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THE COUNCIL AND LIEUTENANT-GOVERNOR. – GOU'RGAS – UPTOX.
ham did not allude to, but which ought to be honesty of many men than one man, and under not adjourned at any particular time by the ('onstated; and that is, that although the governor no circumstances should I consider it wise to give stitution. The governor keeps the Council tomay not adopt the recommendation of the Coun- a single individual plenary jurisdiction in the set- gether during the sittings of the legislature. cil, and pardon the criminal, he cannot grant a tlement of accounts against the State.
Such has been the action and practice of the expardon without the recommendation of the I had intended, Mr. Chairman, to prevent my ecutive department of the government in relation Council.
views on the proposition relative to the Council to the Council. Therefore the longer the session If there had been some controlling or restrain- and Lieutenant-Governor, now before us, much of the legi-lature, the greater the expense of the ing power, of this kind, in the States of Pennsyl- | more fully, but the gentleman for Abington, (Mr. Council. I think the expenses may be fairly vania, and New York, the instances of the abuse Keres, ) has to a great extent anticipated me, and set, for a series of years, at a sum not exceeding of the pardoning power in those States, which has submitted, more ably than I could hope to do, $3,500 per year, and therefore, looking to the have been alluded to in debate, would probably many considerations adverse to the propositions future, that would be the maximum of expense never have occurred. It is no reply to the argu- which appear to me to have weight. It would which would be charged to the ('ommonwealth. ment founded upon such abuses of the pardon- be useless to speat, and I content my elf with Well, Sir, the Report goes on, and among the ing power, to say, that the people of those States, the few remarks I have made, decliring my own
various duties assigned to the Council, which it in refusing to re-elect to office Governors Porter conviction that both the abolition of the Council purposes to di-tribute to other departments, is and Young, thus passed a judgment of condem- and the transfer of the Lieutenant-Governor from that of exercising the pardoning power. The nation upon their conduct in this respect. Not the Council to the Senate is inexpedient and un- chairman of the Committee, (Mr. Hallett,) prefers at all. Did this act of the people return to their advisalle.
to leave the subject of pardous entirely with the cells and chains, criminals who had violated their Mr. UPTOX, of Bo-ton. The Committee governor. It was my fortune some two or three laws by the commission of the most atrocious who have made this Report will probably want years since to be in the company of the executive acts, and who had no claim of any kind to the to hear, carly in the cour of debate, the reasons of a neighboring State, in which there was no executive clemency: Did this repair the wrong and arguments which will be advanced against it. Council-the gti at State of New York. The inflicted upon the community by a corrupt exer- I, therefore, rise at this time for the purpose of governor of that State, after he had been in office cise of the pardoning power?
stating some strong reasons, which I hope will some six months, stated that he then had in his And now I pass to the opinion expressed by commend themselves to that Committee, why the hands papers upon the subject of pardons, which, the gentleman for Wilbraham, as to the services Report of the ('ommittee ought not to pass.
if he should use all of his unocupied time for the of the Council in the examination of accounts, I believe, Sir, that the stigma--if I may so
remainder of the two years for which he was and here my experience is again entirely and call it—which has been put upon the Council of elected, he would barely be able to read through. wholly at variance with his. In 1849 the legisla- Massachusetts for a number of years past, has
Now, if I understand the chairman of the ture established the office of auditor of accounts, grown out of the feeling which has been engen
Committee, he proposes to give this power of parand by this Act it is required of that officer that dered by the legislature, that the Council is an
don entirely to the governor, and he relies upon he should examine all accounts against the Cominefficient body. Every one upon this floor
the governor's having time, in addition to all monwealth, with specified exceptions, and certify knows very well that the members of the Coun
other duties imposed upon him, to consider the in each case the amount due in his judgment up cil have been stigmatised as belonging to the hos- various applications that will be made to him. I to the governor, who may draw a warrant for the pital of invalids. If a man was blind, or lame,
confess, Sir, that I agree with the gentleman same as provided in the Constitution; and that or had weak lungs, or weak limbs, it was said by
for Abington, (Mr. Keyes,) in regard to the when a warrant is drawn, the secretary shall serve his political friends, let us put him into the ('oun- Report of the Committee, or in regard to the exnotice of the same upon the auditor, stating the
cil. That has been the ordinary course, and from planation of that Report, so far as the chairman amount and purport of the same. The phrase- this fact and that the proceedings of the Council
was concerned, upon the subject of pardons. I ology of this act entirely precludes the idea that have been transacted in private, not one half of
should not select for my council, upon this subwarrants are to be drawn for any amount the
the citizens of the Commonwealth of Massachu- ject of pardons, an individual who had ever been auditor may please to certify to, even if there was
setts-unless it has happened to them to have a prosecuting officer. Their milk of human no constitutional obstacle in the way of such a been councillors-are aware of the labor performed
kindness, if I may so express myself, has too procedure. All accounts are examined by the in that chamber.
much of the rennet in it. I am glad that in this auditor, and from his office they go to the Council- The few remarks I shall make, will be princi- State we have this power, and I hope this Conchamber, and here the warrant that is to draw
pally in answer to the Report of the Committee, vention will never propose to take from the peothe money from the treasury is never passed until which goes first into the matter of expenditure. ple of this Commonwealth, the power of going all claims in relation to which a question can The Committee has brought forward, in the Re- to some proper authority, above all courts, for the arise, have been referred to the Committee on
port, the statement that the cost of maintaining the purpose of correcting any sentences of those Accounts, and have been investigated and report- Council of Massachusetts, for the last four years, courts which may be found to be incorrect. ed upon. I remember very well one instance in has been five thousand two hundred and sixty- The little experience I have had upon matters which a certain account was sent by the auditor three dollars per annum, and for that reason the connected with the Council, has learned me one before he passed upon it to the Council requesting Council should be abolished and the expense thing, that however honest courts may be, there instructions; it was made a matter of examina- saved.
is a great difference in the sentences which are tion, and without going into particulars further, I Now, in answer to that argument, I may say,
pronounced for the same class of offences. For can state, that the result was a saving to the State that, during the last three years, the sessions of the instance, you will find that one individual, in the of a considerable amount. But the instances in legislature have been long ones ; a result which has county of Essex, who has committed a crime, which accounts that have passed the auditor and grown out of the state of parties, and that, therefore, being defended by able counsel, and surrounded been referred to the Committee on Accounts, and this $5,263 per year is not a fair statement of the
by friends, will meet with a sentence comparawhich have been reported by them back to the cost of maintaining the Council. For the nine- tively light. Another person, in a neighboring Council, with the recommendation of more or teen years preceding, the cost of the Council has county, without any able counsel to defend him, less disallowance, are numerous. I am fully sat- averaged about $3,300 per year, and I believe I or friends to countenance him, will, for the same isfied, notwithstanding what has been said to the may safely state that for a series of years, the cost offence, suffer a much heavier punishment. Alcontrary, that as it regards this matter of accounts, of the Council will average only about $3,000 though in such cases no injustice was intended the service rendered by the Council is essentially per annum, and with the ordinary length of the to be done, yet so far as the administration of useful, and that no one man should ever be in- sessions of the legislature, that sum would be the law in this Commonwealth is concerned, there is trusted with undivided and unlimited power to extreme amount which would be levied upon the an inequality of punishment for the same crimes, determine claims against the government. And good citizens of Massachusetts for the support of and an inequality, which occasionally requires a yet this is the argument of the gentleman for the Council.
remedy by some power above the courts. Wilbraham. Because we have an auditor of ac- There is another thing, growing out of these In my opinion, from what I have seen, you counts, he says, we have no need of a power to long sessions, which has increased the expense of have always had a Council, with the Lieutenantrevise his acts. I do not think go. I believe it is the Council. The governor can adjourn the Governor, elected by the people of the Commonsafer to rely upon the judgment and trust to the Council whenever he pleases, but the Council is wealth of Massachusetts, at its head, which have THE COUNCIL AND LIEUTENANT-GOVERNOR.- UPTON - DURGIN.
been faithful in the discharge of their duties. So far as the mere matter of compensation is concerned, if the Council of this Commonwealth should take one man out from imprisonment, a single day sooner than he otherwise would be released, who was unlawfully in that condition, I say the whole money which is expended for this Council, is well expended.
I hope, therefore, that so far as this Council is concerned, that the pardoning power will not be given to the governor, but that it will be retained by him in connection with the Council, as it has always existed.
There are certain other questions connected with this pardoning power. The gentleman who opened this debate, the chairman of the Committee, (Mr. IIallett,) said that democratic Virginia, when she revised her Constitution, a few years ago, abolished her Council. Well, I suppose he intended to be understood to say that her's was a model Constitution, as he said that New Hampshire, which retained the Council, had the worst Constitution. There are other principles contained in this model Coustitution (of Virginia) which we may hereafter have occasion to call in question, and I hope we shall have the chairman of the Committee here to defend them.
So far, however, as any comparison can be drawn between this and other States, they are not parallel. Here in Massachusetts we have a large seaboard, and numerous large towns and cities. We have, therefore, more crime committed in this State than they have in any other, where the towns are small and inland, and where there is no seaboard. There is, therefore, the greater necessity of having some one to advise with the governor in relation to pardons.
The chairman of the Committee took occasion to say that the president of the United States had the whole control of the matter of pardons, and that the whole power of the government of the United States, in that respect, was vested in him. Well, Sir, how long should we, in Massachusetts, eonsent to live in a community where an individual, convicted of crimes which he had committed, or was supposed to have committed, had no greater power of reaching the ear of the pardoning authority, than the citizens of the United States have in reaching the pardoning power of the president? I need not say that the whole amount of crime committed against the United States, so far as sentences of courts are concerned, falls far short of that committed against the laws of Massachusetts. The distance of the president from the various States, deprives the individual, in many instances, however unjust his punishment may be, from obtaining redress at his hands. Therefore it is no form or shadow of an argument, that because there are individuals in the United States who cannot reach the pardoning power of the president, and get redress for their wrongs, therefore there should not be a safe and prudent depository of this power, in Massachusetts, to which individuals can resort.
It is proposed, in the distribution of the powers of government, which are now bestowed upon the Council, so far as the expenses are concerned, to give them to the auditor. Well, Sir, the auditor has that account now, and there is no warrant drawn from the treasury that is not drawn by the auditor. But before it is drawn it is sent up to the Council-chamber, a committee examine the
law by which it is authorized, and certify that the amount is correctly ascertained, and that the order is properly drawn. And there is no other way in which warrants can be drawn, coming from the various commissions scattered throughout the Commonwealth. They involve a large amount of money. Take, for instance, the commission authorized during the present year for the enlargement in the State House, the commission for building the State Almshouses, or for building the State Lunatic Asylum. All these amounts first come from the auditor's office. They are then sent to the Council-chamber where they are examined by the committee on accounts ; the various acts and laws under which the expenditures are authorized are examined, and they are then referred to the governor who issues the warrants. But it is now proposed to leave this matter entirely to the auditor. It is impossible for the governor to examine all the accounts which are presented to him, and they must be left to t'e auditor alone. Sir, when you make this provision, as proposed by your Committee, you take away from the expenditure of the public money, the most important check.
It seems to me, that considering the great amount of expenditure and the small pittance of $3,500– for I hold that to be the maximum expenditure which this Council involves it is hardly worth taking into consideration. For $3,500 nine pretty good men in the Commonwealth of Massachusetts are induced, from the honor in part, I have no doubt, to go into the Council-chamber. They go for only the ordinary compensation of $2 per day, and their labors are obtained as cheap, to say the least, as those of any officers in the Commonwealth. Sir, I tell this Committee that you cannot go into the Commonwealth of Massachusetts nor out of it, and get the same labor which is performed by the Council for ten times that amount. There is not a commission in the Commonwealth which would not draw more money three times over, out of your treasury for the performance of this labor than your councillors now receive.
There are a number of collateral duties which the Council are practically required to perform which are not numbered in the Report and which I might incidentally mention but I will not take up the time of the Committee with it.
But there is another duty of the Council which I thought the gentleman for Wilbraham spoke rather slightly of, but which it seems to me is not without considerable importance. I refer to the confirmation of appointments. I understood the gentleman in his argument yesterday to say that the executive had made some good judicial appointinents, but all that was to go the credit of the executive. The Council had nothing to do with that. It occurred to me that if his argument was good and that the Council had nothing to do with the appointment that therefore you had better leave them entirely with the executive. Now, with all due deference to the gentleman, and with all due deference to any executive who ever sat in any Council-chamber, my opinion is that the Council do have something to do with the appointments. I hold that the Council are a part of the government and so far as my own opinion is concerned, ' believe that the governor should have the Council of his own political way of thinking. I hold the whole people of the Commonwealth of Massachusetts should be represented
in this Council and that when these matters are discussed in the various parts of the Commonwealth, the reasons for the various appointments should be given, and the governor should have the advantage of them There are a great many subjects which come up in Council which those who have ever sat there are familiar with, connected with appointments. These matters have been particularly prominent during the last year, I suppose, and also during the present year. I can speak for the present year at least, and can say that this Council have been very considerably occupied as a committee of correspondence to answer the letters of office seekers and of those who desire to be retained in office. I do not know how many letters they have received and answered from persons who are especially anxious to know whether there is any chance of their retaining their situations.
Mr. Chairman, this power of confirming appointments had better be kept with the Council than left to the Senate. The Senate is a part of the legislative department of the government, and I should doubt the expediency of so changing matters as that any member of that legislative department should be marked out in their legislation as one who may probably get office, and who can be confirmed by that body if he does. It seems to me t! at you had better keep the confirmation of appointments with the Council, and keep that matter clear and clean from the legislative branch of your government.
I have thus stated, in a very few words, my reasons for hoping that the Report of the Committee will not pass. If it is desirable to take away any of the duties from the Council which at present belong to them, I shall not object, but I hope the advisory pardoning power, of all others, will certainly be kept with the Council and with none other.
Mr. DURGIN, of Wilmington. Mr. Chairman: I have, for the last two years, taken some pains to examine the criminal calendar of Massachusetts, and from what I have seen, I have come to the conclusion that if I were absolutely guilty of any crime, I know of no State in the Union or any other place in the world where I should rather be tried and condemned than in old Massachusetts. And why? Because I have so high an opinion of her judiciary, of its far-sightedness, and above all, because of the high character of the priests of justice who reside there. But, on the other hand, if the circumstances were such that I were accused and condemned in my innocence, I know of no l lace where I would rather receive that sentence than in old Massachusetts, innocent though I am. And why? Because she has no Council ? No, Sir; because she has a Council, and because that Council is composed of honest and of high-minded men, who are above party influence, above local intrigue, above logrolling, or anything else which savors of dishonesty.
I happened to have been placed upon the Committee to whom was referred so much of the Constitution as relates to this subject. The gentleman who proposed this amendment is the gentleman at the head of the Committee, and of course should understand the subject better than the rest of us, for you know the brains ought to be in the head. (Laughter.] But I was so fortunate or so unfortunate, whichever you please, as to be placed exactly upon the other end of that Thursday.)
TIIE COUNCIL AND LIEUTENANT-GOVERNOR, &c. - DURGIN – BOUTWELL.
Committee; and I am very sorry to say that I cannot agree in the Report which has been made to the Convention. I did not agree to it in ('ommittee, because I could not see good reason for such agreement. There is one thing in the Report, however, which I very much admire, and that one thing I propose to commend. That is this : I believe it is a perfectly honest Report. I believe they who made it are perfectly honest. But I presume you have all heard the old adage that certain men were too honest to live; too honest to get along well in the world. Well, Sir, the very honesty and frankness which characterize the Report-the very amount of truth which it contains, is the very thing that will kill it dead, in this Convention. The chairman of this ('ommittee has come out and made such an honorable expose of the great and arduous duties which devolve upon this ('ouncil; he has exhibited them in so clear a light, in so tangible a form ; he has prescribed so many duties which are performed by that Council and which can be performed by them so much better than they can be performed by anybody else, that if I had been opposed to retaining them before, I should certainly have become convinced and have gone in favor of it.
Now you will ask, is the Council, as such, needless ? Is it not important that there should be a council, or something, so to speak, just like a council, call it what you choose? Is it not necessary that there should be something somewhere which shall perform the duties of an executive committee : Are not those duties high duties? Are not they important duties which must be performed: The Report of your Committee says they must be performed. Very well; and now the question comes up again, Are not the duties now imposed upon that Council well performed? What says the Report ? What says the chairman of that noble Committee ? (Laughter.] Does he say that the duties are not well performed by that Council, himself having been a member of their honorable body, and other members of the Convention having been members of that honorable body? Is there a voice from any portion of the Commonwealth complaining that these duties have not been faithfully, and, in every respect, well performed : No, Sir, not one. Then, in the language adopted upon a different occasion, I will inquire, “What evil hath IIe done?” When they cried out after him, “ Let Him be crucified,” the great interrogatory was, “ Wiy, what evil hath He done : I find no fault in him.” Sir, I find no fault in the Council. I know that Council is sometimes termed a fifth wheel to a carriage. I know it is by many considered a useless appendage to the government. They say it is a worthless excrescence, so to speak, and that it should be stricken off-something that should not be there; but I do not believe all this.
Now, admitting that these duties are well performed by the Council, the question arises, will they be better, or as well performed, in the manner prescribed in this Report ? That is the question. If they are going to be a great deal better performed, why certainly let us adopt that method ; but that remains to be shown. It is a thing which cannot be shown.
And why? Have you had a trial, and your experiment proved successful? No, Sir. How, then, can you tell : Gentlemen may hope that these duties
will be better performed; they may believe they will be better performed ; but is it not a little prophetic for them to assert it? I very much doubt whether it can be wo.
As to the matter of dollars and cents, I am very much of the opinion that that which costs nothing is of little intrinsic worth. And that government which costs nothing is a poor gov. crnment at best.
I am not in favor of such a sputem of extravagance as will allow persons to put their hands into the pubiic chest and take out what they please at their leisure, and I am very far, too, from endorsing and subscribing to a system which shall partake of miserable par-imony. I do not believe the people of the Commonwealth will thank you for it. They desire a good, safe, and efficient government, one upon which they can at all times rely, and they are willing to pay for it. Will there be less liability to corruption in the plan proposed in your Report than in that which at present exists : All governments, however pure, are liable to corruption, and every safeguard should be thrown around them to prevent anything like dishonesty or injustice being practised by those in power. Now, if you blend two distinct influences together which should forever be kept distinct, I ask, are not the chances for corruption increased tenfold. There is such a thing as going too far, and doing too much. I recollect a certain gentleman, not a thousand miles from the frontier, who was bitterly opposed to touching a certain ('onstitution, but when the people said that they would have it altered, oh yes, he replied; but to those with whom he acted, he said, let us go to work and alter and alter so much, so that every-body will be disgusted with it when we present the bantling before them, and the people will not receive it. The effect of this movement was, that, not a letter or word of it was adopted and sanctioned by the people. I say that we ought to be very careful what steps we take here, and take warning from the example of others, that we do not incorporate such provisions in the Constitution as shall prove fatal to its success before the people. If we desire to avoid anything like corrupt influences being exerted upon the governor, let us retain a Council who shall confer with him and act as a check and balance upon his movements, if he shall be induced to yield to the outside pressure and sympathy which may be brought to bear upon him. The more I have heard upon this subject the more I am confirmed in my opinions, and the stronger have become my connections, that the Council of our good old Commonwealth ought not to be abolished. The great argument that has been made here, is “ down with it.” I did not hear the argument of the gentleman for Wilbraham, (Mr. Hallett,) and therefore, I cannot say but what he presented some strong arguments for the abolition of this system, but the greater part of what I have heard from the other side, has been "away with it.” I sincerely hope, and ardently desire, that the Council which has exerted so beneficial an inflence in the affairs of Massachusetts for so long a period, may still be retained. I do not believe that the people, upon a candid revision or strict review of the question, will support any such proposition, and therefore, I shall be under the necessity of voting against the Report of the Committee, a thing which I dislike to do under any circumstances.
Mr. BOUTWELL, for Berlin. I propose to
offer the following amendment to the resolves of the Committee; viz., to strike out all after the word “Resolved," in the first resolution, and xulutitute two other resolutions, which I will read:
" Ist. Resolred, That eight councillors be elected by the people, in single districts, each district to consist of tive continuous senatorial districts.
"1. Resolned, 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."
Permit me to say, that I should not have moved to amend the resolutions reported by the Committee, had I not concurred generally in the views which have been here presented concerning the importance of the ('ouncil as a department of the government of the Commonwealth. I would not venture to say that it is essential, like the Senate or the House of Representatives; but I think I can fully express the opinion that it is important to the proper determination of the affairs of the State—that its duties are of such a character that they cannot be dispensed with, and must be performed. I know of no body of men existing in the Commonwealth, or which can be constituted by the act of this ('onvention or the legislature of the State, to which its duties can be referred and performed better and with more economy. The ground has been substantially gone over, but I desire to say, in reference to the general question, before I submit some remarks which I intend to make upon the amendments I have proposed, that the duties of the Council in auditing claims against the Commonwealth cannot be so well performed anywhere else.
The CHAIRMAX. The Chair will remark that by an order made in Convention the hour fixed for its adjournment has arrived.
Mr. SCHOULER moved that the Committee rise, report progress, and ask leave to sit again.
The motion was agreed to, and the Committee
The PRESIDENT having resumed the Chair of
THE CONVENTION, The CHAIRMAN reported that the Committee of the Whole had had under consideration the resolves upon the subject of the Council, but had come to no conclusion, and asked leave to sit again.
Leave was granted.
On motion of Mr. MORTON, of Quincy, the Convention then adjourned until 3 o'clock, M.
AFTERNOOX SESSION. The Convention assembled at 3 o'clock, P. M.
Announcement of a Committee. The PRESIDENT announced the following Special Committee, to whom was referred the resolves on the subject of elections by plurality, with accompanying documents :Messrs. Butler, for
THE COUNCIL AND LIEUTENANT-GOVERNOR.- BOUTWELL.
Nantucket. On motion by Vr. XAYSON, of Amesbury, the Convention resolved itself into
COMMITTEE OF THE WHOLE, Mr. Briggs, of Pittsfield in the Chair, and resumed the consideration of the unfinished business, being the resolves relating to the Council, etc., the pending question being on the amendment offered by the gentleman from Berlin, (Mr. Boutwell).
Mr. BOUTWELL addressed the Committee. When the Committee rose this morning, said Mr. Boutwell, I was about to say, that the power which the Council derived from usage and authority to supervise the proceedings of the auditor, are of great value to the State. It is true, as the chairman of the Committee has been pleased to say, that since 1849 the duties of the Council in that particular have been diminished; but those duties which have been transferred from the Coun, cil are principally of a clerical character, that is to say, those claims against the Commonwealth which were made in strict conformity to the law, about which there is no doubt upon the one hand, or discretion to be exercised upon the other, are disposed of at the auditor's desk ; but those claims against the Commonwealth, which proceed from the discretionary power of its agents, charged with the public service, and all those claims about which there may be doubt as to whether they are claims against the Commonwealth, are without exception sent to the Council-board, there to be con idered and adjudged. While I will not proceed to detail the nature or extent of these claims, there are gentlemen upon this floor, who are very well apprised that the people of this Commonwealth would be, if not shocked, exceedingly surprised at a full detail of the statements which might be made in this regard. Here there is a necessity for the existence of a tribunal disposed to deal honestly and justly between the Commonwealth upon the one hand, and persons having elaims against it upon the other; and, also, a necessity for a tribunal disposed in some way or other to take the responsibility devolving upon them. Oftentimes this responsibility which necessarily exists in the administration of public affairs, is very considerable ; for these claims, be it remembered, are often presented by men who hold important positions in society. If you abolish the Council, what is the alternative: You leave the decision of all these contested questions to the auditor of the Commonwealth. It may happen, in the course of years, that men will fill that position who have not the intelligence, the moral honesty, the devotion to the public service, always to act fairly and impartially, and without regard to the effect which their conduct may have upon their own fortunes, nay upon their own subsistence even. But I take it that human nature is not always as it has been foreshadowed, if not absolutely declared by the gentleman for Wilbraham, (Mr. Hallett,) the chairman of this Committee, and that it will not often happen that such men will be placed in that high position.
I say, then, that some tribunal, independent of the power of a single individual, ought to exist as a proper protection and guard for the public
treasury. Where may it be placed so well as in the Council? I take it, whatever may be the suspicions on the one hand, or allegations on the other, in regard to that body of men, that they are at least a fair average of the people of this Commonwealth in all the attributes and qualities which go to make up good citizens. In this matter of responsibility, which has some bearing upon this question, I agree that there should be personal responsibility upon the part of public servants, but it should be responsibility to the people, and it is a mistake in the organic law of any State to make the officers of government directly responsible to the citizen of a State—that is, the State should never, in the person of any man, meet the individual citizen face to face, and especially is it necessary to shield the personal responsibility of men charged with so important a matter as the determination of pecuniary claims against the Commonwealth. Now, then, the Council, responsible as it may be said to be in some respects, is exactly fitted to shield the Commonwealth upon the one hand, and to do justice to individual claims against the State on the other ; for I hold it to be unfortunate that any man, acting for the State, should be compelled, personally and upon his own responsibility, to contest any claim which any other individual may have against the State. The auditor says to the individual claimant upon the public treasury, I have doubts about the propriety of this claim. I will go to the Council and have it audited there. IIe goes there, presents his claim, and the Council come to the result that a certain amount of money should be paid.
And I may say that I think that for a number of years at least, the whole expense of the Council, whatever it may be, three, four, or five thousand dollars, has been met by the deductions which they have made from the charges against the Commonwealth, which, under other circumstances, would probably have been paid.
In addition to this, with regard to the Council, I beg to consider for a single moment the matter of pardons. And I may say in the outset,-and you, Mr. Chairman, can bear witness upon this point,—that whatever may be the trials and difficulties of the executive chair, and however much in the estimation of some men the matter of appointments may be magnified, the administration of the State Prison is, after all, the most delicate duty with which the chief magistrate of this Commonwealth is charged. The State Prison is a community; it contains as convicts five hundred men, for the most part intelligent men; and whoever will study the State Prison, may learn there what perhaps he may not have learned elsewhere, that none are vicious in the extreme, and that no man lives without some redeeming and ennobling traits of character; and it is one of the important duties of the administration of the government of this Commonwealth to bring into action those nobler qualities which these men, although condemned, nevertheless possess. It is not the duty of the chief magistrate to review the decision of the courts. The exercise of the pardoning power on this ground is the exception, and not the general rule. The pardoning power is, I fear, not comprehended as to its importance and its value. It is the element of prison discipline, without which, I take it upon me to say, there is not power enough in the Commonwealth to properly administer the affairs
of the State Prison. As every person knows who has been conversant with the affairs of that prison, it is the hope which remains in the breast of the prisoner that inspires him and leads him! to reformation. And if there be a man who contends for the continuance of capital punishment in this State, there are five cells in that prison which are occupied by the most miserable of men, and he will therefore find an argument almost irresistible. These are men whose punishment has been commuted from the gallows to imprisonment for life, and with no hope in their breasts, and they become dangerous men. One after another they have gone to the darkness of the dungeon forever. I have talked with these men, and asked them to consider whether they could not come forth and breathe the free air of heaven even within the limits of the prison yard. With the sadness of despair upon their countenances they have finally given a negative answer, because they knew that hope was gone from their breasts, and that they had not the power to control the passions which were planted in their natures. Again, I say, it is the feeling of hope within the prisoner's breast that enables him to bear up, day after day, and year after year, against the punishment which the Commonwealth has inflicted upon him; and I say again, that the pardoning power cannot be dispensed with. ' It is the moral power which is the most potential of all power in prison discipline, and it is absolutely essential to the perpetuity of that discipline. Nor do I see how it can be transferred to other hands.
The statistics upon this point, for a term of years, with respect to the pardoning power, show that of those in whose behalf it has been exercised, not more than ten per cent. have been known to have committed crimes again, either in this or. any other State. I think that is a most happy commentary upon the exercise of this power. Mistakes have been made, no doubt. They have been made. But we are not here asked by the people to make an organic law with an eye singly to exceptions and mistakes. No, we are to keep in view the general rule in the exercise of the pardoning power, as well as the general experience in relation to every other power. The pardoning power, then, cannot be dispensed with. Where shall it be vested even if taken from the Council ? The Committee say in the governor. I, Sir, am not disposed to doubt the power of the chief magistrate of the Commonwealth to discharge numerous and important duties; but I doubt the power of any man to exercise the authority now vested in this department of the government. I doubt it. Why? Because, in the first place, you lose the moral force of the pardoning power. Through the action of the Council the convict is not sent forth to the world unprotected and uncared for. According to my own experience, the Executive and Council visit the prison and make themselves acquainted with its affairs, get a personal knowledge of the prisoners, have conversations with them, inspire them with cheering words, and thus exert a moral influence; and even their very presence is a moral force, by which the discipline of the prison is preserved and maintained. If you abolish the Council, you lose this moral power which belongs to the exercise of this constitutional duty. I say it is of too much importance to be sacrificed, and I say that no one individual can exercise this power. The duties of the chief
THE COUNCIL AND LIEUTENANT-GOVERNOR. - BOUTWELL - ADAMS,
magistrate are too numerous to allow him to do ple, from single councillor districts. I have said other hand would be productive of some good. it if he had the ability and the disposition; and " chosen by the people," because the Council, as Therefore, I am content that the election should abore all, the existence of a Council, the duties at present constituted, is in its nature a deviation be by districts. If it is the pleasure of the Conof the Committee on Pardons, and the course of from the original intention of that body. For. vention that they should be elected upon a genproceedings in the Council-chamber, save every | merly, the councillors were selected from the eral ticket, in that judgment I should not hesitate individual from personal responsibility in this senators, and the senators were chosen by the to concur, because I am not so fixed in opinion matter. And you, Sir, know too well the influ. people, and, of course, they owed to the people upon this point that I consider it essential to run ence which a single individual, clothed in the
the fact of their having a seat in the Council. counter to what may be the sentiment of this habiliments of woe, can exert, to require that I Therefore the people virtually selected the coun- Convention. With these views I submit the should say a single word to you on that point. cillors of the State. But such is not now the amendments to the judgment of the Convention. There are nearly five hundred individuals in the case. They are chosen by the legislature; and I Mr. ADAMS, of Lowell. As a member of State Prison. They are not without friends. think, if there be any dissatisfaction in the public that Committee who reported the resolutions, I They have wives, they have mothers, they have mind with regard to the ('ouncil, it comes some- wish to occupy the attention of this Convention a children, all anxious, and what do the committee what from the irresponsible character which they few minutes in stating some of the reasons which propose: To send them all imploringly to the have as regards the public judgment, being, as induced me to concur in that Report. From the chief magistrate of this Commonwealth. Now, they are, elected by the legislature. I am in commencement I have been of the opinion, which the Committee on Pardons hear the case in a favor of electing the ('ouncil by the people, and I had supposed, and which I now suppose to be formal way; personal responsibility attaches to no I am in favor of electing them by districts. entertained by a very respectable proportion of one; all understand that the Council has not There may be, I know there are-gentlemen on the people of this Commonwealth, who have exthe power to pardon any one; all understand this floor, who would be in favor of electing coun- amined this subjert, that there is no necessity for perfectly that the governor has not the power ; cillors upon a general ticket. I have, as a fixed the continuance of the Executive Council. It ill all understand that it is by the concurrent action rule, objections to the general ticket system. becomes me, perhaps, to advocate that theory, diof both that the pardon is obtained. Therefore, Wherever it exists, its tendency, and, for the most rectly in the face of those gentlemen who have you have formality of proceeding and the absence part, its effect, is, to take the power from the had experience in that body either as chief magisof individual responsibility, and I take it we people, and transfer it to conventions, commit- trates of the Coinmonwealtn or as members of the ought not to disregard these considerations. tees, and irresponsible organizations. There- Council. But, Sir, I feel bound to say that my In the next place--and I know not that there fore, for one, I prefer the election by single dis
contidence in the judgment of those gentlemen is is but one point more on which I wish to speak- tricts, rather than upon the general ticket, though somewhat shaken, when they tell us it would be the governor of the Commonwealth should have I think the objections which I have to the gener- extremely ditficult to get along without the existthe means of communication with the people; al ticket system, apply with less force to the coun- ence of an Executive Council in this Commonthere should be avenues of intelligence. The cillors than to other officers in the ('ommon- wealth, when it is perfectly well settled that sevenHouse of Representatives and the Senate have wealth. But those reasons it is not necessary for eighths of the States of this confederay never had committees which they call the eyes and ears of me now to state.
any Council and probably never will have any. the respective bodies. Now what does the ('om- The second proposition which I have submitted I would like to ask how the governments of the mittee propose by the abolition of the Council ? is, that the record of the proceedings of the ('oun- great States of Pennsylvania, Ohio and New York To take from the executive of the Commonwealth cil shall always be open for public examination. | are conducted, if a Council is indispensable to the the eyes and ears which the present Constitution I think this is another, and the chief source of pre- administration of public affairs. I do not pretend of the State gives to him. You do not expect the judice which exists in the public mind against the to deny that to have a Council at some times may governor of the State to proceed in the exercise of Council. In fact, the chairman of the Committee, be very convenient for certain purposes. But his duties without information. To some extent throughout the whole of his remarks, indicated that is not the question. It might be convenient he must rely upon other men around him, in that, in his opinion, one of the objections to the to have a dozen Councils at certain times; but the different parts of the State or different localities. Council, was the secrecy of its sessions, they question for this Convention to decide, and which The question then is, whether you will give him being in the nature of Star Chamber proceedings. is directly before this Committee is, whether there avenues of communication with the people, who Now, so far as I know, nothing takes place in are not other departments of the government to shall be responsible to the people, or make it neces- Council which the people might not with propri- which the duties which are now performed by the sary for him to make such a selection as he may ety see and hear. For one, I am ready to place Council may not with propriety be assigned. be able to choose or make. I say it is for the it upon such a basis, that its proceedings shall be That is the question, and I submit that the prointerest of the people to give him constitutional as public and open as those of any other branch position which is made in the Report of the Comadvisers, men responsible to the people and to of the government. Therefore, I have proposed mittee is one that commends itself to the judgment him, and if they fail in the discharge of their duties to amend the Report so that the proccedings of of every gentleman of this Committee. the responsibility is upon them. But if he can have the Council shall be always open for public ex
I submit, Sir, that there is no duty assigned to no means of communication except through irre- amination.
or performed by that Council which would not be sponsible men; you cannot complain if his conduct These, Sir, in brief, are, first, the reasons which as conveniently performed by other branches of is such as would be likely to comport with the influence me in voting for the preservation of the the government as they at present exist, without irresponsible character of the information he re- Council; and secondly, the reasons in favor of materially increasing the expenses of those departceives. I think this consideration alone is suffi- their election by the people and the abolition of ments beyond what they are at present. But the cient to justify this Convention in retaining that the injunction of secrecy upon their proceedings. matter of expense, in relation to the Council, I branch of the government in some form or other. I suppose, in reference to the first amendment must confess did not enter into my calculation;
I have not spoken of that part of the duty of which I have had the honor to submit, that some I did not regard that as of much consequence, for I the Council on which the Committee seemed to objection may be made to the election of the do not think the small sum of three or four thoudwell--the matter of appointments and confirm- councillors from single districts, on the ground sand dollars, or perhaps five, is an item to be taken ations, because they are comparatively unimportant that the governor naturally, and almost necessa- into consideration. Weightier matters operated and always have been; and if the result of this rily, will have about him one or two or more men upon my mind, and led me to the conclusions to Convention and the judgment of the people shall of opposite political opinions to his own. I do which I have arrived. I think those duties can be what I expect it will be, the duties of the chief not consider that an evil. It would be a great be just as well performed without the Council, magistrate will be much less in this particular than misfortune if the governor should be of one polit- for the reason that they are just as well performed they are now. Therefore I pass over all consid- ical opinion and the majority of the Council of in other parts of the country where they do not erations of that sort as of no material value in the another. But I do not know that even that would have such a branch as this. Without going into discussion of this question. be a public evil; and I am quite sure, upon a
details—leaving that for the chairman of the With your leave, Mr. Chairman, I come to careful view of the whole matter, that the pres- Committee, and any other gentleman who may consider the amendments which I have had the ence of one or two men, of political opinions op- see fit to address the Committee upon that subhonor to submit. The first is, that the Council posed to those of the chief magistrate of the Com- | ject-I propose to examine this question. The shall consist of eight, to be chosen by the peo- monwealth, would work no harm, but on the distinguished gentleman who just took his seat,