lieutenant-Governor, i. 539-542. 
 Limiting of Debate, iii. 2, 267. 
 Loan of the State Credit, iii. 24. 
 Militia, i. 992-994. 
 Mode of Submitting the Amended Constitution 
 
 to the People, iii. 669, 670, 716, 717, 
 Motions, i. 33, 50, 234, 271, 344, 383, 508, 541, 
 
 543, 544, 590, 614, 986 ; ii. 194, 221, 386, 392, 
 
 683 ; iii. 337, 363, 388, 465, 612, 639. 
 New Towns, iii. 81-85. 
 
 Oaths and Subscriptions, ii. 485-488, 552, 556. 
 Orders, i. 12, 14, 92, 93 ; ii. 143; iii. 639. 
 Pardoning Power, i.980, 981. 
 Petitioning the Legislature, i. 545, 546. 
 Place of Meeting, i. 51, 52, 65. 
 Plan of Representation, i. 590, 591 ; ii. 193. 
 Plurality, iii. 555, 556. 
 Population and Representation, i. 446. 
 Printing, i. 233. 
 Qualifications of Voters, i. 560. 
 Question of Order, iii. 552. 
 Resolutions, i. 93, 271. 
 Rules and Orders, i. 54, 55. 
 Secretary, Treasurer, &c., ii. 534-536. 
 Senate, i. 192, 193, 198, 199, 213, 225, 226-228. 
 EASTON, JAMES, 2o. 
 
 Leave of Absence, Vol. iii. t 603. 
 EDWARDS, ELISHA. 
 Council, Vol. iii. 274. 
 House of Representatives, ii. 160. 
 
1853.] 
 
 INDEX. 
 
 783 
 
 MEMBERS AXD SUBJECTS. 
 
 Motions, i. 509, 627. 
 Oaths and Subscriptions, ii. 556. 
 Orders, i. 122. 
 Pay Roll, iii. 127. 
 Place of Meeting, i. 36, 37. 
 Plurality, iii. 94, 95. 
 
 Qualifications of Voters, i. 552, 648, 691, 
 ELIOT, SAMUEL A. 
 
 Letter of Resignation, Vol. i. 217. 
 Election of President, Vol. i. 9. 
 of First Secretary, i. 9. 
 of Second Secretary, i. 10. 
 of Chaplain, i. 23. 
 of Messenger, i. 33, 44, 53, 66. 
 of President pro tern., iii. 219. 
 of State Officers, i. 489. 
 Elections, General, Vol. i. 114, 178. 202, 344, 383, 
 
 544, 651 ; iii. 694, 697, 700. 
 Voting in, iii. 694. 
 ELY, JOSEPH M. 
 Judiciary, Vol. iii. 238. 
 
 Motions, ii. 838, 840 ; iii. 247, 266, 284, 388, 569. 
 .New Towns, iii. 247. 
 Plurality, iii. 284. 
 Qualifications of Voters, i. 743. 
 Question of Order, iii. 552. 
 Quorum of the House, ii. 838. 
 Uniformity of Receiving Votes, iii. 388. 
 EUSTIS, WILLIAM T. 
 
 Leave of Absence, Vol. i. 509. 
 Explanations, Personal. Vol. ii. 832, 834. 
 
 FARWELL, A. G, 
 
 Loan of the State Credit, Vol. ii. 122. 
 FAY, SULLIVAN. 
 
 On Leave of Absence, Vol. iii. 603. 
 
 Motions, ii. 332 ; iii. 289, 603. 
 
 Reports from Committees, i. 407, 612,629; iii. 
 
 289, 337, 363, 603. 
 FOSTER, AARON. 
 
 Closing Debate, Vol. i. 613. 
 
 Frame of Government, i. 800, 955. 
 
 House of Representatives, ii. 163-165, 200, 411- 
 413. 
 
 Loan of State Credit, ii. 293, 294. 
 
 Militia, ii. 68. 
 
 Motion, ii. 161. 
 
 Orders, i. 203. 
 
 Plurality, iii. 98. 
 
 Qualifications of Voters, i. 741-743, 746. 
 FOWLER, SAMUEL P. 
 
 Motions, Vol. i. 449. 
 FREEMAN, JAMES M. 
 
 House of Representatives, Vol. ii. 191, 192. 
 
 Justices of the Peace, iii. 404. 
 
 Motions, i. 612, 759 ; iii. 24. 
 
 Rights of the Jury, iii. 465. 
 
 Secretary, Treasurer, &c., i. 759. 
 FRENCH, CHARLES A. 
 
 Plurality, Vol. i. 244, 245. 
 FRENCH, RODNEY. 
 
 Amendments and Enrolment, Vol. iii. 314, 315. 
 
 Constitutional Conventions, iii. 534. 
 
 Declaration of Rights, iii. 422, 480-482. 
 
 Habeas Corpus, (see Declaration of Rights.) 
 
 House of Representatives, ii. 356, 360, 369, 381 ; 
 iii. 609, 610. 
 
 Imprisonment for Debt, iii. 407. 
 
 Judiciary, ii. 785-787, 834, 835 ; iii. 193-196, 198, 
 199. 
 
 Motions, i. 177, 202, 424, 612 ; ii. 381, 834 ; iii. 
 49, 264, 471, 534, 545. 
 
 Oaths and Subscriptions, i. 370, 371. 
 
 Petitions, i. 113, 114, 159, 160. 
 
 Plurality, i. 430. 
 
 Qualifications of Voters, i. 614-617, 628, 641. 
 
 University at Cambridge, iii. 47. 
 FRENCH, SAMUEL. 
 
 Adjournment, Vol. ii. 220. 
 
 Banking, iii. 329, 330. 
 
 Corporations, ii. 125, 254 ; iii. 72, 73, 173, 174. 
 
 Council, iii. 271. 
 
 Frame of Government, i. 786, 787. 
 
 House of Representatives, i. 904, 905 ; ii. 320, 
 611. 
 
 Judiciary, ii. 685, 686, 712, 774, 775. 
 
 Loan of State Credit, ii. 293. 
 
 Orders, i. 340. 
 
 Place of Meeting, i. 70. 
 
 Plurality, i. 419 ; iii. 115, 152, 165. 
 
 Qualifications of Voters, i. 563, 602, 603 ; ii. 119. 
 
 Secretary, Treasurer, &c., i. 721, 777, 778. 
 FROTHINGHAM, RICHARD, JR. 
 
 Adjournment, Vol. i. 215. 
 
 Banking, iii. 318-326, 336, 356-359. 
 
 Berlin Vacancy, i. 91, 98. 
 
 Boston Vacancies, i. 188. 
 
 Choice of Messenger, i. 44. 
 
 Corporations, ii. 255, 256 ; iii. 55-57, 58, 72. 
 
 Council and Lieutenant-Governor, i. 471, 472. 
 
 Encouragement of Literature, ii. 544 ; iii. 618. 
 
 Explanation, iii. 240. 
 
 Frame of Government, i. 802-804, 808. 
 
 House of Representatives, ii. 208, 213, 214. 
 
 Judiciary, ii. 688 ; iii. 210, 212. 
 
 Justices of the Peace, iii. 370. 
 
 Lieutenant-Governor, i. 347, 348, 351. 
 
 Militia, ii. 24, 27, 28. 
 
 Mode of Submitting the Amended Constitution 
 to the People, iii. 715. 
 
 Motion*, i. 143, 160, 339 ; iii. 212, 239, 715. 
 
 New Towns, iii. 78-80, 84. 
 
 Oaths and Subscriptions, ii. 486. 
 
 Orders, i. 144, 160. 
 
 Petitions, i. 758. 
 
 Plurality, i. 423, 430 ; iii. 95, 164, 165. 
 
 Qualifications of Voters, i. 605-608, 624. 
 
 Reporting and Printing, i. 160, 161. 
 
 Reports from Committees, ii. 481, 482 ; iii. 99, 100. 
 
 Sectarian Schools, (see Encouragement of Liter 
 ature). 
 
 GARDNER, HENRY J. 
 Adjournment, Vol. iii. 520. 
 House of Representatives, ii. 241, 242 ; iii. 591, 
 592, 613. 
 
784 
 
 INDEX. 
 
 [1853. 
 
 MEMBERS AND SUBJECTS. 
 
 Judiciary, iii. 211, 212. 
 
 Mode of Submitting the Amended Constitution 
 
 to the People, iii. 673, 679. 
 Motions, iii. 80, 494. 
 New Towns, iii. 80. 
 Plurality, iii. 647, 555, 556, 559, 560. 
 Question of Order, iii. 553. 
 University at Cambridge, iii. 76. 
 GARDNER, JOHNSON. 
 Adjournment, Vol. i. 40, 41. 
 Amendments, i. 43. 
 
 Council and Lieutenant-Goyernor, i. 474, 475. 
 Berlin Vacancy, i. 73, 74. 
 Declaration of Rights, iii. 376, 377, 425. 
 Frame of Government, i. 962, 963. 
 House of Representatives, ii. 231, 202, 238-240, 
 
 369, 370, 397 ; iii. 598. 
 Judiciary, ii. 696, 697. 
 Militia, ii. 103. 
 Mode of Submitting the Amended Constitution 
 
 to the People, iii. 667, 679. 
 Motions, i. 39, 423 ; ii. 656 ; iii. 463. 
 New Towns, iii. 78. 
 Orders, i. 144. 
 
 Petitioning the Legislature, i. 514, 545. 
 Plan of Representation, ii. 143, 144, 238, 239. 
 Place of Meeting, i. 14, 39, 72. 
 Plurality, iii. 108, 153, 154. 
 Rights of the Jury, iii. 463. 
 Senate, i. 195. 
 General Court. Vol. i. 122, 160, 178, 950-966; 
 
 iii. 659-667. 
 GILBERT, WASHINGTON. 
 
 Orders, Vol. i. 203. 
 GILES, JOEL. 
 Amendments and Enrolment, Vol. ii. 722-724 ; iii. 
 
 122, 123. 
 
 Constitutional Conventions, iii. 524, 527. 
 Council, i. 5 )7, 508, 509-513. 
 House of Representatives, ii. 356-360. 
 Judiciary, iii. 199-202. 
 Loan of the State Credit, ii. 679-681, 683 ; iii. 21- 
 
 24. 
 
 Motions, ii. 683. 
 Senate, i. 197, 198. 
 
 University at Cambridge, iii. 48, 49, 77. 
 GOOCH, DANIEL W. 
 Assignment of Seats, Vol. i. 133. 
 Governor, i. 336. 
 Judiciary, iii. 235. 
 Justices of the Peace, iii. 401, 402. 
 Motions, iii. 402. 
 
 Oaths and Subscriptions, i. 371 ; ii. 552, 553, 555. 
 Plurality, iii. 105-107, 279, 280. 
 GOURGAS, FRANCIS R. 
 Berlin Vacancy, Vol. i. 177. 
 Council and Lieutenant- Governor, i. 445, 449, 
 
 456-459. 
 
 Credentials of the Delegate for Berlin, i. 340. 
 Motions, i. 10, 50, 53, 142, 190, 445. 
 Oaths of Office to the Secretaries of the Coven- 
 
 tion, i. 50. 
 Orders, i. 13, 94, 177. 
 
 Preservation of Records, i. 13. 
 
 Reporting and Printing, i. 141, 142, 161, 162, 177. 
 
 Reports from Committees, i. 141, 142, 177, 777. 
 
 Senate, i. 218, 219. 
 Governor! Vol. i. 122, 159, 316, 318-337, 341-344, 
 
 383,487, 986 ; ii. 59, 386 ; iii. 679-682. 
 Gourgas, Francis R., Death of. Vol. ii. 738-744. 
 Government, Frame of. Vol. i. .04, 144, 160, 178, 
 190, 203, 271, 344, 508, 650, 780-796, 798-809, 
 966 ; ii. 384, 385 ; iii. 659. 
 Government, Seat of. Vol. i. 425, 544. 
 GRAY, JOHN C. 
 
 Adjournment, Vol. i. 272, 297, 558. 
 
 Berlin Vacancy, i. 184. 
 
 Census, ii. 391. 
 
 Closing Debate, i. 298, 299, 407, 408. 
 
 Corporations, iii. 62, 63, 170-173. 
 
 Declaration of Rights, iii. 435, 436. 
 
 Frame of Government, i. 798-800. 
 
 House of Representatives, i. 870-875; ii. 184, 
 185-190, 198. 
 
 Judiciary, ii. 684, 687, 688 ; iii. 182, 216-219, 225. 
 
 Lieutenant-Governor, i. 352, 539, 540, 542. 
 
 Loan of the State Credit, ii. 677-679, 683; iii. 25. 
 
 Mode of Submitting the Amended Constitution 
 to the People, iii. 674, 675. 
 
 Orders, i. 144, 436. 
 
 Place of Meeting, i. 29, 30, 68. 
 
 Plurality, i. 2-52-255, 295, 296, 299-302, 306, 410, 
 420 ; iii. 108, 166, 536. 
 
 Population and Representation, i. 436, 446, 447. 
 
 Question of Order, iii. 538, 539, 547. 
 
 Rights of the Jury, iii. 461-463. 
 
 Rules and Orders, i. 54, 56, 57, 59, 60. 
 
 Secretary, Treasurer, &c., i. 729, 765, 766, 769, 770. 
 GREENE, WILLIAM B. 
 
 Berlin Vacancy, Vol. i. 128-130, 170. 
 
 Motions, i. 216" ; ii. 217, 792 ; iii. 262. 
 
 Pay Roll, iii. 722. 
 
 Petitions, i. 216, 359, 493, 612, 796, 842 ; ii. 99, 
 287. 
 
 Qualifications of Voters, ii. 726-732, 754, 755. 
 
 Resolutions, i. 123. 
 
 Senate, i. 200, 201. 
 
 Woman s Rights, (see Qualifications of Voters.) 
 GREENLEAF, SIMON. 
 
 Judiciary, Vol. ii. 779-785. 
 
 Rights of the Jury, iii. 497. 
 GRISWOLD, WHITING. 
 
 Adjournment, Vol. i. 216, 487 ; ii. 462, 463 ; iii. 
 520. 
 
 Amendments and Enrolment, iii. 267, 289, 290. 
 
 Appendix to the Report of Debates, iii. 265. 
 
 Banking, iii. 356. 
 
 Census, ii. 387. 
 
 Closing Debate, ii. 793 ; iii. 360, 521. 
 
 Constitutional Conventions, iii. 317, 404, 493. 
 
 Council, iii. 268, 274. 
 
 Contested Seat of Delegate for Walpole, i. 103. 
 
 Elections, i. 103. 
 
 Frame of Government, i. 963, 964. 
 
 House of Representatives, i. 810-835, 838, 851, 
 855 ; ii. 179, 206, 207, 209, 210, 214, 216, 217, 
 
1853.] 
 
 INDEX. 
 
 785 
 
 MEMBERS AND SUBJECTS. 
 
 335,370-372, 333, 419 ; 446, 453-455, 616,617; 
 
 iii. 607, 608. 
 
 Imprisonment for Debt, iii. 485. 
 Judiciary, ii. 777, 793. 
 
 Justices of the Peace, iii. 337, 3G3, 366, 372. 
 Leave of Absence, iii. 603. 
 Loan of the State Credit, ii. 667 ; iii. 3-7. 
 Motions, i. 233, 273, 693, 731, 930 ; iiL 274, 312, 
 
 318, 337, 272, 523, 612, 647. 
 Orders, i. 708. 
 
 Place of Meeting, i. 20, 21, 52. 
 Plurality, i. 256-271, 304, 305 ; iii. 103, 
 Population and Representation, i. 445, 446, 
 Qualifications of Voters, i. 690. 
 Quorum of the House, ii. 835, 836, 
 Question ef Order, iii. 551. 
 
 Reports from Committees, i. 8-10, 273 ; iii. 125. 
 Time of Meeting, i. 733, 
 
 Habeas Corpus. Vol. iii. 372, 437-484, 713. 
 HALE, ARTEMAS. 
 
 Amendments and Enrolment, Vol. i. 414 ; ii, 714, 
 
 715, 721 ; iii. 118, 119, 290, 297, 299, 330. 
 Appointment of Members of the Legislature to 
 
 Office, iii. 635. 
 Betlin Vacancy, i. 91. 
 Census, ii. 391. 
 Closing Debate, i. 613; ii. 34. 
 Corporations, iii. 62. 
 Distribution of Amended Constitution, iii. 637, 
 
 638. 
 
 House of Representatives, ii. 381. 
 Imprisonment for Debt, iii. 409. 
 Judiciary, iii. 636, 637. 
 Mode of Submitting the Amended Constitution 
 
 to the People, iii. 667. 
 Motions, L 12, 216, 272, 734, 891 ; ii. 381, 391, 724 ; 
 
 iii. 99. 
 
 Plurality, i. 422 ; iii. 554, 555, 559. 
 Question of Order, iii. 543, 550. 
 Secretary, Treasurer, c., i. 708. 
 HALE, NATHAN. 
 
 Closing Debate, Vol. ii. 436, 437. 
 
 Declination, i. 190. 
 
 House of Representatives, i. 835-842; ii. 466, 
 
 637-639, 632, 633. 
 Mode of Submitting the Amended Constitution 
 
 to the People, iii. 667, 683. 
 Motions, i. 232; ii. 466. 
 Plurality, i. 218, 232, 276, 277. 
 Reporting and Printing, i. 142, 143. 
 Resolutions, i. 218. 
 HALL, CHARLES B. 
 Banking, Vol. iii. 351-354, 356-359. 
 Council and Lieutenant-Governor, i. 474. 
 Declination, i. 780. 
 Justices of the Peace, i. 490. 
 Loan of the State Credit, ii. 313. 
 Motions, i. 53, 250, 334, 538 ; ii. 248, 251, 313, 314. 
 Orders, i. 11, 94. 
 Plurality, i. 251, 252, 286, 423. 
 Reports from Committees, i. 33 ; ii. 247, 248, 547. 
 Rules and Orders, i. 34, 54, 56, 59. 
 
 53 3 
 
 HALLETT, B, F. 
 Adjournment, Vol. i. 214, 232, 297. 
 Amendments and Enrolment, ii. 717-721, 724 ; 
 
 iii. 118, 119-122, 289,290-294, 298, 299, 307-309, 
 
 310, 314 P 317, 318, 341, 342, 344. 
 Berlin Vacancy, i. 46, 47, 131-141, 157, 165-169, 
 
 170, 174. 
 
 Closing Debate, ii. 436. 
 Council, i. 338, 339, 494-507, 531, 532, 534 ; iii. 
 
 274, 318, 351. 
 Coun-cil and Lieutenant-Governor, i. 436-445, 458, 
 
 486. 
 Consti-tutional Conventions, iii. 404, 493, 528, 
 
 529, 533. 
 
 Corporations, iii. 50-54, 58, 177. 
 Declination, i. 50. 
 Declaration of Rights, iii. 375-378, 380-382, 383, 
 
 422-431, 433, 435, 468-470, 474, 475, 477-479, 
 
 483. 
 
 Distribution of the Report of Debates, iii. 724. 
 Encouragement of Literature, iii. 615, G16, 626. 
 Final Adjournment, iii. 727, 728. 
 Frame of Government, i. 783, 789, 790, 953, 954. 
 Governor, i. 331-334, 336 ; ii. 59, 63. 
 Habeas Corpus, (see Declaration of Rights.) 
 House of Representatives, i. 907-928, 933-936 ; 
 
 ii. 325, 424-427, 436-442, 591, 592, 611-618 ; iii. 
 
 594-596. 
 
 Imprisonment for Debt, iii. 411,412, 484, 48o. 
 Judiciary, ii. 703, 775, 776, 827, 828; iii. 188-193, 
 
 232, 234, 628. 
 Justices of the Peace, iii. 340-342, 381, 363, 367, 
 
 371, 398, 339, 402. 
 Lieutenant-Governor, i. 349, 350. 
 Loan of the State Credit, ii. 669-673, 677. 
 Militia, i. 993 ; ii. 20-22, 32, 92-96. 
 Motions, i. 14, 43, 436, 486 ; iii. 118, 265, 274, 318, 
 
 540, 626, 714, 721. 
 Mode of Procedure, i. 11. 
 Mode of Submitting the Amended Constitution 
 
 to the People, iii. 658, 683, 684, 687, 692, 693, 
 
 695-697, 7U, 716, 721. 
 Negligence of Railroad Corporations, iii. 86, 465, 
 
 466. 
 
 New Towns, iii. 82, 83, 241-243, 245-247. 
 Oaths and Subscriptions, i. 356-358, 360-364,367, 
 
 368 ; ii. 553, 555. 
 Orders, i. 12, 33. 
 Pardoning Power, i. 977. 
 Pay Roll, ii. 329, 330. 
 Place of Meeting, i. 16-20, 24, 32, 43. 
 Plurality, i. 290-293, 336, 421 ; iii. 96-98, 166. 
 Protest of Colored Citizens, iii. 724-726. 
 Qualifications of Voters, i. 564-588, 600, 609-612, 
 
 644, 645, 648, 688-690 ; ii. 515, 521. 
 Question of Order, iii. 540, 541. 
 Quorum of the House, ii. 835-839. 
 Reporting and Printing, i. 11. 
 Reports from Committees, i. 338, 339; iii. 86, 99, 
 
 434. 
 
 Resolutions, i. 435 ; ii. 683. 
 Rights of the Jury, iii. 447-453, 456, 504, 509, 512. 
 Senate, i. 219-223. 
 
786 
 
 INDEX. 
 
 [1853. 
 
 MEMBERS AND SUBJECTS. 
 
 Secretary, , Treasurer, &c., i. 715-718, 728, 729, 
 
 772-774. 
 
 Sectarian Schools, (see Encouragement of Liter 
 ature). 
 
 University at Cambridge, iii. 253, 254. 
 HAPGOOD, LYMAN W. 
 
 Leave of Absence, Vol. iii. 603. 
 HARMON, PHINEAS. 
 Orders, Vol. i. 160, 558. 
 HASKELL, GEORGE. 
 House of Representatives, Vol. ii. 342-351 ; iii. 
 
 630, 601. 
 
 Qualifications of Voters, ii. 273, 276, 277. 
 HATHAWAY, ELNATHAN P. 
 Amendments and Enrolment, Vol. iii, 348-350. 
 Berlin Vacancy, i. 46, 47, 81, 82. 
 Closing Debate, i. 613. 
 Council, i. 535. 
 Governor, i. 319-321. 
 House of Representatives, ii. 216, 360, 362-364, 
 
 376-378, 462-464 ; iii. 595, 601-603. 
 Judiciary, ii. 694, 695. 
 Justices of the Peace, i. 492, 493 ; iii. 338-340, 
 
 398, 399. 
 
 Loan of State Credit, ii. 681 ; iii. 11-15. 
 Militia, i. 992 ; ii. 98-100, 106, 107. 
 Mode of Submitting the Amended Constitution 
 
 to the People, iii. 658, 659, 681, 694, 718. 
 Motions, i. 383 ; ii. 466 ; iii. 287, 603. 
 Orders, i. 122. 
 
 Pardoning Power, i. 972, 973. 
 Place of Meeting, i. 27, 28, 65, 66. 
 Plurality, i. 401-406,423; iii. 108, 136, [137, 139, 
 
 169, 287, 536, 568, 569. 
 Qualifications of Voters, i. 626, 627 ; ii. 274-276, 
 
 728. 
 
 Secretary, Treasurer, &c., i. 906. 
 Senators in Congress, i. 383. 
 Senate, i. 199-201, 228, 229, 231. 
 IIAZEWELL, CHARLES C. 
 Appeared and took seat in Convention, as Dele 
 gate from Concord, to fill the vacancy occa 
 sioned by the death of Mr. Gourgas, Vol. iii. 
 125. 
 HENRY, SAMUEL. 
 
 Leave of Absence, Vol. iii. 363. 
 HILLARD, GEORGE S. 
 
 Amendments and Enrolment, Vol. iii. 351. 
 
 Closing Debate, i. 408. 
 
 Declaration of Rights, iii. 420, 421, 424, 431. 
 
 Final Adjournment, iii. 727. 
 
 House of Representatives, ii. 58, 59, 127-134. 
 
 Imprisonment for Debt, iii. 409, 412. 
 
 Judiciary, iii. 235, 212-214, 386. 
 
 Loan of the State Credit, ii. 306, 307. 
 
 Mode of Submitting the Amended Constitution 
 
 to the People, iii. 663, 700, 707, 708. 
 Negligence of Railroad Corporations, iii. 465. 
 Pay Roll, ii. 328. 
 
 Personal Explanation, ii. 833, 834. 
 Plurality, i. 277, 278, 411-414; iii. 160, 161, 165, 
 
 166, 557. 
 Question of Order, iii. 653, 645. 
 
 Qualifications of Voters, i. 611, 618-621, 697,698. 
 Rights of the Jury, iii. 441-444, 504, 505. 
 Secretary, Treasurer, &c., ii. 471-473, 528-532. 
 Senate, i. 195, 196, 198. 
 HOBART, AARON. 
 Orders, Vol. i. 216. 
 HOBBS, EDWIN. 
 
 Death of Mr. Gourgas, Vol. ii. 740, 744. 
 Motions, ii. 744. 
 Presented Credentials of Delegate from Concord, 
 
 iii. I2b. 
 
 HOLDER, NATHANIEL. 
 Closing Debate, Vol. i. 298. 
 Constitutional Conventions, iii. 523. 
 Declaration of Rights, iii. 425, 431. 
 House of Representatives, ii. 183, 184. 
 Judiciary, ii. 711, 712. 
 Motions, i. 298, 299 ; iii. 523. 
 Plurality, i. 247, 296. 
 Qualifications of Voters, i. 743, 744. 
 Senate, i. 202. 
 
 Homestead, Free. Vol. i. 93. 
 HOOD, GEORGE. 
 Adjournment, Vol. i. 232, 272. 
 Berlin Vacancy, i. 181, 185. 
 Concerning First Secretary of Convention, i. 9. 
 Governor, i. 334, 337. 
 House of Representatives, ii. 247. 
 Imprisonment for Debt, iii. 486. 
 Judiciary, ii. 811-818; iii. 207, 210. 
 Motions, i. 57, 87, 626, 744. 
 New Towns, iii. 243, 244. 
 Orders, i. 177. 
 Pay Roll, ii. 328, 330. 
 Place of Meeting, i. 87. 
 Printing, i. 233. 
 Qualifications of Voters, i. 552,553, 555, 556,569- 
 
 571, 616-648, 680 ; ii. 274. 
 Reports, i. 296. 
 Rules and Orders, i. 57-60. 
 Senate, i. 231. 
 HOOPER, FOSTER. 
 Adjournment, Vol. i. 41, 558. 
 Banking, iii. 327-329, 336, 356. 
 Choice of President, i. 9. 
 Choice of Secretaries, i. 7-9. 
 Choice of Messenger, i. 53. 
 Closing Debate, i. 298 ; ii. 34, 35, 244. 
 Constitutional Conventions, iii. 523, 526, 532, 533, 
 Council, i. 531. 
 
 Distribution c. Debates, iii. 638, 641. 
 Governor, i. 317, ?18 ; ii. 60. 
 House of Representatives, ii. 138-140, 192, 193, 
 
 244, 368, 369, 395, 397, 633 ; iii. 583-585. 
 Judiciary, ii. 687, 693, 696, 699-701, 70S, 708, 709, 
 756, 777-779; iii. 181, 196-198, 201, 211,229, 
 234, 237, 637. 
 
 Lieutenant-Governor, i. 536, 537, 539, 540. 
 Loan of the State Credit, ii. 301, 302. 
 Militia, ii. 81. 
 Mode of Submitting the Amended Constitution 
 
 to the People, iii. 682. 
 Mode of Procedure, i. 10. 
 
1853.] 
 
 INDEX. 
 
 787 
 
 MEMBERS AND SUBJECTS. 
 
 Motions, i. 7, 9, 10, 33, 50, 53, 130, 372, 590, 591, 
 
 701, 708 ; ii. 481, 703, 756, 777 ; iii. 39, 40, 148, 
 
 229, 240, 275. 
 
 New Towns, iii. 77, 78, 89, 148, 240, 241-243, 247. 
 Orders, i. 13, 143, 189. 
 
 Oaths and Subscriptions, ii. 486, 487, 551, 552. 
 Place of Meeting, i. 21, 22, 52. 
 Plurality, i. 87, 90, 233, 236, 278-281, 419-423, 426, 
 
 427, 433, 434 ; iii. 137, 138, 140, 151, 152, 275, 
 
 280, 281. 
 
 Printing, i. 233, 249. 
 Qualifications of Voters, i. 551, 552,554, 591-594, 
 
 609, 701 ; ii. 273, 754. 
 Reports, i. 159. 
 Resolutions, i. 87, 973, 974. 
 Rules and Orders, i. 34, 35, 59, 60. 
 Senate, i. 194. 
 Time of Meeting, i. 733. 
 University at Cambridge, iii. 39, 40. 
 HOPKINSON, THOMAS. 
 Constitutional Conventions, VoL iii. 494. 
 Contested Seat of Delegate from Walpole, i. 106- 
 
 108. 
 
 Council and Lieutenant-Governor, i. 458. 
 Death of Mr. Gourgas, ii. 742, 743. 
 Declaration of Rights, iii. 377, 378. 
 Governor, i. 327, 328, 334-337- 
 Imprisonment for Debt, iii. 412-414. 
 Judiciary, iii. 311, 628, 629. 
 
 Loan of the State Credit, ii. 6:54-663,679; iii. 5. 
 Militia, ii. 7-10, 14, 31, 106, 114, 115. 
 Motions, i. 508. 
 
 Oaths and Subscriptions, i. 372. 
 Plurality, i. 416 ; iii. 165. 
 Qualifications of Voters, i. 751-753; ii. 119. 
 University at Cambridge, iii. 48, 49. 
 HOUGHTON, SAMUEL. 
 Leave of Absence, Vol. ii. 482. 
 Motions, ii. 218. 
 Orders, ii. 162. 
 
 Qualifications of Voters, i. 571 ; ii. 119. 
 House of Representatives. Vol. i. 89, 90, 93, 144- 
 
 178, 189, 218, 273, 425, 436, 445, 448, 590, 591, 
 
 651, 731, 777, 809-949 ; ii. 33, 38-59, 127-218, 
 
 221-218, 267-269, 314-325, 332-383, 384, 392- 
 
 433, 437-468, 556-562, 569, 576-638, 835-840 ; 
 
 iii. 290. 318,472-474,570-577, 580-613, 668-679. 
 HOYT, HENRY K. 
 Judiciary, Vol. ii. 712. 
 Leave of Absence, iii. 603. 
 Motions, i. 425. 
 New Towns, iii. 81, 84, 85. 
 Petitions, i. 425, 907. 
 HUBBARD, WILLIAM J. 
 Constitutional Conventions, Vol. iii. 533. 
 Council and Lieutenant-Governor, i. 472, 473, 482. 
 Governor, i. 317, 325, 326. 
 House of Representatives, ii. 240-242; iii. 608, 
 
 609. 
 
 Judiciary, iii. 181. 
 
 Lieutenant-Governor, i. 350-352, 538-540, 542. 
 Mode of Submitting the Amended Constitution 
 
 to the People, iii. 654, 694, 696. 
 
 Motions, i. 216. 
 
 Oaths and Subscriptions, i. 355, 356. 
 
 Place of Meeting, i. 15, 16, 66. 
 
 Printing, i. 67. 
 
 Plurality, i. 305, 409, 410, 420 ; iii. 108, 569. 
 
 Qualifications of Voters, i. 554-557, 600-602,609. 
 
 Reference of a Petition, i. 218. 
 
 Rules and Orders, i. 60. 
 
 Senate, i. 231. 
 
 Secretary, Treasurer, &c., i. 723,724, 730. 
 
 University at Cambridge, iii. 75, 76. 
 HUNTINGTON, ASAHEL. 
 
 Qualifications of Voters, Vol. ii. 506^508, 511. 
 
 Rights of the Jury, iii. 512, 513. 
 HUNT1NGTON, CHARLES P. 
 
 Appointment of Members of the Legislature to 
 Office, Vol. iii. 635. 
 
 Berlin Vacancy, i. 126-128, 172. 
 
 Corporations, ii. 255, 257. 
 
 House of Representatives, ii. 246, 247, 325, 332- 
 342, 351, 352 ; iii. 472, 473. 
 
 Imprisonment for Debt, iii. 484, 485. 
 
 Judiciary, iii. 231. 
 
 Justices of the Peace, iii. 391. 
 
 Motions, ii. 325 ; iii. 635. 
 
 Pardoning Power, i. 9/0, 971. 
 
 Plan of Representation, ii. 161, 162, 192, 193. 
 
 Plurality, i. 419, 420. 
 
 Qualifications of Voters, ii. 511, 512. 
 
 Rights of the Jury, iii. 463, 499, 500. 
 
 University at Cambridge, iii. 255, 256. 
 HUiYTINGTON, GEORGE H. 
 
 Leave of Absence, Vol. iii. 474. 
 HURLBURT, SAMUEL A. 
 
 Plurality, Vol. i. 398. 
 HURLBUT, MOSES C. 
 
 Adjournment, Vol. i. 39. 
 
 Loan of the State Credit, ii. 300, 301. 
 
 Motions, i. 876 ; ii. 194. 
 
 Plurality, iii. 281, 282, 565. 
 
 Qualifications of Voters, i. 693. 
 HYDE, BENJAMIN D. 
 
 Berlin Vacancy, Vol. i. 124-126. 
 
 Motions, iii. 127. 
 
 Pay Roll, iii. 126, 127. 
 
 Plurality, i. 247-249. 
 
 IDE, ABU AH M., JR. 
 
 Orders, Vol. i. 178. 
 Imprisonment for Debt. Vol. i. 92, 339, 558 ; iii. 
 
 405-416, 484-489, 714. 
 Imprisonment, False. Vol. i. 650. 
 
 JAMES, WILLIAM. 
 
 Adjournment, Vol. ii. 219, 221. 
 
 Loan of the State Credit, ii. 313. 
 
 Militia, ii. 107, 109. 
 
 Motions, i. 731 ; ii. 385, 617. 
 
 New Towns, iii. 243. 
 
 Plurality, i. 731 ; iii. 140, 141. 
 JENKS, SAMUEL H. 
 
 Declaration of Rights, Vol. iii. 425. 
 
 Encouragement of Literature, iii. 621. 
 
788 
 
 INDEX. 
 
 [1853. 
 
 MEMBERS AND SUBJECTS. 
 
 House of Representatives, ii. 455, 456. 
 
 Imprisonment for Debt, iii. 485. 
 
 Mode of submitting the Amended Constitution 
 
 to the People, iii. 659, 663, 683. 
 Motions, ii. 455. 
 Plan of Representation, ii. 33. 
 Question of Order, iii. 552. 
 
 Sectarian Schools, (see Encouragement of Liter 
 ature.) 
 JENKINS, JOHN. 
 
 Constitutional Conventions, Vol. iii. 518, 521. 
 Judges, List of. Vol. ii. 162. 
 
 Judiciary. Vol. i. 103, 122, 143, 144, 160, 189, &59, 
 
 447, 558, 973, 974; ii. 70. 71, 143, 162, 385, 684- 
 
 714,756-832; iii. 179-239, 310, 311, 364, 384- 
 
 387, 685-694. 
 
 Jury. Rights of the. (See " Rights, Declaration 
 
 of.") 
 
 Justices of the Peace. Vol. i. 339, 489-493; iii, 
 337-341, 361-372, 388-404. 
 
 KELLOGG, GILES C. 
 
 Frame of Government, Vol. i. 809. 
 
 Lieutenant-Governor, i. 540, 541. 
 
 Mode of Submitting the Amended Constitution 
 to the People, iii. 658. 
 
 Oaths and Subscriptions, i. 358, 359. 
 
 Orders, i. 143, 144. 
 KELLOGG, MARTIN R. 
 
 Leave of Absence, Vol. i. 986 ; iii. 337. 
 KEYES, EDWARD L. 
 
 Adjournment, Vol. i. 43, 215, 
 
 Banking, iii. 354-356. 
 
 Berlin Vacancy, i. 92, 183. 
 
 Choice of Secretary, i. 9, 10. 
 
 Closing Debate, i. 299. 
 
 Council and Lieutenant-Governor, i. 449-456. 
 
 Council, ii. 113; iii. 269, 271, 272. 
 
 Declaration of Rights, iii. 419, 427, 475, 476. 
 
 Encouragement of Literature, ii. 544, 545 ; iii. 
 614. 
 
 Frame of Government, i. 950-952, 954, 955, 964. 
 
 Governor, i. 326-3-9. 
 
 Habeas Corpus, (see Declaration of Rights.) 
 
 House of Representatives, i. 90 1-904 ; ii. 269, 
 317, 373, 374, 382, 398. 
 
 Imprisonment for Debt, iii. 407-409, 489. 
 
 Judiciary, ii. 702, 703, 709-711, 759, 770-776, 795, 
 796 ; iii. 205, 206, 224, 225, 228, 229, 234, 237, 
 63i, 635. 
 
 Justices of the Peace, iii. 367, 372, 403. 
 
 Lieutenant-Governor, i. 346, 347. 
 
 Loan of the State Credit, ii. 115, 116, 302-306. 
 
 Militia, ii. 16, 17, 31, 32, 65, 66, 73-77, 112. 
 
 Motions, i. 9 ; ii. 269 ; iii. 372, 484, 647. 
 
 New Towns, iii. 240, 241, 243. 
 
 Oaths and Subscriptions, i. 368-370 ; ii. 568. 
 
 Orders, i. 12. 
 
 Pardoning Power, i. 971, 972, 978, 979, 981-985. 
 
 Pay Roll, ii. 327-329. 
 
 Petitions, i. 114, 216, 546. 
 
 Place of Meeting, i. 37, 65-72. 
 
 Plurality, i. 245-247, 306-310, 394, 398, 424, 426, 
 
 427,434, 435; iii. 138-140, 157-159, 161, 277, 
 
 278. 
 
 Printing, i. 233. 
 
 Protest of Colored Citizens, iii. 647. 
 Qualifications of Voters, i. 568, 569 ; ii. 275, 276 rf 
 
 732-735. 
 
 Reference of a Petition, i. 218. 
 Reporting and Printing, i. 161, 162. 
 Rights of the Jury, iii. 443-445, 513, 514. 
 Secretary, Treasurer, &c., ii, 531-533. 
 Sectarian Schools, (see Encouragement of Liteix 
 
 atiue.) 
 
 Senate, i. 233, 231. 
 Sp cial Assignment, ii. 561, 562. 
 K1NGMAN, JOSEPH. 
 
 Council and Lieutenant-Governor, Vol. i. 478. 
 
 Declaration of Rights, iii. 427. 
 
 Frame of Government, i. 793, 964. 
 
 House of Representatives, ii. 321, 322, 461, 462. 
 
 Judiciary, ii. 701, 702. 
 
 Motions* i. 448, 526, 778, 809, 964 ; ii. 489, 552f r 
 
 701, 776; iii. 531. 
 
 Oaths and Subscriptions, ii. 487, 552, 
 Orders, i. 650. 
 
 Qualifications of Voters, ii. 752, 776> 777. 
 Secretary, Treasurer, &c., i, 728.- 
 Senate, i. 229. 
 KINSMAN, HENRY W. 
 Adjournment, Vol. i. 214; ii. 219. 
 Berlin Vacancy, i. 49, 50. 
 Closing of Debate, i. 488, 
 Governor, i. 318. 
 
 House of Representatives, i. 876 ; ii. 169-173, 612^ 
 Judiciary, iii, 235. 
 Limiting of Debate, iii. 130, 265. 
 Motions, i. 875, 949. 
 New Towns, iii. 83, 84; 
 Orders, i. 49. 
 
 Plurality, i. 378-382, 396, 424, 
 Senate, i. 198, 232, 204-2C6. 
 KNIGHT, HIRAM. 
 Orders, Vol. i. 233. 
 KNIGHT, JOSEPH. 
 
 Leave of Absence. Vol. i. 629. 
 KNOWLTON, CHARLES L. 
 Presented Credentials, Vol. i. 234. 
 Leave of Absence, iii. 603. 
 KNOWLTON, J. S. C. 
 Judiciary, Vol. iii. 179, 180, 185, 226,- 
 Limitation of Debate, iii. 2, 
 Lieutenant-Governor, i. 533, 
 Memorial, i. 12. 
 Motions, i. 44, 298, 538, 819 ; ii. 144, 735; iii.. 27, 
 
 179, 226, 247, 265. 
 Mode of Procedure, i. 44^ 
 Mode of Submitting the Amended Constitution 
 
 to the People, iii. 715. 
 Orders, iii. 49, 50. 
 Plurality, i. 278. 
 Reports, ii. 218, 724-726, 
 University at Cambridge, iii. 28-36, 39, 41, 46, 47 f 
 
 247- 
 
1853.] 
 
 INDEX. 
 
 789 
 
 MEMBERS AND SUBJECTS. 
 
 LADD, JOHN S. 
 
 Elections, Vol. i. 99-101. 
 
 Orders, i. 44. 
 
 Plurality, iii. 101, 102. 
 
 Rights of the Jury, iii. 446, 447. 
 
 Loan of the State Credit, iii. 10, 11. 
 
 Town of Walpole, i. 104. 
 LAWTON, JOB G., JR. 
 
 Motions, Vol. i. 337, 422, 627, 734. 
 Laws, Digest of. Vol. i. 546. 
 Legislative Power. Vol. i. 234, 249, 250, 425, 526, 
 
 651. 
 Legislature, Limiting sessions of. Vol. i. 93, 122 ; 
 
 iii. 741. 
 LELAND, ALDEN". 
 
 Distribution of Debates, Vol. iii. 639, 640, 722. 
 
 Justices of the Peace, iii. 370. 
 
 Motions, i. 219, 559 ; ii. 547 ; iii. 370. 
 
 New Towns, iii. 80. 
 
 Orders, i. 123, 160. 
 
 Printing, i. 249. 
 
 Qualifications of Voters, i. 559. 
 
 Uniformity of Receiving Votes, iii. 338. 
 Lieutenant-Governor. Vol. i. 177, 216, 340, 341, 
 344-352, 435-445, 449-483, 514-526, 535-544; 
 iii. 166.. 290, 682. 
 
 Literature. Encouragement of. Vol. i. 122, 203, 
 216, 339; ii. 482-484, 522, 569-576 ; iii. 613-626, 
 699. 
 LIVERMORE, ISAAC. 
 
 Adjournment, Vol. i. 558. 
 
 Banking, iii. 336. 
 
 Berlin Vacancy, i. 86. 
 
 Census, ii. 387. 
 
 Compensation to Officers of Convention, ii. 248. 
 
 Declaration of Rights, iii. 404, 405. 
 
 Exchange Reading Room, i. 50. 
 
 Frame of Government, i. 958. 
 
 Governor, i. 329-331, 335, 336. 
 
 Mode of Submitting the Amended Constitution 
 to the People, iii. 634-666, 718. 
 
 Motions, i. 449 ; ii. 248, 325 ; iii. 263, 646. 
 
 Oaths and Subscriptions, ii. 488. 
 
 Orders, i. 87, 93. 
 
 Pay Roll, i. 493 ; ii. 248, 325, 326 ; iii. 86, 127, 
 128, 570, 646, 647, 722. 
 
 Place of Meeting, i. 27- 
 
 Question of Order, iii. 647. 
 
 Reports, i. 493 ; iii. 83, 570, 647, 721. 
 LORD, OTIS P. 
 
 Adjournment, Vol. i. 216. 
 
 Amendments and Enrolment, iii. 302, 304, 305, 
 851. 
 
 Berlin Vacancy, i. 169-177, 182. 
 
 Closing Debate, i. 612 ; iii. 360, 361. 
 
 Corporations, ii. 260-2G2, 265, 271, 272. 
 
 Council, iii. 268, 269, 271, 272. 
 
 Constitutional Conventions, iii. 493-495, 517, 521, 
 523-525, 533, 534. 
 
 Declaration of Rights, iii. 375, 381-383, 417, 426, 
 427, 429, 431, 482, 483. 
 
 Elections, i. 101. 
 
 House of Representatives, ii. 534, 601, 627, 628- 
 
 631. 
 Imprisonment for Debt, iii. 409, 410, 412, 485, 
 
 486. 
 Judiciary, ii. 687 ; iii. 181, 187, 188, 202-295, 209- 
 
 211, 237, 238, 631, 632. 
 Justices of the Peace, iii. 363-365, 368, 369, 317, 
 
 395-397, 399, 400. 
 Lieutenant-Governor, i. 352. 
 Limitation of Debate, iii. 364. 
 Loan of the State Credit, iii. 24, 25. 
 Morle of Submitting the Amended Constitution 
 
 to the People, iii. 651, 651, 654, 6-57, 658, 661- 
 
 664, 666, 667, 6/3, 675-678, 685, 689, 692-694, 
 
 696. 
 
 Motions, I. 627 ; ii. 556 ; iii. 148, 364, 
 New Towns, iii. 148, 242, 243. 
 Pay Roll, iii. 129. 
 Place Of Meeting, i. 28, 29. 
 Plurality, iii. 111-115, 146, 148, 287, 547, 548, 562, 
 
 565, 566, 569. 
 Qualifications of Voters, i. 573-581, 584, 606,608, 
 
 627-638. 
 
 Question of Order, iii. 538-541, 552, 553, 644, 645. 
 Rights of the Jury, iii. 459-461, 510-512. 
 R-iles and Orders, i. 55, 58, 59. 
 Secretary, Treasurer, &c., ii. 478-481, 536-539, 
 
 541-543. 
 
 Special Assignment, ii. 556-561. 
 LOTHROP, SAMUEL K. 
 Encouragement of Literature, Vol. ii. 543, 544, 
 
 571-574; iii. 617, 618, 621. 
 Final Adjournment, iii. 726. 
 Orders, i. 188, 189, 341. 
 Place of Meeting, i. 64, 
 Prayer, i. 7 ; iii. 728. 
 Qualifications of Votefs, i. 746-751, 753, 754 ; 
 
 ii. 251, 252. 
 
 Sectarian Schools, (see Encouragement of Lit 
 erature.) 
 University at Cambridge, iii. 47, 48, 248-253, 254. 
 
 MARBLE, WILLIAM P. 
 
 Leave of Absence, Vol. iii. 603. 
 MARCY, LABAN. 
 
 Leave of Absence, Vol. iii. 603. 
 MARVIN, ABIJAH P. 
 
 Encouragement of Literature, Vol. ii. 121. 
 
 House of Representatives, ii. 352-354, 397, 398. 
 
 Motions, ii. 252, 701, 738, 752. 
 
 Orders, i. 159, 359. 
 
 Qualifications of Voters, ii. 253, 73S, 744-752, 755, 
 
 756 ; iii. 27. 
 MARVIN, THEOPHILUS R. 
 
 Distribution of Debates, Vol. iii. 638. 
 
 Final Adjournment, iii. 728. 
 
 Mode of Submitting to People, iii. 716-718.. 
 
 Motion, iii. 717. 
 MASON, CHARLES. 
 
 Mode of Submitting to People, Vol. iii. TOO, 701, 
 711. 
 
 Order, i. 160. 
 
790 
 
 INDEX. 
 
 [1853. 
 
 MEMBERS AND SUBJECTS. 
 
 MEADER, REUBEN. 
 
 Leave of Absence, Vol. iii. 289. 
 Members, List of. Vol. i. 3-7. 
 Memorials and Petitions of Edwin Lawrence and 
 
 Nehemiah Flanders. Vol. i. 33. 
 James Russell, i. 88. 
 John W. Le Barnes et al., i. 113. 
 Francis Jackson et al., i. 113, 114. 
 Harriet L. Randall et al., i. 114. 
 James B. Allen et al., i. 114. 
 T. W. Higginson et al., i. 159. 
 Citizens of Roxbury, and citizens of Egre- 
 mont, in aid of that of J. W. Le Barnes 
 et al., i. 159. 
 Harriot K. Hunt, i. 163. 
 Benjamin K. Brown et al., i. 188. 
 Wendell Phillipps et al., i. 216. 
 Abby B. Alcott et al., i. 216. 
 Charles Phelps et al., of Munroe, Joseph 
 Proctor et al., Jacob W. Hinckley et al., 
 George W. Todd et al., Frederic W. Fol- 
 ger et al., in aid of that of J. W. Le 
 Barnes et al., i. 297. 
 Josiah Henshaw et al., i. 359. 
 J. A. Saxton et al., i. 425. 
 John P. Coburn et al., i. 425. 
 Zilpha W. H. Spooner et al., i. 493. 
 Citizens of Massachusetts, i. 546. 
 Abby Alcott et al., i. 612. 
 Jonathan E. Field et al., i. 614. 
 Timothy Fletcher and others, i. 758. 
 Lucretia Uphain and others, i. 796. 
 Abby Alcott and others, i. 796. 
 Wendell Phillips and others, i, 796. 
 Mary E. C. Higginson and others, i. 842. 
 Emily A. Loveland and others, i. 842. 
 Nathaniel T. Johnson and others, i. 907. 
 Silas Lamson and others, i. 949. 
 J. F. Evans and others, li. 2. 
 A. T. Willard and others, ii. 70. 
 Edward A. Newton and others, ii. 71. 
 J. G. Forman and others, ii. 99. 
 Josiah Francis and others, ii. 247. 
 Betsey T. Heywood and others, ii. 287. 
 Abby H. Price and others, ii. 287. 
 C. J. J. Ingersoll and others, ii. 569. 
 Otis F. R. Waite and others, ii. 657. 
 James Cain and others, ii. 744. 
 Meeting, Place of. Vol. i. 12, 14, 23-33, 36-39, 
 
 51-53, 61-72, 87. 
 Meeting, Time of. Vol. i. 33, 50, 53, 87, 148, 449, 
 
 708, 731-734, 796, 936 ; ii. 33-38, 656, 744. 
 MILLER, SETH, JR. 
 
 Constitutional Conventions, Vol. iii. 526, 527. 
 
 Council and Lieutenant-Governor, i. 483, 542, 543. 
 
 Governor, i. 323 ; ii. 63. 
 
 Hour of Meeting, i. 448, 449. 
 
 Justices of the Peace, iii. 371, 372. 
 
 Loan of the State Credit, ii. 313. 
 
 Militia, i. 992 ; ii. 32. 
 
 Mode of Submitting the Amended Constitution 
 
 to the People, iii. 681, 697. 
 Motions, i. 449 ; ii. 313; iii. 371, 484. 
 
 Rights of the Jury, iii. 497, 498. 
 Secretary, Treasurer, &c., i. 720-722. 
 Militia, Vol. i. 986-994; ii. 2-32, 60-115; iii. 698, 
 
 711. 
 
 MIXTER, SAMUEL. 
 Distribution of Books, Vol. iii. 384, 435, 437. 
 Motions, i. 891. 
 Order, iii. 384. 
 Plurality, iii. 561, 562. 
 Mode of Proceeding. Vol. i. 35, 36, 44. 
 Monitors. Vol. i. 89, 203 ; ii. 248-251. 
 MOREY, GEORGE. 
 Council, Vol. i. 513, 514. 
 Contested Seat of Delegate from Walpole, i. 110, 
 
 111,113. 
 
 Judiciary, iii. 636. 
 Law Library Association, i. 33. 
 Motions, iii. 471. 
 Plurality, iii. 102-105. 
 
 Qualifications of Voters, i. 560-562, 691, 693-695, 
 MORSS, JOSEPH B. 
 House of Representatives, Vol. ii. 165-167. 
 Orders, i. 178. 
 
 Qualifications of Voters, i. 603-605. 
 MORTON, ELBRIDGE G. 
 Frame of Government, Vol. i. 794, 795. 
 Orders, i. 11, 23, 50, 66, 67. 
 Place of Meeting, i, 25. 
 Pay Roll, ii. 326. 
 Request, i. 12. 
 Time of Meeting, i. 50. 
 MORTON, MARCUS. 
 Adjournment, Vol. i. 215. 
 
 Amendments and Enrolment, iii. 267, 350, 351, 
 Berlin Vacancy, i. 48, 73-76, 79-81. 
 Closing Debate, i. 298, 652. 
 Council, i. 527-531. 
 Distribution of Debates, iii. 639. 
 Frame of Government, i. 800, 801, 803-805, 807, 
 
 808, 861. 
 
 Governor, i. 325, 326, 332, 333, 336. 
 
 House of Representatives, ii. 372, 373, 438, 442- 
 
 450, 458, 459, 461, 462, 464, 577-588, 631, 632, 
 
 637, 638; iii. 472, 473, 570, 573, 580, 610, 611. 
 
 Judiciary, ii. 684-686, 693, 694, 696, 697, 714, 820- 
 
 828 ; iii. 632, 633, 635-637. 
 Justices of the Peace, i. 493; iii. 340. 
 Loan of the State Credit, ii. 309-312, 314, 642. 
 
 664-669, 677, 679. 
 Mo !e of Organizing, i. 8. 
 Mode of Submitting the Amended Constitution 
 
 to the People, iii. 666, 670-672, 701-706. 
 Motions, i. 7, 803; ii. 458, 820, 828 ; iii. 240, 267, 
 
 387, 416, 580. 
 
 Oaths and Subscriptions, ii. 554. 
 Orders, iii. 416. 
 Place of Meeting, i. 30-32. 
 Printing, i. 67. 
 Plurality, i. 259-262, 275, 373-378, 389, 395, 424, 
 
 427. 
 Qualifications of Voters, i. 653-656, 683, 743, 744; 
 
 ii. 494-496, 532, 505,-507, 755. 
 Question of Order, iii. 465, 541, 542. 
 
1853.] 
 
 INDEX. 
 
 791 
 
 MEMBERS AXD SUBJECTS. 
 
 Reports from Committees, i. 447; ii. 267 ; iii. 531, 
 
 Resolutions, ii. 314. 
 
 Rights of the Jury, iii. 505-507, 510. 
 
 Secretary Treasurer, &c., i. 770-772. 
 
 Senate, i. 223-226. 
 MORTON, MARCUS, JR. 
 
 Judiciary, Vol. iii. 632. 
 
 Justices of the Peace, iii. 333, 370, 371. 
 
 Motions, i. 819, 961; ii. 52, 273,744. 
 
 Orders, i. 163. 
 
 Qualifications of Voters, ii. 275. 
 MORTON, WILLIAM S. 
 
 Corporations, Vol. iii. 179. 
 
 Constitutional Conventions, iii. 517, 518. 
 
 Lieutenant-Governor, i. 537. 
 
 Motions, i. 316,464, 540, 541, 891; ii. 104, 109, 
 533 ; iii. 484. 
 
 Militia, ii. 110. 
 
 Orders, i 114, 493. 
 
 Qualifications of Voters, i. 562 ; ii. 120, 276. 
 
 Secretary, Treasurer, &c., i. 708 ; ii. 534. 
 
 NAYSON, JONATHAN. 
 
 Amendments and Enrolment, Vol. ii. 562-567, 
 714-717, 723 ; iii. 317. 
 
 Banking, iii. 358. 
 
 Corporations, ii. 125, 263, 264, 266, 269-271. 
 
 Constitutional Conventions, iif. 494. 
 
 Election of Officers, i. 8. 
 
 Frame of Government, i. 804, 805. 
 
 Memorials, i. 33. 
 
 Motions, i. 8. 162, 218, 235, 464 ; ii. 125, 266, 714. 
 
 Place of Meeting, i. 43, 52, 64, 65. 
 
 Plurality, i. 423. 
 
 Reports, ii. 280, 281. 
 
 Senate, i. 218. 
 
 Secretary, Treasurer, &c., i. 718. 
 
 Suspension of the Rules, i. 32. 
 
 University at Cambridge, iii. 233. 
 NEWMAN, CHARLES. 
 
 Declaration of Rights, Vol. iii. 382, 383. 
 NORTON, ALFRED. 
 
 Leave of Absence, Vol. iii. 196. 
 NOYES DANIEL. 
 
 Motions, Vol. i. 50, 53, 216, 295. 
 
 Oaths and Subscriptions, Vol. i. 233, 353-372, 408, 
 
 731 ; ii. 484-489, 550, 556, 588 ; iii. 697, 698. 
 Officers, County and District. Vol. i. 104, 203, 489, 
 703-731, 759-778 ; ii. 468-482, 523-542, 547 ; iii. 
 700. 
 
 Office, Tenure of. Vol. iii. 623-630, 637, 700. 
 OLIVER, HENRY K. 
 Adjournment, Vol. i. 385. 
 Declaration of Rights, iii. 434, 435. 
 Election of Officers, iii. 637. 
 House of Representatives, ii. 382, 383. 
 Lieutenant-Governor, i. 538. 
 Militia, i. 987-994 ; ii. 2, 4-6, 28, 32, 81-88, 94, 100- 
 
 103, 110-112, 248-250. 
 Mode of Submitting the Amended Constitution 
 
 to the People, iii. 665, 670, 683, 698, 711, 724. 
 Motions, i. 332, 627, 731, 734, 746 ; ii. 834 ; iii. 
 118, 569, 724. 
 
 Oaths and Subscriptions, ii. 488. 
 Personal Explanation, iii. 647. 
 Plurality, i. 271, 382, 383; iii. 118. 
 Qualifications of Voters, i. 621, 625, 746. 
 Reports from Committees, i. 930, 987 ; ii. 52, 71. 
 Time of Meeting, i. 731, 732, 734. 
 Order, Question of. Vol. iii. 536-545, 550-554. 
 
 PAIGE, JAMES W. 
 
 Distribution of the Debates of the Convention, 
 
 Vol. iii. 724. 
 PAINE, BENJAMIN. 
 
 Declination, Vol. i. 93. 
 Pardoning Power. Vol. i. 965-986. 
 PARKER, JOEL. 
 
 Amendments and Enrolment, Vol. iii. 300, 305- 
 337, 309, 310. 
 
 Berlin Vacancy, i. 82-85, 141, 144-159, 162, 165, 
 183. 
 
 Closing Debate, i. 652, 653. 
 
 Declaration of Rights, iii. 425, 
 
 Encouragement of Literature, ii. 546; iii. 337, 
 485,472,614,623-525. 
 
 House of Representatives, i. 931-936. 
 
 Judiciary, ii. 792, 793-799. 
 
 Mode of Submitting the Amended Constitution 
 to the People, iii. 695. 
 
 Motions, i. 930 ; ii. 792 ; iii. 465, 472. 
 
 Plurality, i. 420, 432, 433. 
 
 Qualifications of Voters, i. 649, 670, 671, 680, 
 744 ; ii. 501-505, 510, 511, 517, 518. 
 
 Rights of the Jury, iii. 456-463. 
 
 Sectarian Schools, (see Encouragement of Liter 
 ature.) 
 
 University at Cambridge, iii. 46. 
 PARSONS, THOMAS A. 
 
 Berlin Vacancy, Vol. i. 88. 
 
 Frame of Government, i. 782, 783. 
 
 Judiciary, iii. 633, 634. 
 
 Militia, ii. 3, 10-12. 
 
 Place of Meeting, i. 87. 
 
 Plurality, i. 236, 237. 
 
 Pay Roll. Vol. i. 123, 160, 217, 493; ii. 248, 325- 
 332 ; iii. 86, 100, 125-129, 290, 570, 646, 721, 722. 
 PENNIMAN, JOHN. 
 
 Motions, Vol. i. 425. 
 
 Petitions, i. 425. 
 PERKINS, DANIEL A. 
 
 Berlin Vacancy, Vol. i. 81. 
 
 Motions, i. 730 ; ii. 701 ; iii. 626. 
 
 Plurality, i. 304 ; iii. 569. 
 
 Qualifications of Voters, i. 563, 687, 668. 
 
 Secretary, Treasurer, &c., i. 730, 731. 
 Petitioning the Legislature. Vol. i. 425, 544-546. 
 Petitions to Convention, (see Memorials.) 
 PHELPS, CfcLARLES. 
 
 Adjournment, Vol. i. 42, 43. 
 
 Closing of Debate, i. 612, 613. 
 
 House of Representatives, i. 946 ; iii. 573-576. 
 
 Orders, i. 487. 
 
 Qualifications of Voters, ii. 252, 253. 
 
 Time of Meeting, i. 732, 733, 796. 
 
792 
 
 INDEX. 
 
 [1853, 
 
 MEMBERS AND SUBJECTS. 
 
 PHINNEY, SILVANUS B. 
 Adjournment, Vol. ii. 461. 
 House of Representatives, ii. 370. 
 Loan of the State Credit, ii. 308, 309. 
 Motions, i. 492, 494, 708, 734, 891 ; ii. 461, 482. 
 Secretary, Treasurer, &c., i. 715. 
 PLUNKE1T, WILLIAM C. 
 Banking, Vol. iii. 3-36. 
 Declaration of Rights, iii. 428. 
 Elections, i. 102. 
 Motions, iii. 356, 436, 613, 659. 
 Mode of Submitting the Amended Constitution 
 
 to the People, iii. 659. 
 
 Plurality, Elections by. Vol. i. 87, 90, 124, 159, 
 235-271, 274-316, 372-383, 385-424, 426-436, 445, 
 464,437; iii. 86-99, 101-118,131-166,275-239, 
 534-56.1, 577-530, 695, 771. 
 Population, &c. Vol. i. 433, 445-447. 
 POWERS, PETER. 
 Orders, Vol. i. 359. 
 Prayer, Opening. Vol. i. 7. 
 
 Closing. Vol. iii. 728. 
 Preliminary Business. Vol. i. 10, 33. 
 President, Election of. Vol. i. 9. 
 
 Ad .iress of, on taking the chair of the Con 
 vention, i. 9, 10. 
 
 Resolution of thanks to, iii. 642, 643. 
 Address of, on Final Adjournment, iii. 728, 
 
 729. 
 Printing. Vol. i. 34, 66, 67, 123, 141-143, 160-162, 
 
 233. 
 
 Privileges, Special. Vol. i. 650. 
 Property, right to hold. Vol. i. 92. 
 PUTNAM, JOHN A. 
 
 Motions, Vol. i. 950 ; ii. 483. 
 
 Railroad Accidents. Vol. iii. 465, 468. 
 RANTOUL, ROBERT. 
 
 Called Convention to Order,"Vol. i. 7. 
 
 Census, ii. 387. 
 
 Election of President pro tempore of Convention, 
 iii. 219. 
 
 Encouragement of Literature, ii. 516. 
 
 House of Representatives, i. 842-850. 
 
 Motions, i. 273 ; iii. 219. 
 
 New Towns, iii. 78. 
 
 Pay Roll, iii. 127. 
 
 Resolutions, i. 89, 90. 
 
 Rights of the Jury, iii. 502, 503. 
 
 University at Cambridge, iii. 40. 
 Records, Preservation of. Vol. i. 13; iii. 148, 274, 
 
 275. 
 REED, SAMPSON. 
 
 Leave of Absence, Vol. i. 407. 
 Registering of Deeds. Vol. i. 590. 
 Reporting. Vol. i. 141-143, 160-162, 777- 
 Representation, Plans of. Vol. i. 89, 9,), 160, 273, 
 590, 591, 777, 862, 876 ; ii. 33, 268, 352, 384, 430, 
 459. 
 
 Resignations. Vol. i. 13, 103, 143, 217. 
 RICE, DAVID. 
 
 Order, Vol. i. 122. 
 Rights, Declaration of. Vol. i. 122, 178, 203 ; iii. 
 
 372-383, 404-465, 468-471, 474-484, 497-517, 
 631-659. 
 ROCKWELL, JULIUS. 
 
 House of Representatives, Vol. ii. 224-227. 
 
 Petitions, ii. 71. 
 
 Rights of the Jury, iii. 514. 
 ROCKWOOD, JOSEPH M. 
 
 Plan of Representation, Vol. i. 876. 
 Roll Call. Vol. i. 796. 
 Rules and Orders. Vol. i. 33, 34, 53-64 
 
 SARGENT, JOHN. 
 
 Adjournment, Vol. i. 448. 
 
 Amendments and Enrolment, iii. 299. 
 
 Berlin Vacancy, i. 47. 
 
 Constitutional Conventions, iii. 490-493. 
 
 Contested Seat for Walpole, i. Ill, 112. 
 
 Corporations, iii. 54,59. 
 
 Closing Debate, i. 4 08. 
 
 Distribution of Books, iii. 436, 437. 
 
 Frame of Government, i. 955, 957. 
 
 Encouragement of Literature, ii. 549. 
 
 Governor, i. 322. 
 
 House of Representatives, i. 862-870 ; ii. 222- 
 
 224; iii. 58G. 
 
 Lieutenant-Governor, i. 518, 537. 
 Militia, ii. 106. 
 Mode of Submitting the Amended Constitution 
 
 to the People, iii. 650, 711. 
 Motions, i. 861. 
 
 New Towns, iii. 80, 81, 246, 247. 
 Oaths and Subscriptions, ii. 483. 
 Plurality, i. 257-259, 420. 
 Qualifications of Voters, i. 626, 699, 700; ii. 493, 
 
 494, 500, 506, 510. 
 Rules and Orders, i. 57. 
 Secretary, Treasurer, &c., i. 763-765. 
 SCHOULER, WILLIAM. 
 Banking, Vol. iii. 326, 327. 
 Berlin Vacancy, i. 184, 185. 
 Closing Debate, ii. 438. 
 Constitutional Conventions, iii. 494, 521, 524, 525, 
 
 529, 530, 532, 533. 
 
 Corporations, iii. 58, 59, 61, 65, 72, 167, 168. 
 Council, iii. 274. 
 Death of Mr. Gourgas, ii. 739. 
 Declaration of Rights, iii. 416, 431,435, 471, 483. 
 Distribution of Debates, iii. 639. 
 Employing Reporters, i. 12. 
 Frame of Government, i. 782, 793, 959. 
 Governor, ii. 59, 60. 
 
 Habeas Corpus, (see Declaration of Rights.) 
 House of Representatives, i. 842, 850-853, 946 ; 
 
 ii. 136, 419. 420. 438, 450, 454, 455, 601, 609-611, 
 
 615 ; iii. 589-591. 
 
 Imprisonment for Debt, iii. 486, 489, 629. 
 Judiciary, ii. 707, 708 ; iii. 206, 223, 237, 311. 
 Justices of the Peace, iii. 366, 367, 370. 
 Lieutenant-Governor, i. 518, 519, 642. 
 Loan of the State Credit, iii. 14-17. 
 Militia, ii. 103, 105, 106, 109-111. 
 Mode of Submitting the Amended Constitution 
 
 to the People, iii. 650, 654-656, 670, 672, 673, 
 
 690, 711. 
 
1853.] 
 
 INDEX. 
 
 793 
 
 MEMBERS AND SUBJECTS. 
 
 Motions, i. 90, 202, 464, 571, 614, 627, 9-53 ; ii. 33, 
 450, 776; iii. 80, 84, 219, 237, 471,484, 521, 629. 
 New Towns, iii. 84, 241, 244, 245. 
 Oaths and Subscriptions, ii. 487. 
 Orders, i, 296. 
 Pardoning Power, i. 971. 
 Pay Roll, iii. 126. 
 Petitions, i. 113. 
 Place of Meeting, i. 26, 27. 
 Plurality, i. 241-244, 289, 290, 303, 313-316, 416, 
 417, 427, 428, 430, 431, 434, 435 ; iii. 95, 96, 108- 
 110, 115, 145, 158-160, 163, 275, 555, 556, 558- 
 561, 563. 
 
 Plan of Representation, ii. 161, 433. 
 Qualifications of Voters, i. 571, 611, 612, 625,639- 
 
 643, 678, 679, 757. 
 Question of Order, Hi. 550-552. 
 Quorum of the House, ii. 836, 837 ; iii. 318, 
 Reporting Proceedings, i. 143, 161, 162. 
 Rules and Orders, i. 56, 57- 
 Secretary, Treasurer, &c., i. 706, 707, 760; ii. 535, 
 
 540-542. 
 
 Senate, i, 208, 209. 
 Time of Meeting, i. 734. 
 University at Cambridge, iii. 40. 
 Schools, Sectarian. Vol. i. 359; ii. 543-550; iii. 
 
 337,472,613-626,714. 
 Seats, Assignment of. Vol. i. 103, 121. 
 Secretary, Treasurer, &c. Vol. i. 489, 703-731, 
 759-780, 875, 906 ; ii. 385, 468-481, 523-542; iii. 
 683-685. 
 Senate. Vol. i. 89, 93, 122, 123, 190-202, 204-213, 
 
 218-233 ; ii. 117 ; iii. 667, 668. 
 Senators in Congress. Vol. i. 383, 384. 
 Sessions of Convention, two daily. Vol. i. 234, 
 
 296. 
 
 SHELDON, LUTHER. 
 Adjournment, Vol. i. 232, 385. 
 House of Representatives, ii. 413-419. 
 Judiciary, iii. 237. 
 Motions, i. 316. 385, 
 Oaths and Subscriptions, ii. 487. 
 SIMMONS, PEREZ. 
 Amendments and Enrolment, Vol. ii. 567 ; iii. 
 
 299, 317. 
 
 Berlin Vacancy, i. 44. 
 
 Constitutional Conventions, i. 342, 343 ; iii. 524. 
 Elections, i. 101, 102. 
 Motions,!. 14; iii. 299. 
 SIMONDS, JOHN W. 
 Amendments and Enrolment, Vol. i. 304 ; iii. 
 
 34 1, 345. 
 
 House of Representatives, i. 905, 906. 
 Justices of the Peace, iii. 391. 
 Motions, i. 53, 906, 
 Pay Roll, ii. 328. 
 Plurality, i. 302-304. 
 
 Qualifications of Voters, i. 554, 556, 562, 563. 
 Resolutions, i. 114. 
 Senate, i. 194, 195, 209-212. 
 Time of Meeting, i. 53. 
 
 Speeches, Limitation of. Vol. ii. 99, 120, 435-437, 
 793 ; iii. 1, 2, 130, 265-267, 364, 365. 
 
 SPRAGUE, PELEG. 
 
 Berlin Vacancy, Vol. i. 86. 
 
 Resignation, i. 143. 
 SPOONER, SAMUEL W. 
 
 Adjournment, Vol. i. 232. 
 
 Declaration of Rights, iii. 425, 426. 
 
 House of Representatives, ii. 227-229. 
 
 Militia, i. 989 ; ii. 74. 
 
 Motions, i. 425 ; ii 332 ; iii. 242. 
 
 New Towns, iii. 242. 
 
 Pay Roll, ii. 332. 
 
 Place of Meeting, i. 2i, 25. 
 
 Plurality, i. 421, 422 ; iii. 564, 565. 
 
 Secretary, Treasurer, &c., i. 725. 
 State Prison Inspector. Vol. i. 340, 489, 703, 724, 
 
 780. 
 
 State Credit, Loan of the. Vol. i. 94, 234, 272. 
 425, 445, 861 ; ii. 115, 116, 121, 122, 281-314, 
 523, 639, 656, 657-683 ; Hi. 2-26. 
 STETSON, CALEB. 
 
 Banking, Vol. iii. 334-336, 352, 357. 
 
 Corporations, ii. 125, 253, 254 ; Hi. 73, 179. 
 
 Council, i. 534. 
 
 Closing Debate, ii. 35, 36. 
 
 Declaration of Rights, iii. 483, 642. 
 
 Encouragement of Literature, ii. 545, 546. 
 
 Frame of Government, i. 803, 952, 953. 
 
 Governor, i. 317. 
 
 Habeas Corpus, (see Declaration of Rights.) 
 
 House of Representatives, ii. 190, 191,245,372; 
 iii. 642. 
 
 Judiciary, iii. 234. 
 
 Mode of Submitting the Amended Constitution 
 to the People, iii. 705, 716, 717. 
 
 Motions, i. 652, 734 ; ii. 36, 99, 245, 254, 392, 523, 
 543,550, 639; Hi. 165,642,724. 
 
 New Towns, Hi. 243, 244. 
 
 Orders, i. 692. 
 
 Pay Roll, ii. 329, 330. 
 
 Place of Meeting, i. 14, 15, 67, 68. 
 
 Plurality, i. 411 ; iii. 98, 99, 165, 232, 283. 
 
 Protest of Colored Citizens, Hi. 724. 
 
 Resolutions, ii. 433. 
 
 Special Assignment, ii. 534. 
 
 University at Cambridge, iii. 75. 
 STEVENS, CHARLES G. 
 
 House of Representatives, Vol. ii. 161. 
 
 Qualifications of Voters, ii. 120, 510, 518-520. 
 STEVENS, GRANVILLE. 
 
 Judiciary, Vol. ii. 793. 
 
 Limitation of Debate, Hi. 2. 
 
 Motions, ii. 793. 
 STEVENS, JOSEPH L., JR. 
 
 Orders, Vol. ii. 217. 
 STEVENSON, J. THOMAS. 
 
 Constitutional Conventions, Vol. iii. 526. 
 
 Judiciary, iii. 232, 636. 
 
 Justices of the Peace, iii. 370-372, 383. 
 
 Limitation of Debate, iii. 130. 
 
 Loan of the State Credit, ii. 673, 674. 
 
 Motions, i. 862; iii. 232, 372, 33*. 
 
 Plurality, iii. 87-93, 549, 556, 557, 566. 
 
 Question of Order, Hi. 536-539, 549, 550. 
 
794 
 
 INDEX. 
 
 [1853. 
 
 MEMBERS AND SUBJECTS. 
 
 Reports from Committees, i. 861 ; iii. 383. 
 bTORROW, CHARLES S. 
 
 Leave of Absence, Vol. i. 509, 612. 
 STRONG, ALFRED L. 
 
 Imprisonment for Debt, Vol. iii. 405-407, 409, 
 411, 412. 
 
 Judiciary, iii. 208. 
 
 Motions, iii. 407. 
 
 Orders, i. 93, 558. 
 STUTSON, WILLIAM. 
 
 Presented Credentials, Voh i. 188. 
 Suffrage. Vol. i. 891. 
 SUMNER, CHARLES. 
 
 Constitutional Conventions, Vol. iii. 490. 
 
 Declaration of Rights, iii. 373, 374, 376-378, 381, 
 382, 417, 418, 422. 
 
 House of Representatives, ii. 588-597, 614, 615. 
 
 Loan of the State Credit, iii. 20, 21. 
 
 Militia, ii. 68, 69, 90-92, "93. 
 
 Reports from Committees, i. 527 ; ii. 638, 639. 
 
 Resolutions, i. 546. 
 SUMNER, INCREASE. 
 
 Adjournment, Vol. i. 39, 40. 
 
 Closing Debate, i. 488. 
 
 Frame of Government, i. 801, 802. 
 
 Governor,!. 316, 321,337. 
 
 Judiciary, ii. 688, 689; iii. 202, 229-222. 
 
 Loan of the State Credit, ii. 663, 664. 
 
 Motions, i. 489, 490 ; iii. 140. 
 
 Orders, i. 233. 
 
 Pardoning Power, i. 975, 976. 
 
 Printing, i. 233, 249, 250. 
 
 Plurality, iii. 140. 
 
 Qualifications of Voters, ii. 496-498. 
 
 Resolutions, i. 177 ; ii. 70. 
 
 Rights of the Jury, iii. 445, 446. 
 
 Secretary, Treasurer, &c., ii. 471, 472. 
 SWAIN, ALANSON. 
 
 Leave of Absence, Vol. iii. 603. 
 
 TABER, ISAAC C. 
 
 Leave of Absence, Vol. ii. 568. 
 TAFT, ARNOLD. 
 
 Leave of Absence, Vol. i. 234, 614. 
 Tax Qualification. Vol. i. 94, 546. 
 TAYLOR, RALPH. 
 
 Leave of Absence, Vol. iii. 337. 
 THOMAS, JOHN W. 
 
 Berlin Vacancy, Vol. i. 49. 
 
 Encouragement of Literature, iii. 623, 625. 
 
 Judiciary, iii. 234. 
 
 Loan of the State Credit, iii. 24. 
 
 Motions, i. 23, 44, 103; ii. 330; iii. 24, 234, 623. 
 
 Orders, i. 48. 
 
 Sectarian Schools, (see Encouragement of Lit 
 erature.) 
 THOMPSON, CHARLES. 
 
 Adjournment, Vol. i. 297, 487, 558 ; iii. 520, 521. 
 
 Assignment of Seats, i. 130. 
 
 Closing Debate, i. 612, 652 ; ii. 34, 35, 243. 
 
 Death of Mr. Gourgas, ii. 744. 
 
 House of Representatives, ii. 243, 244, 247, 379- 
 383,420. 
 
 Judiciary, 
 
 Justices of the Peace, iii. 370. 
 
 Loan of the State Credit, iii. 2, 3. 
 
 Messenger, i. 53. 
 
 Memorials, i. 33. 
 
 Motions, i. 66, 67, 130, 190, 218, 234, 249, . 97 34% 
 341, 421, 558, 612, 651, 653, 701, 875 ; u. 248, 
 330, 381, 567, 683, 744 ; iii. 166. 
 
 New Towns, iii. 166, 244. 
 
 Orders, i. 33, 92, 189. 
 
 Organization, i. 10, 11. 
 
 Pay Roll, ii. 332. 
 
 Plan of Representation, ii. 217, 218, 248. 
 
 Place of Meeting, i. 71, 72. 
 
 Qualifications of Voters, i. 698, 699. 
 
 Rules and Orders, i. 54, 58-60. 
 
 Secretary, Treasurer, &c., i. 706, 760. 
 
 Time of Meeting, i. 797. 
 TILTON, HORATIO W. 
 
 Leave of Absence, Vol. iii. 603. 
 TOWER, EPHRAIM. 
 
 Petitions, Vol. i. 297. 
 
 Towns, Incorporation of. Vol. iii. 77-86, 240-247. 
 Towns, Population of, &c. Vol. i. 92, 189. 
 Towns, List of. Vol. i. 178, 189, 340. 
 TRAIN, CHARLES R. 
 
 Berlin Vacancy, Vol. i. 114-116, 127. 
 
 Council, ii. 113; iii. 269, 270. 
 
 Distribution of the Amended Constitution to th* 
 People, iii. 627. 
 
 Judiciary, iii. 627-631. 
 
 Justices of the Peace, iii. 371. 
 
 Lieutenant-Governor, i. 34-5, 346, 352. 
 
 Motions, i. 103; iii. 145, 371, 577, 629. 
 
 Orders, i. 122. 
 
 Plurality, i. 337-310, 373, 422 ; iii. 145, 154, 155, 
 547, 554, 563, 564, 567-569, 577, 578. 
 
 Rights of the Jury, iii. 500, 502. 
 TURNER, DAVID. 
 
 Leave of Absence, Vol. iii. 603. 
 TYLER, WILLIAM. 
 
 Adjournment, Vol. i. 449, 558. 
 
 Appendix to Report of Debates, iii. 219, 265. 
 
 Closing Debate, i. 526. 
 
 Encouragement of Literature, ii. 483, 543. 
 
 Governor, i. 342. 
 
 Lieutenant-Governor, i. 542. 
 
 Loan of the State Credit, ii. 313. 
 
 Motions, ii. 332 ; iii. 265. 
 
 Orders, i. 590 ; iii. 219. 
 
 Pay Roll, ii. 329. 
 
 Qualifications of Voters, i. 551, 553, 554, 672-674. 
 
 UNDERWOOD, ORISON. 
 
 Distribution of Debates, Vol. iii. 638, 723. 
 
 House of Representatives, i. 448. 
 
 Judiciary, iii. 210. 
 
 Militia, ii. 103, 104. 
 
 Motions, i. 406, 448, 777; ii. 287, 352; iii. 101. 
 
 Question of Order, iii. 643. 
 
 Resolutions, i. 44S. 
 University at Cambridge. Vol. i. 122, 143, 159, 188 ; 
 
 ii. 724-726 ; iii. 27-49, 75-77, 247-264, 699. 
 UPHAM, CHARLES W. 
 
 Encouragement of Literature, Vol. ii. 549, 550. 
 
1853.] 
 
 INDEX. 
 
 795 
 
 MEMBERS AXD SUBJECTS. 
 
 House of Representatives, ii. 173-183. 
 UPTON, GEORGE B. 
 
 Amendments and Enrolment, Vol. iii. 299-302. 
 
 Berlin Vacancy, i. 85, 86. 
 
 Closing Debate, i. 651. 
 
 Council, iii. 273. 
 
 Council and Lieutenant-Governor, i. 459-462, 507, 
 
 535, 540. 
 
 Distribution of Debates, iii. 640, 641. 
 Frame of Government, i. 803, 957, 958. 
 House of Representatives, ii. 317-321, 338; iii. 
 
 605-607. 
 
 Judiciary, iii. 211. 
 Mode of Submitting the Amended Constitution 
 
 to the People, iii. 664. 
 Motions, i. 626, 627 ; iii. 131. 
 New Towns, iii. 85, 246. 
 Oaths and Subscriptions, ii. 486, 487. 
 Pardoning Power, i. 985, 986. 
 Place of Meeting,!. 38, 39. 
 Plurality, iii. 131, 556, 557, 569. 
 Qualifications of Voters, i. 625, 665, 666, 690. 
 Secretary, Treasurer, &c., i. 764, 765, 767-770. 
 
 Vacancy, Berlin. Vol. i. 44-50, 72-87, 90-92, 94- 
 99, 103, 114-121, 124-141, 144-159, 162-188, 340. 
 
 Vacancy, Boston. Vol. i. 92, 143. 
 
 Vacancy, Concord. Vol. ii. 792 ; iii. 125. 
 
 Vacancies, General. Vol. i. 49, 72-87, 104. 
 
 VILES, JOEL. 
 
 Plan of Representation, Vol. ii. 384. 
 
 Viva Voce Vote. Vol. i. 7, 160, 425, 513. 
 
 Vote, on Act calling Convention, iii. 732. 
 
 on Constitutional Provisions, iii. 756. 
 
 Votes, Counting and Recording of. Vol. iii. 318, 
 387, 388. 
 
 Voters, List of. Vol. i. 708 ; iii. 694. 
 
 Voters, Qualifications of. Vol. i. 104, 114, 188, 
 189, 204, 341, 359, 546-703, 734-758, 971 ; ii. 32, 
 117-120, 251-253, 272-278, 287, 489-522, 656, 
 657, 726-738, 744-756, 776, 777 ; iii. 27, 634-697. 
 
 WALCOTT, SAMUEL B. 
 
 Berlin Vacancy, Vol. i. 98, 99. 
 
 Council and Lieutenant-Governor, i. 475-478. 
 
 Secretary, Treasurer, &c., i. 778. 
 WALES, BRADFORD L. 
 
 Declaration of Rights, Vol. iii. 483. 
 
 Motions, iii. 483. 
 "WALLACE, FREDERICK T. 
 
 Orders, Vol. i. 122. 
 
 Senate, i. 236-208. 
 WALKER, AM AS A.. 
 
 Adjournment, Vol. i. 50, 202, 233. 
 
 Amendments and Enrolment, ii. 563. 
 
 Banking, iii. 330-334. 
 
 Census, ii. 387-389. 
 
 Closing Debate, i. 652, 653. 
 
 Council and Lieutenant-Governor, i. 473, 474, 
 509, 522, 523, 533. 
 
 Corporations, iii. 59-62. 
 
 Death of Mr. Gourgas, ii. 740. 
 
 Distribution of the Amended Constitution, &c., 
 iii. 436, 630, 637, 638, 648. 
 
 Distribution of the Report of Debates, iii. 638, 
 
 648, 722. 
 
 Encouragement of Literature, ii. 522, 549. 
 Frame of Government, i. 788. 
 House of Representatives, i. 899-901; ii. 58, 207, 
 
 217, 399, 400, 427. 
 Judiciary, iii. 385, 634. 
 Justices of the Peace, i. iii. 365, 397. 
 Lieutenant-Governor, i. (see Council.) 
 Limiting Debate, iii. 2. 
 Militia, ii. 18-20, 24, 83, 84. 
 Motions, i. 235, 627, 651 ; ii. 287, 489, 656, 726, 
 
 743, 906 ; iii. 290, 365, 397, 463, 556, 630, 637, 
 
 722, 728. 
 
 Oaths and Subscriptions, ii. 485,486. 
 Orders, i. 12, 178 ; iii. 630, 638. 
 Place of Meeting, i. 12, 14, 22, 23, 25, 26, 43, 66. 
 Plurality, iii. 108, 110, 111, 283, 234, 562, 563. 
 Qualifications of Voters, ii. 726, 753, 754. 
 Reports from Committees, i. 14 ; ii. 32 ; iii 647, 
 
 648. 
 
 Rights of the Jury, iii. 463. 
 WARD, ANDREW II. 
 Declination, Vol. i, 93. 
 Encouragement of Literature, iii. 620. 
 Imprisonment for Debt, iii. 407. 
 Judiciary, iii. 237. 
 Motions, i. 249 ; ii. 489 ; iii. 407. 
 Oaths and Subscriptions, ii. 489. 
 Plurality, i. 250, 251. 
 
 Sectarian Schools, (see Encouragement of Lit 
 erature.) 
 WALKER, SAMUEL. 
 
 Justices of the Peace, i. 493. 
 WARNER, MARSHAL. 
 
 Leave of Absence, Vol. iii. 603. 
 WARNER, SAMUEL, JR. 
 Declination, Vol. i. 273. 
 Judiciary, ii. 686, 687, 695, 696. 
 Motions, i. 341, 906 ; ii. 483, 686. 
 Secretary, Treasurer, &c., i. 906. 
 WATERS, ASA H. 
 
 Berlin Vacancy, Vol. i. 49. 
 
 Corporations, iii. 174-179. 
 
 House of Representatives, ii. 236, 237. 
 
 Justices of the Peace, i. 490-492 ; iii. 392-394. 
 
 Mode of Submitting the Amended Constitution 
 
 to the People, iii. 694, 695. 
 Motions, ii. 117; iii. 543. 
 Orders, i. 203, 339. 
 Printing, i. 233. 
 WEEKS, CYRUS. 
 
 House of Representatives, Vol. ii. 375, 376. 
 Loan of the State Credit, ii. 309, 665. 
 Motions, i. 445 ; ii. 278, 466, 665 ; iii. 569. 
 Petitions, i. 949. 
 Printing, iii. 721. 
 WESTON, GERSHOM B. 
 Adjournment, Vol. i. 558, 966. 
 Closing Debate, ii. 245 ; iii. 360, 361, 365. 
 House of Representatives, ii. 245, 314-317. 
 Justices of the Peace, iii. 341, 361, 365, 370, 
 
 371. 
 
796 
 
 INDEX. 
 
 [1853, 
 
 MEMBERS AND SUBJECTS. 
 
 Motions, i. 51, 535, 541, 807, 891 ; ii. 523 ; iii. 
 40, 351, 361, 363, 384. 
 
 Qualifications of Voters, i. 664, 665, 679, 683. 
 
 Question of Order, iii. 553, 554. 
 
 Secretary, Treasurer, &c., i. 759, 764. 
 
 Time and Place of Meeting, i. 51. 
 
 University at Cambridge, iii. 40. 
 WHEELER, WILLIAM F. 
 
 Adjournment, Vol. ii. 220. 
 
 Amendments and Enrolment, ii. 715, 716. 
 
 Closing Debate, ii. 2i5. 
 
 Governor, i. 341. 
 
 House of Representatives, ii. 420. 
 
 Imprisonment for Debt, iii. 497. 
 
 Judiciary, iii. 237, 238. 
 
 Motions, ii. 220 ; iii. 127, 143, 237, 416, 497. 
 
 Orders, i. 160 ; ii. 362, 383. 
 
 Pay Roll, iii. 127. 
 
 Senators in Congress, i. 384, 385. 
 WHITE, GEORGK. 
 
 Encouragement of Literature. Vol. iii. 614, 626. 
 
 House of Representatives, ii. 427-432, 657, 683. 
 
 Motions, ii. 247, 657, 683 ; iii. 474. 
 
 Plan of Representation, i. 862. 
 
 Plurality, i. 398-400. 
 
 Sectarian Schools, (see Encouragement of Lit 
 erature.) 
 WHITiNEY, DANIEL S. 
 
 Adjournment, Vol. i. 448, 487. 
 
 Appointing Members of Legislature to Office, iii. 
 635. 
 
 Closing Debate, i. 613 ; ii. 36. 
 
 Constitutional Conventions, iii. 533. 
 
 Council, i. 506; iii. 268. 
 
 Declaration of Rights, iii. 423, 424. 
 
 Distribution of Debates, iii. 641. 
 
 Frame of Government, i. 803. 
 
 Governor, i. 334. 
 
 House of Representatives, ii. 22t ; iii. 576, 577. 
 
 Justices of the Peace, iii. 371, 401. 
 
 Limiting Debate, iii. 265. 
 
 Loan of State Credit, ii. 312, 314. 
 
 Militia, ii. 63-65, 71, 72, 74, 75, 250, 251. 
 
 Mode of Submitting the Amended Constitution 
 to the People, iii. 690, 717. 
 
 Motions, ii. 314, 701. 
 
 Oaths and Subscriptions, i. 371, 372 ; ii. 489, 554. 
 
 Orders, i. 731, 842. 
 
 Place of Meeting, i. 51. 70. 
 
 Pardoning Power, i. 977, 978. 
 
 Qualifications of Voters,!. 572, 573: ii. 701, 735- 
 
 738. 
 WHITNEY, JAMCS S. 
 
 Adjournment, Vol. i. 297 ; ii. 218, 219. 
 
 Amendments and Enrolment, ii. 721, 722. 
 
 Berlin Vacancy, i. 48. 
 
 Closing Debate, i. 526, 527. 
 
 Corporations, ii. 122-126, 254, 256-259, 264, 265, 
 269, 272 ; iii. 50, 63-72, 179. 
 
 Constitutional Conventions, iii. 525, 525. 
 
 Encouragement of Literature, iii. 622, 623. 
 
 House of Representatives, ii. 207-209, 466; iii. 
 596-^98. 
 
 Judiciary, iii. 203, 204, 234. 
 
 Motions, i. 526, 807 ; ii. 266, 272, 466, 657, 683, 
 
 756; iii. 50, 234,540. 
 Orders, i. 144. 
 
 Plurality, iii. 141-144, 161-164, 558-560,563. 
 Question of Order, iii. 54), 541. 
 Quorum of the House, ii. 837, 838. 
 Reports, i. 425, 426. 
 Rules and Orders, i. 58. 
 Secretary, Treasurer, &c., i. 722, 723, 725-727, 
 
 768, 770. 
 
 Sectarian Schools, (see Encouragement of Lit 
 erature.) 
 WILKINS, JOHN H. 
 
 Boston Vacancy, Vol. i. 92. 
 
 Census, ii. 388, 389. 
 
 Frame of Government, i. 798. 
 
 House of Representatives, ii. 268, 322. 
 
 Lieutenant-Governor, i. 345, 346, 349, 515, 516, 
 
 519,535. 
 
 Loan of the State Credit, iii. 7-10. 
 Militia, i. 992. 
 Motions, i. 340, 341, 516. 
 Secretary, Treasurer, &c., i. 724, 725, 727, 728, 
 
 761-766, 768. 
 WILKINSON, EZRA. 
 House of Representatives, Vol. ii. 322-324. 
 Mode of Submitting the Amended Constitution 
 
 to the People, iii. 673, 709. 
 Motions, i. 539 ; ii. 510 ; iii. 709. 
 Qualifications of Voters, ii. 510, 516, 520, 521. 
 WILLIAMS, HENRY. 
 Choice of Secretary, Vol. i. 7, 8. 
 Mode of Submitting the Amended Constitution 
 
 to the People, ia. 705, 706. 
 Motions, iii. 705. 
 Orders, i. 974. 
 
 Qualifications of Voters, i. 547-551. 
 WILSON, HENRY. 
 Adjournment, Vol. i. 12, 214, 215 272, 297,340; 
 
 ii. 219-221 ; iii. 646. 
 Amendments and Enrolment, ii. 716 ; iii. 123- 
 
 125, 472. 
 
 Berlin Vacancy, i. 47, 48, 177-184. 
 Chosen President/>ro temporc of Convention, iii. 
 
 219. 
 
 Closing Debate, i. 488, 489 ; ii. 34, 38, 38, 436. 
 Commonwealth of Massachusetts, i. 344. 
 Corporations, ii. 258-260, 262. 
 Council and Lieutenant-Governor, i. 478. 
 Constitutional Conventions, iii. 472, 524, 527, 528. 
 Death of Mr. Gourgas, ii. 738, 739. 
 Declaration of Rights, iii. 375, 382, 383, 419, 420, 
 
 431, 474, 479, 480. 
 
 Encouragement of Literature, ii. 522, 545. 
 Final Adjournment, iii. 728. 
 Frame of Government, i. 7^3-786, 792, 793. 
 Governor, i. 319, 322-324, 336, 337. 
 Habeas Corpus, (see Declaration of Rights.) 
 House of Representatives, ii. 420, 422, 424, 432, 
 
 433; iii. 473, 580-583, 599-631, 609, 613. 
 Imprisonment for Debt, iii. 489, 497. 
 Instructing Committees, i. 758 ; ii. 1. 
 
1853.] 
 
 INDEX. 
 
 797 
 
 MEMBERS AND SUBJECTS. 
 
 Judiciary, ii. 684, 635, 701-707, 768. 
 Lieutenant-Governor, i. 345, 348, 349, 351, 352, 
 
 516,517,537-540. 
 Loan of the State Credit, ii. 235-297, 3D7, 398 ; 
 
 iii. 14, 28. 
 Militia, i. 993 ; ii. 3, 17, 18, 28, 32, 66-68, 72-76, 
 
 78-83,93,93, 114. 
 Mode of Submitting the Amended Constitution 
 
 to the People, iii. 683, 705. 
 Motions.!. 11,12,33,69, 214.214,235.249,344,349, 
 
 372, 497, 409, 527, 543, 558, 629, 733, 724, 748, 
 
 758, 783,963.973,974,986; ii. 2, 33, 71, 112, 
 
 114, 115, 117, 121, 122, 126 251, 2-53, 272, 281, 
 
 287, 383-385, 392. 468, 482, 483, 489, 522, 
 
 542, 543, 556, 569, 657,703; iii. 53, 77, 83, 125, 
 
 148, 150, 375, 383, 437, 463, 471, 472, 497, 535, 
 
 538, 577, 639, 613, 646, 647. 
 New Towns, iii. 77. 78. 
 Oaths and Subscriptions, ii. 485, 486, 488, 489, 
 
 553-556. 
 Orders, i. 14, 53, 92, 93, 103, 143, 163, 203, 271, 
 
 349, 383, 445, 508, 731, 891 ; ii. 162, 792 ; iii. 
 
 100. 
 
 Pardoning Power, i. 973. 
 Pay Roll, iii. 12-5-129, 646. 
 Petitions, i. 114, 159. 
 Place of Meeting, i. 16, 25, 37, 38, 43, 44, 65, 122, 
 
 123. 
 Plurality, i. 293, 310-313, 414, 415, 422, 431, 432; 
 
 iii. 115, 116, 145, 150, 151, 158, 534, 535, 547, 
 
 577. 
 
 Population and Representation, i. 446, 447. 
 Qualifications of Voters, i. 581-587, 639, 648, 739- 
 
 741. 
 
 Question of Order, iii. 538, 540, 643, 645. 
 Reports from Committees, i. 35, 36. 
 Resignation as Delegate for Berlin, i. 13. 
 Resolutions, i. 10-12, 337, 514; ii. 71. 
 Rights of the Jury, iii. 437. 
 Rules and Orders, i. 60. 
 
 Senate, i. 122, 123, 193, 191, 193, 196, 197, 211. 
 Secretary, Treasurer, &c., i. 707, 708, 724, 729, 
 
 767; ii. 468,529-531, 542, 543. 
 Special Assignment, ii. 556, 558, 559. 
 University at Cambridge, iii. 43, 76, 247, 248, 254- 
 
 262. 
 
 "WILSON, MILO. 
 
 Loan of the State Credit, Vol. ii. 116. 
 New Towns, iii. 83. 
 Wompn, Married, Property of. Vol. i. 493; ii. 384, 
 
 385. 
 
 WOOD, NATHANIEL. 
 
 Berlin Vacancy, Vol. i. 49. 
 
 Closing Debate, iii. 100, 101. 
 
 Encouragement of Literature, ii. 522; iii. 616, 
 617, 624. 
 
 House of Representatives, i. 926-930. 
 
 Limitation of Debate, iii. 364, 365. 
 
 Motions, i. 53, 937 ; ii. 635 ; iii. 629. 
 
 Pardoning Po*er, i. 934, 985. 
 
 Place of Meeting, i. 23, 24. 
 
 Qualifications of Voters, ii. 508-510. 
 
 Secretary, Treasurer, &c., ii. 523-525. 
 
 Sectarian Schools, (see Encouragement of Lit 
 erature.) 
 WOOD, WILLIAM H. 
 
 House of Representatives, Vol. i. 858-861 ; ii. 576. 
 
 Judiciary, ii. 697-699, 712-714. 
 WRIGHT, EZEKIEL. 
 
 Petitions, Vol. ii. 2. 
 
 Yeas and Nays on Form of Notice to town of Ber 
 lin, Vol. i. 185-187. 
 
 on the Senate, i. 232. 
 
 on the Governor, i. 342-344. 
 
 on the Council, i. 532, 533. 
 
 on Qualifications of Voters, i. 680-682, 701- 
 703, 744-746. 
 
 on Secretary, Treasurer, &c., i. 778-780, (gee 
 Appendix, iii. 769.) 
 
 on the General Court, i. 964-966. 
 
 on the Pay Roll, ii. 333-332. 
 
 on the House of Representatives, ii. 420422, 
 456-458, 464-468, 633-637. 
 
 on Loan of the State Credit, ii. 681-683. 
 
 on the Judiciary, ii. 828-832. 
 
 on Loan of the State Credit, iii. 25, 26. 
 
 on General Laws for Corporations, iii. 73-7-5. 
 
 on Plurality, iii. 134-136, 149, 150, 284-289, 
 578, 579, (see Appendix, iii. 771.) 
 
 on the Judiciary, iii. 233-239. 
 
 on the University at Cambridge, iii. 263, 264. 
 
 on Banking, iii. 359, 363. 
 
 on the Bill of Rights, iii. 431-433, 463-465. 
 
 on Amendments to Constitution, iii. 495, 496, 
 521-523. 
 
 on Rights of the Jury, iii. 515-517. 
 
 on a Question of Order, iii. 543-545. 
 
 on Adjournment, iii. 548, 549. 
 
 on the House of Representatives, iii. 611, 
 612, 678, 679. 
 
 on Revision, iii. 709-711. 
 
 on Proposition Number One, iii. 711-713. 
 
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