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ham did not allude to, but which ought to be stated; and that is, that although the governor may not adopt the recommendation of the Council, and pardon the criminal, he cannot grant a pardon without the recommendation of the Council.

If there had been some controlling or restraining power, of this kind, in the States of Pennsylvania, and New York, the instances of the abuse of the pardoning power in those States, which have been alluded to in debate, would probably never have occurred. It is no reply to the argument founded upon such abuses of the pardoning power, to say, that the people of those States, in refusing to re-elect to office Governors Porter and Young, thus passed a judgment of condemnation upon their conduct in this respect. Not at all. Did this act of the people return to their cells and chains, criminals who had violated their laws by the commission of the most atrocious acts, and who had no claim of any kind to the executive clemency? Did this repair the wrong inflicted upon the community by a corrupt exercise of the pardoning power?

And now I pass to the opinion expressed by the gentleman for Wilbraham, as to the services of the Council in the examination of accounts, and here my experience is again entirely and wholly at variance with his. In 1819 the legislature established the office of auditor of accounts, and by this Act it is required of that oflicer that he should examine all accounts against the Commonwealth, with specified exceptions, and certify in each case the amount due in his judgment up to the governor, who may draw a warrant for the same as provided in the Constitution; and that when a warrant is drawn, the secretary shall serve notice of the same upon the auditor, stating the amount and purport of the same.

The phrase

ology of this act entirely precludes the idea that warrants are to be drawn for any amount the auditor may please to certify to, even if there was no constitutional obstacle in the way of such a procedure. All accounts are examined by the auditor, and from his office they go to the Councilchamber, and here the warrant that is to draw the money from the treasury is never passed until all claims in relation to which a question can arise, have been referred to the Committee on Accounts, and have been investigated and reported upon. I remember very well one instance in which a certain account was sent by the auditor before he passed upon it to the Council requesting instructions; it was made a matter of examination, and without going into particulars further, I can state, that the result was a saving to the State of a considerable amount. But the instances in which accounts that have passed the auditor and been referred to the Committee on Accounts, and which have been reported by them back to the Council, with the recommendation of more or less disallowance, are numerous. I am fully satisfied, notwithstanding what has been said to the contrary, that as it regards this matter of accounts, the service rendered by the Council is essentially useful, and that no one man should ever be intrusted with undivided and unlimited power to determine claims against the government. And yet this is the argument of the gentleman for Wilbraham. Because we have an auditor of accounts, he says, we have no need of a power to I do not think so. I believe it is revise his acts. safer to rely upon the judgment and trust to the

honesty of many men than one man, and under no circumstances should I consider it wise to give a single individual plenary jurisdiction in the settlement of accounts against the State.

I had intended, Mr. Chairman, to present my views on the proposition relative to the Council and Lieutenant-Governor, now before us, much more fully, but the gentleman for Abington, (Mr. Keyes,) has to a great extent anticipated me, and has submitted, more ably than I could hope to do, many considerations adverse to these propositions which appear to me to have weight. It would be useless to repeat, and I coutent myself with the few remarks I have made, declaring my own conviction that both the abolition of the Council and the transfer of the Lieutenant-Governor from the Council to the Senate is inexpedient and unadvisable.

Mr. UPTON, of Boston. The Committee who have made this Report will probably want to hear, early in the course of debate, the reasons and arguments which will be advanced against it. I, therefore, rise at this time for the purpose of stating some strong reasons, which I hope will commend themselves to that Committee, why the Report of the Committee ought not to pass.

I believe, Sir, that the stigma-if I may so call it which has been put upon the Council of Massachusetts for a number of years past, has grown out of the feeling which has been engendered by the legislature, that the Council is an inefficient body. Every one upon this floor knows very well that the members of the Council have been stigmatised as belonging to the hospital of invalids. If a man was blind, or lame, or had weak lungs, or weak limbs, it was said by his political friends, let us put him into the Council. That has been the ordinary course, and from this fact and that the proceedings of the Council have been transacted in private, not one half of the citizens of the Commonwealth of Massachusetts-unless it has happened to them to have been councillors-are aware of the labor performed in that chamber.

The few remarks I shall make, will be principally in answer to the Report of the Committee, which goes first into the matter of expenditure. The Committee has brought forward, in the Report, the statement that the cost of maintaining the Council of Massachusetts, for the last four years, has been five thousand two hundred and sixtythree dollars per annum, and for that reason the Council should be abolished and the expense

saved.

Now, in answer to that argument, I may say, that, during the last three years, the sessions of the legislature have been long ones; a result which has grown out of the state of parties, and that, therefore, this $5,263 per year is not a fair statement of the cost of maintaining the Council. For the nineteen years preceding, the cost of the Council has averaged about $3,300 per year, and I believe I may safely state that for a series of years, the cost of the Council will average only about $3,000 per annum, and with the ordinary length of the sessions of the legislature, that sum would be the extreme amount which would be levied upon the good citizens of Massachusetts for the support of the Council.

There is another thing, growing out of these long sessions, which has increased the expense of the Council. The governor can adjourn the Council whenever he pleases, but the Council is

(June 2d.

not adjourned at any particular time by the Constitution. The governor keeps the Council together during the sittings of the legislature. Such has been the action and practice of the executive department of the government in relation to the Council. Therefore the longer the session of the legislature, the greater the expense of the Council. I think these expenses may be fairly set, for a scries of years, at a sum not exceeding $3,500 per year, and therefore, looking to the future, that would be the maximum of expense which would be charged to the Commonwealth.

Well, Sir, the Report goes on, and among the various duties assigned to the Council, which it purposes to distribute to other departments, is that of exercising the pardoning power. The chairman of the Committee, (Mr. Hallett,) prefers to leave the subject of pardons entirely with the governor. It was my fortune some two or three years since to be in the company of the executive of a neighboring State, in which there was no Council-the great State of New York. The governor of that State, after he had been in office some six months, stated that he then had in his hands papers upon the subject of pardons, which, if he should use all of his unocupied time for the remainder of the two years for which he was elected, he would barely be able to read through.

Now, if I understand the chairman of the Committee, he proposes to give this power of pardon entirely to the governor, and he relies upon the governor's having time, in addition to all other duties imposed upon him, to consider the various applications that will be made to him. I confess, Sir, that I agree with the gentleman for Abington, (Mr. Keyes,) in regard to the Report of the Committee, or in regard to the explanation of that Report, so far as the chairman was concerned, upon the subject of pardons. I should not select for my council, upon this subject of pardons, an individual who had ever been a prosecuting officer. Their milk of human kindness, if I may so express myself, has too much of the rennet in it. I am glad that in this State we have this power, and I hope this Convention will never propose to take from the people of this Commonwealth, the power of going to some proper authority, above all courts, for the purpose of correcting any sentences of those courts which may be found to be incorrect.

The little experience I have had upon matters connected with the Council, has learned me one thing, that however honest courts may be, there is a great difference in the sentences which are pronounced for the same class of offences. For instance, you will find that one individual, in the county of Essex, who has committed a crime, being defended by able counsel, and surrounded by friends, will meet with a sentence comparatively light. Another person, in a neighboring county, without any able counsel to defend him, or friends to countenance him, will, for the same offence, suffer a much heavier punishment. Although in such cases no injustice was intended to be done, yet so far as the administration of law in this Commonwealth is concerned, there is an inequality of punishment for the same crimes, and an inequality, which occasionally requires a remedy by some power above the courts.

In my opinion, from what I have seen, you have always had a Council, with the LieutenantGovernor, elected by the people of the Commonwealth of Massachusetts, at its head, which have

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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. Hallett,) 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 Constitution (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, consent 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 the 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 appointments, 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, I 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

1

[June 2d.

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 that you had better keep t! e 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 place 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

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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 Committee, 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 Committee has come out and made such an honorable expose of the great and arduous duties which devolve upon this Council; 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, dir, not one. Then, in the language adopted upon a different occasion, I will inquire, What evil hath He done?" When they cried out after him, "Let Him be crucified," the great interrogatory was, " Why, 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 so.

As to the matter of dollars and cents, I am very much of the opinion that that which costs nothing is of little intrinsie worth. And that government which costs nothing is a poor government at best.

I am not in favor of such a system of extravagance as will allow persons to put their hands into the public 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 parsimony. I do not believe the people of the Commonwealth will thank you for it. They desire a good, safe, and ethcient 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 Constitution, 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

[June 2d.

offer the following amendment to the resolves of the Committee; viz., to strike out all after the word ** Resolved," in the first resolution, and subsutute two other resolutions, which I will read:

"Ist. Resolved, That eight councillors be elected by the people, in single districts, each district to consist of five contiguous senatorial districts.

#2d. Resol ed, 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 Council 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 Convention or the legisla ture 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 CHAIRMAN. 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

Hampden. Hampshire. Dukes. Nantucket.

On motion by Mr. NAYSON, 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 Council 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 considered 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 claims 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 posi

tion.

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. He 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

[June 2d.

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

Thursday,]

magistrate are too numerous to allow him to do it if he had the ability and the disposition; and above all, the existence of a Council, the duties of the Committee on Pardons, and the course of proceedings in the Council-chamber, save every individual from personal responsibility in this; matter. And you, Sir, know too well the influence which a single individual, clothed in the habiliments of woe, can exert, to require that I should say a single word to you on that point. There are nearly five hundred individuals in the State Prison. They are not without friends. They have wives, they have mothers, they have children, all anxious, and what do the Committee propose To send them all imploringly to the chief magistrate of this Commonwealth. Now, the Committee on Pardous hear the case in a formal way; personal responsibility attaches to no one; all understand that the Council has not the power to pardon any one; all understand perfectly that the governor has not the power; all understand that it is by the concurrent action of both that the pardon is obtained. Therefore, you have formality of proceeding and the absence of individual responsibility, and I take it we ought not to disregard these considerations.

In the next place-and I know not that there is but one point more on which I wish to speakthe governor of the Commonwealth should have the means of communication with the people; there should be avenues of intelligence. The House of Representatives and the Senate have committees which they call the eyes and ears of the respective bodies. Now what does the Committee propose by the abolition of the Council? To take from the executive of the Commonwealth the and ears which the present Constitution eyes of the State gives to him. You do not expect the governor of the State to proceed in the exercise of his duties without information. To some extent he must rely upon other men around him, in different parts of the State or different localities. The question then is, whether you will give him avenues of communication with the people, who shall be responsible to the people, or make it necessary for him to make such a selection as he may be able to choose or make. I say it is for the interest of the people to give him constitutional advisers, men responsible to the people and to him, and if they fail in the discharge of their duties the responsibility is upon them. But if he can have no means of communication except through irresponsible men, you cannot complain if his conduct is such as would be likely to comport with the irresponsible character of the information he receives. I think this consideration alone is sufficient to justify this Convention in retaining that branch of the government in some form or other.

I have not spoken of that part of the duty of the Council on which the Committee seemed to dwell-the matter of appointments and confirmations, because they are comparatively unimportant and always have been; and if the result of this Convention and the judgment of the people shall be what I expect it will be, the duties of the chief magistrate will be much less in this particular than they are now. Therefore I pass over all considcrations of that sort as of no material value in the discussion of this question.

With your leave, Mr. Chairman, I come to consider the amendments which I have had the honor to submit. The first is, that the Council shall consist of eight, to be chosen by the peo

ple, from single councillor districts. I have said "chosen by the people," because the Council, as at present constituted, is in its nature a deviation from the original intention of that body. Formerly, the councillors were selected from the senators, and the senators were chosen by the people, and, of course, they owed to the people the fact of their having a seat in the Council. Therefore the people virtually selected the councillors of the State. But such is not now the case. They are chosen by the legislature; and I think, if there be any dissatisfaction in the public mind with regard to the Council, it comes somewhat from the irresponsible character which they have as regards the public judgment, being, as they are, elected by the legislature. I am in favor of electing the Council by the people, and I am in favor of electing them by districts. There may be I know there are-gentlemen on this floor, who would be in favor of electing councillors upon a general ticket. I have, as a fixed rule, objections to the general ticket system. Wherever it exists, its tendency, and, for the most part, its effect, is, to take the power from the people, and transfer it to conventions, committees, and irresponsible organizations. Therefore, for one, I prefer the election by single districts, rather than upon the general ticket, though I think the objections which I have to the general ticket system, apply with less force to the councillors than to other officers in the Commonwealth. But those reasons it is not necessary for

me now to state.

The second proposition which I have submitted is, that the record of the proceedings of the Council shall always be open for public examination. I think this is another, and the chief source of prejudice which exists in the public mind against the Council. In fact, the chairman of the Committee, throughout the whole of his remarks, indicated that, in his opinion, one of the objections to the Council, was the secrecy of its sessions, they being in the nature of Star Chamber proceedings. Now, so far as I know, nothing takes place in Council which the people might not with propriety see and hear. For one, I am ready to place it upon such a basis, that its proceedings shall be as public and open as those of any other branch of the government. Therefore, I have proposed to amend the Report so that the proceedings of the Council shall be always open for public examination.

These, Sir, in brief, are, first, the reasons which influence me in voting for the preservation of the Council; and secondly, the reasons in favor of their election by the people and the abolition of the injunction of secrecy upon their proceedings. I suppose, in reference to the first amendment which I have had the honor to submit, that some objection may be made to the election of the councillors from single districts, on the ground that the governor naturally, and almost necessarily, will have about him one or two or more men of opposite political opinions to his own. I do not consider that an evil. It would be a great misfortune if the governor should be of one political opinion and the majority of the Council of another. But I do not know that even that would be a public evil; and I am quite sure, upon a careful view of the whole matter, that the presence of one or two men, of political opinions opposed to those of the chief magistrate of the Commonwealth, would work no harm, but on the

[June 2d.

other hand would be productive of some good. Therefore, I am content that the election should be by districts. If it is the pleasure of the Convention that they should be elected upon a general ticket, in that judgment I should not hesitate to concur, because I am not so fixed in opinion upon this point that I consider it essential to run counter to what may be the sentiment of this Convention. With these views I submit the amendments to the judgment of the Convention.

Mr. ADAMS, of Lowell. As a member of that Committee who reported the resolutions, I wish to occupy the attention of this Convention a few minutes in stating some of the reasons which induced me to concur in that Report. From the commencement I have been of the opinion, which I had supposed, and which I now suppose to be entertained by a very respectable proportion of the people of this Commonwealth, who have examined this subject, that there is no necessity for the continuance of the Executive Council. It ill becomes me, perhaps, to advocate that theory, directly in the face of those gentlemen who have had experience in that body either as chief magistrates of the Commonwealth or as members of the Council. But, Sir, I feel bound to say that my confidence in the judgment of those gentlemen is somewhat shaken, when they tell us it would be extremely difficult to get along without the existence of an Executive Council in this Commonwealth, when it is perfectly well settled that seveneighths of the States of this confederacy never had any Council and probably never will have any. I would like to ask how the governments of the great States of Pennsylvania, Ohio and New York are conducted, if a Council is indispensable to the administration of public affairs. I do not pretend to deny that to have a Council at some times may be very convenient for certain purposes. But that is not the question. It might be convenient to have a dozen Councils at certain times; but the question for this Convention to decide, and which is directly before this Committee is, whether there are not other departments of the government to which the duties which are now performed by the Council may not with propriety be assigned. That is the question, and I submit that the proposition which is made in the Report of the Committee is one that commends itself to the judgment of every gentleman of this Committee.

I submit, Sir, that there is no duty assigned to or performed by that Council which would not be as conveniently performed by other branches of the government as they at present exist, without materially increasing the expenses of those departments beyond what they are at present. But the matter of expense, in relation to the Council, I must confess did not enter into my calculation; I did not regard that as of much consequence, for I do not think the small sum of three or four thousand dollars, or perhaps five, is an item to be taken into consideration. Weightier matters operated upon my mind, and led me to the conclusions to which I have arrived. I think those duties can be just as well performed without the Council, for the reason that they are just as well performed in other parts of the country where they do not have such a branch as this. Without going into details-leaving that for the chairman of the Committee, and any other gentleman who may see fit to address the Committee upon that subject-I propose to examine this question. The distinguished gentleman who just took his seat,