(June 10th.

ever, seems to provide differently. The second article of amendment provides that “the general court shall have full power and authority to erect and consitute municipal or city governments, in any corporate town or towns in this Commonwealth, or to grant to the inhabitants thereof such powers, privileges and immunities, not repugnant to the Constitution, as the general court shall deem necessary or expedient for the regulation and government thereof, and to prescribe the manner of calling and holding public meetings of the inhabitants, in wards or otherwise, for the election of officers under the Constitution, and the manner of returning the votes given at such meetings : provided, that no such government shall be erected or constituted in any town not containing twelve thousand inhabitants, nor unless it be with the consent, and on the application of a majority of the inhabitants of such town, present and voting thereon, pursuant to a vote at a meeting duly warned and holden for that purpose,” &c. Hence it will be seen that the Constitution, as it at present exists, makes a marked distinction between city and town governments, and makes “municipal" and "city" governments synonymous.

If the resolve should pass as it now stands, it will lead to confusion in its application, because many people might entertain the same idea that I have entertained, that a town government, as well as a city government, is a “municipal” government. But, from the Constitution, it would seem that that this is not the case, and hence the necessity of striking out the word “municipal.” It is not sufficiently definite; and therefore I am in favor of the amendment of the gentleman from North Brookfield, which proposes to strike out the word “municipal” and insert the word “city.” The meaning of the resolution will then be clear and definite. It seems that there should be a distinction, and there is unquestionably a marked distinction between town and city governments. Before the city, which I represent here, was incorporated, I remember that we had at our town elections several separate and distinct ballotings ; and every gentleman will see, that where a secret envelope is to be used in such case, every balloting would be attended with great inconvenience, while, on the other hand, the elections for city governments are like the state elections—all done in one ballot. We have but one ballot a-day. Our tickets are deposited in a ballot-box, for all officers at one and the same time, and therefore no inconvenience arises from the use of the envelope in this case.

I concur fully in the remarks of my friend from Lowell. If there be any case of any kind in which a secret envelope is required for security in the right of voting it is in our city governments rather than in our state governments. I therefore hope that the amendment of the gentleman from North Brookfield will be sustained.

Mr. SARGENT, of Cambridge. I should not have arisen to address the Convention upon this subject, did I not feel that I was particularly pointed out by the gentleman from North Brookfield, (Mr. Walker.) He called upon the members of this Convention who represent cities out of Boston, to answer for themselves, whether they were in favor of the amendment which he proposed, and whether that amendment was not desired by their constituents. But, Sir, he was very careful, and very kind, to say that he would excuse those

gentlemen who represent cities not in favor of the secret ballot.

Mr. WALKER. I said not in favor of the Convention.

Mr. SARGENT. Very well. I never asked to be excused from the discharge of any duty which devolves upon me. I believe, in the outset, that the citizens of the city which I have the honor in part to represent, are not in favor of ingrafting this principle into the Constitutionthat is, that a very small minority of them are in favor of it, -and I am borne out in this belief, from the fact that I found, on going to the polls at the last election, when a law had been passed, giving to every man the option of voting by the secret or open ballot, that a considerable portion of the men who were in favor of this Convention, and who belonged to the party to which the gentleman himself, (Mr. Walker,) belongs, came up and voted the open vote, rejoicing that they were again restored to that privilege.

Another thing, Sir; I hold that the citizens of the city I represent, ask no special privileges. They ask that under the Constitution and laws of the Commonwealth, no right shall be guaranteed to them, that is not guaranteed to every citizen of Massachusetts. Now, Sir, let us not lose sight of the principle of this resolve. What is it? It is to protect the right of suffrage. Now, Sir, the citizens of Cambridge ask no greater protection than you award to the citizens of every town of this Commonwealth. Well, does the importance of the right of suffrage rest alone in the election of governor, lieutenant-governor, senators and representatives? Is there no importance attached to it, in reference to the election of your municipal officers in cities and in towns? If there is any importance attached to those elections, then the importance of applying this principle is just as strong in towns as it is in cities. I ask if it is not of as much importance that the right of the citizens of towns should be protected in the election of their selectmen, as it is that those of the cities should be protected in the election of their aldermen and common councillors?

It has been said that the city governments raise money in the cities, while the people raise it in the towns. Sir, it is not proposed that it shall be raised by vote, under sealed envelopes, in towns or cities, and therefore, the argument does not apply. I say, if you are to establish this rule at all, you should make it equal throughout the Commonwealth. Why, Sir, it is a principle of the Constitution, that the legislature can pass no law, which is not equal in its operation throughout the Commonwealth. But what do you propose to do here? You propose to establish in your Constitution—in your fundamental lawwhat you declare to be a great principle, demanded for the safety of the people, and the right of the elective franchise; and yet, in the very same breath, you declare that it is not necessary to carry out this principle equally to all the citizens of the Commonwealth. That citizens of different towns conduct their affairs in different manners, seems to me to bear no weight upon this question of the right of suffrage. You say undue influences are brought to bear. Will they not be brought to bear just as much in towns, as in cities,just as much in the election of selectmen and other town officers, as in the election of city officers? I doubt whether there is any class of officers, chosen in this Commonwealth, in whose election more feel

ing is engendered, than in that of the board of the selectmen. I think there is no election contested so strongly.

I hold, then, that if this is a sound principle, if it is necessary in order to protect the right of suffrage, to incorporate it into the Constitution, it is necessary that it should be applied to all cases, as well as to a part.

I am therefore, opposed to the amendment of the gentleman from Brookfield, (Mr. Walker,) unless he shall include in that amendment, towns as well as cities.

Mr. CARTER, of Chicopee. The gentleman from North Brookfield, (Mr. Walker,) advocates the adoption of his amendment upon the ground of the difference in the manner of voting in towns, and voting in cities. Now, Sir, although there may be a distinction in the manner of voting in some towns and cities of the Commonwealth, yet it is not so general as may be supposed. I have the honor of representing in part, one of the towns of the Commonwealth, and the manner of voting in that town is for a large portion of town officers, by general ticket. The selectmen, assessors and school committee, being borne on the same ballot. I do not therefore, see the force of the objection which the gentleman makes, founded upon that difference. I do not know that I shall be disposed to vote for the secret ballot law, but if I should, it will not be because I believe it will have any tendency to secure the ballot-box against the commission of fraud.

It has been urged with a great deal of force here, that this provision is wanted by the laboring men and mechanics, for their protection against the influence, dictation and restraints of their employers. I am willing to go for it, if it is demanded by that class of people, for that reason. If they desire it, they should have it. If they want security in that respect, they are entitled to it; and they have a right to demand at our hands independent suffrage.

It has been my fortune for many years to be connected as an employer, with some of the large manufacturing establishments in the town I represent, and I always supposed, and I still suppose, that the workmen in the mills, and the mechanics in the workshops, go to the polls with as much freedom, and with as little restraint, as any other portion of the citizens of their towns. And therefore, I do not believe, that, for the reasons which have been presented, they demand the incorporation of the secret ballot into our organic law.

The gentleman from North Brookfield, (Mr. Walker,) has undertaken to prophesy in regard to the effects of this law, if adopted. Sir, I will not venture to prophesy in regard to it, but I will venture to suggest to the members of this convention, that, after they shall have presented this proposition to the people of this Commonwealth for their adoption, and after the votes of the several towns of the State shall have been returned, testifying their desire in relation to its adoption, they will look at the vote of the town of Chicopee—which vote will be chiefly given by this class of citizens, that is, the working men and the mechanics-and see, and judge from those returns, whether those men go up to the ballot-box with manly boldness or cringing fear; and whether, in the discharge of their duties and rights, as freemen and American citizens, they desire to perform their duties in the light of day, and in the face of their fellow-citizens, or whether they desire to



(June 10th.

Ross, David, S. Underwood, Orison Royce, James C. Viles, Joel Sanderson, Che-ter Vinton, George A. Sheldon, Luther Wallis, Freeland Sherril, John

Walker, Amasa Simmons, Perez Ward, Andrew H. Simonds, John W. Warner, Samuel, Jr. Smith, Matthew Weston, Gershom B. Sprague, Jelzar

White, George Spooner, Samuel W. Whitney, Daniel S. Stacy, Eben H. Whitney, James S. Stetson, ('aleb

Wilbur, Daniel Stevens, Granville Wilkins, John H. Stevens, Joseph L., Jr. Williams, Henry Stevens, William Williams, J. B. Stiles, Gideon

Wilson, IIenry Strong, Alfred L. Wilson, Willard Sumner, Charles Winn, Jonathan B. Swain, Alanson Winslow, Levi M. Thayer, Willard, 2d Wood, Charles C. Thompson, Charles Wood, Nathaniel Tilton, Abraham Wood, Otis Tilton, Horatio W. Wood, William H. Turner, David P. Wright, Ezekiel Tyler, William

have a cover under which to hide their want of manly independence, as they have been charged with upon this floor. I wish to give these men an opportunity to show how far they appreciate this provision, and it will be from considerations of this kind, if induced to vote for this proposition at all, that I shall do so; and not because I believe the purity of the ballot-box will be promoted by it.

Mr. BIRD, of Walpole. The friends of the secret ballot have reason to congratulate themselves upon the course which this debate has taken. Two-thirds of us came here with the expectation of finding it a difficult matter to incorporate such a provision into the Constitution, but I am surprised, I confess, that the other third agree with us, and are inclined to go further even than we are inclined to go. The difficulty with us is, they think, that we do not go far enough. This being the case, and regarding this matter as settled, as far as its incorporation into the Constitution is concerned, I move the previous question.

The previous question was ordered by a vote of 200 in the affirmative to 90 in the negative.

Mr. ASPINWALL asked that the question on the first amendment be taken by yeas and nays.

The yeas and nays were refused.

The question was then taken on the amendment of Mr. Walker, to the amendment of Mr. Bates, and it was agreed to, by a vote of 183 in the affirmative, and 82 in the negative.

The question then recurred upon the amendment as amended.

Mr. BRAMAN, of Danvers. I was not present the other day when the chairman of this Committee, (Mr. Walker,) enforced his argument upon the Convention in favor of the resolution now under consideration.

The PRESIDENT. The Chair would suggest to the gentleman that the resolution cannot now be discussed, the previous question having been ordered.

Mr. BRAMAN. I thought the previous question had been exhausted.

The PRESIDENT. It has not.

The question was taken and the amendment as amended was adopted.

The question then recurred upon ordering the resolution to a second reading.

Mr. HOOPER, of Fall River, moved that when the question be taken, it be taken by yeas and nays.

Mr. BRAMAN desired to discuss the resolution.

The PRESIDENT decided that no discussion was in order until the previous question had been exhausted.

Mr. HOOPER then withdrew his motion for the yeas and nays upon ordering the resolution to a second reading, proposing to move for them upon the final passage of the resolution.

Mr. THOMPSON, of Charlestown, renewed the motion and desired to express his reasons, but was called to order by the President.

The yeas and nays were ordered—65 members having voted therefor.

The question “shall the resolution be ordered to a second reading," was then taken and the result was-yeas, 233; nays, 94-as follows :

Baker, Hillel

Griswold, Whiting Ballard, Alvah Hladly, Samuel P. Ball, George S. Ilapgood, Lyman W. Bancroft, Alpheus

Ilapgood, Seth Barrett, Marcus Haskell, George Bates, Moses, Jr. Ilaskins, William Beach, Erasınus D. Hawkes, Stephen E. Beal, John

Ilayden, Isaac Bennett, William, Jr. IIeath, Ezra, 2d Bennett, Zephaniah Hewes, James Bigelow, Edward B. Hewes, William H. Birl, Francis W. Heywood, Levi Bishop, Henry W. IIobart, Henry Bliss, Gad (.

IIobbs, Edwin Booth, William S. IIolder, Nathaniel Boutwell, Geo. S. Hood, George Boutwell, Sewell Hooper Foxter Bradford, William J. A. IIoward, Martin Breed, Hiram X. Howland, Abraham H. Bronson, Asa

Iloyt, Ilenry K. Brown, Adolphus F. Ilubbard, William J. Brown, Alpheus R. Huntington, Charles P. Brown, Artemas Huntington, George II. Brown, Hammond Hurlbut, Moses C. Brown, Hiram C. IIyde, Benjamin D. Brownell, Frederick Ide, Abijah M., Jr. Brownell, Joseph Jacobs, John Bryant, Patrick Johnson, John Buck, Asahel

Kendall, Isaac Bullen, Amos H. Kimball, Joseph Burlingame, Anson Kingman, Joseph Cady, Henry

Knight, Hiram Carter, Timothy W. Knight, Jefferson Caruthers, William Knowlton, Charles L. ('ase, Isaac

Knowlton, J. S. C. Chap in, Daniel E. Knowlton, William H. Childs, Josiah

Knox, Albert Churchill, J. McKean Kuhn, George, H. Clark, Henry

Ladd, Gardner P.
Clark, Ransom Langdon, Wilber C.
Clarke, Stillman Lawrence, Luther,
Cleverly, William Lawton, Job G., Jr.
Cole, Lansing J. Lincoln, Abishai
Cole, Sumner

Little, Otis
Crane, George B. Loomis, E. Justin
Cressy, Oliver S. Marble, William P.
Cross, Joseph W. Marvin, Abijah P.
Cushman, IIenry W. Mason, Charles
Cutler, Simeon N. Meader, Reuben,
Davis, Charles G. Merritt, Simeon
Davis, Ebenezer Monroe, James L.
Davis, Isaac

Moore, James M.
Davis, Robert T.

Morton, Marcus Day, Gilman

Morton, Marcus, Jr. Dean, Silas

Morton, William S. Deming, Elijah S. Nash, Hiram Denton, Augustus Nayson, Jonathan De Witt, Alexander Newman, Charles Duncan, Samuel Nichols, William Dunham, Bradish Norton, Alfred Durgin, John M.

Nute, Andrew T. Earle, John M. Orne, Benjamin Easton, James, 2d Osgood, Charles Eaton, Calvin D. Packer, E. WingEdwards, Elisha Paine, Benjamin Ely, Joseph M. Paine, Henry Fiske, Emery

Parsons, Samuel C. Fisk, Lyman

Partridge, John Fitch, Ezekiel W. Pease, Jeremiah, Jr. Foster, Aaron

Penniman, John Foster, Abram

Perkins, Daniel A. Fowle, Samuel

Perkins, Jesse Freeman, James M.

Perkins, Noah C. French, Charles A. Phelps, Charles French, Samuel Phinney, Silvanus B. Gale, Luther

Pierce, Henry Gardner, Johnson Pool, James M. Gates, Elbridge Powers, Peter Gilbert, Washington Putnam, John A. Giles, Charles G. Rantoul, Robert Gooch, Daniel W. Rawson, Silas Gooding, Leonard Richards, Luther Gourgas, F. R.

Richardson, Daniel Graves John W. Richardson, Nathan Green, Jabez

Richardson, Samuel H. Greene, William B. Rockwood, Joseph M. Griswold, Josiah W. Rogers, John

XAYS. Adams, Benjamin P. Harmon, Phineas Aldrich, P. Emory Haywood, George Andrews, Robert llenry, Samuel Appleton, William HIersey, Henry Aspin wall, William Hindsdale, William Atwood, David C. Hobart, Aaron Ayres, Samuel Houghton, Samuel Barrows, Joseph HIunt, William Bartlett, Russel Hurlburt, Samuel A. Bell, Luther V. Jackson, Samuel Blagden, George W. James, William Bliss, Willam C. Jenkins, John Braman, Milton P. Kellogg, Giles C. Brewster, Osmyn Kinsman, Henry W. Brinley, Francis Lincoln, Frederic W., Jr. Briggs, George W. Littlefield, Tristram Bullock, Rufus Livermore, Isaac Coggin, Jacob

Lothrop, Samuel K. Cogswell, Nathaniel Loud, Samuel P. Conkey, Ithamar Lowell, John A. Cook, Charles E. Miller, Seth, Jr. Cooledge, Ilenry F. Morey, George Copeland, Benjamin F. Noyes, Daniel Crittenden, Simeon Oliver, Henry K. Crockett, George W. Orcutt, Nathan Crosby, Leander Park, John G. Crowell, Seth

Parker, Adolphus G. Cummings, Joseph Parsons, Thomas A. Curtis, Wilber

Peabody, George Davis, John

Sargent, John Davis, Solomon Schouler, William Dawes, Henry L. Sleeper, John S. Denison, Hiram S. Stevens, Charles G. Dorman, Moses Talbot, Thomas Eames, Philip

Taylor, Ralph
Eaton, Lilley

Tileston, Edmund P.
Edwards, Samuel Turner, David
Ely, Homer

Upham, Charles W.
Farwell, A. G. Upton, George B.
Fowler, Samuel P. Walcott, Samuel B.
French, Charles H. Walker, Samuel
Gilbert, Wanton C. Weeks, Cyrus
Gould, Robert

Wetmore, Thomas
Goulding, Jason Wheeler, William F.
Gray, John C.

White, Benjamin Hale, Artemas

Wilder, Joel Hammond, A. B. Wilson, Milo


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(June 10th.

Easland, Peter

Parris, Jonathan Eustis, William T.

Payson, Thomas E.
Fay, Sullivan

Peabody, Nathaniel
Fellows, James K. Perkins, Jonathan C.
French, Rodney Plunkett, William C.
Frothingham, Rich'd, Jr. Preston, Jonathan
Gardner Henry J. Prince, F. O.
Giles, Joel

Putnam, George
Goulding, Dalton Read, James
Greenleaf, Simon Reed, Sampson
Hadley, Samuel P. Rice, David
Hale, Nathan

Ring, Elkanah, Jr.
Hall, Charles B. Rockwell, Julius
Hallett, B. F.

Sampson, George R.
Hathaway, Elnathan P. Sanderson, Amasa
Heard, Charles

Sherman, Charles
Hillard, George S. Sikes, Chester
Hopkinson, Thomas Souther, John
Hunt, Charles E. Stevenson, J. Thomas
Huntington, Asahel Storrow, Charles S.
Jenks, Samuel II. Stutson, William
Kellogg, Martin R. Sumner, Increase
Keyes, Edward L. Taber, Isaac C.
Knight, Joseph Taft, Arnold
Ladd, John S.

Thayer, Joseph
Leland, Alden

Thomas, John W. Lord, Otis P.

Tower, Ephraim
Marcy, Laban

Train, Charles R.
Marvin, Theophilus R. Tyler, John S.
Mixter, Samuel Wales, Bradford L.
Morss, Joseph B. Wallace, Frederick T.
Morton, Elbridge G. Warner, Marshal
Ober, Joseph E. Waters, Asa II.
Paige, James W.

Wilbur, Joseph
Parker, Joel

Wilkinson, Ezra Parker, Samuel D. Woods, Josiah B.

Absent and not voting, 122.

So the resolve was ordered to a second reading.

On motion by Mr. WILSON, of Natick, the Convention resolved itself into

COMMITTEE OF THE WHOLE, Mr. Griswold, for Erving, in the Chair, and proceeded to consider the Report of the Committee to whom was referred so much of the Constitution as relates to the

Courts, Commissioners of Insolvency, District- the Committee came to the conclusion, if not with Attorneys, Registers of Deeds, County Treasu- entire unanimity, with considerable unanimity, rers, and County Commissioners, be elected tri

that all the officers mentioned in the order of ennially by the people of their respective counties and districts.

May 11th, which was referred to them, should be

elected by the people : the Attorney-General, the Upon the order of May 30, 1853,

Treasurer, the Receiver-General, and the Auditor Resolved, That it is not expedient so to amend of Accounts; that all the State officers should the Constitution as to provide for the election by be elected annually, and that all the other officers the people of the Commonwealth of a Prison Inspector.

which were mentioned in the Constitution,

should be elected triennially. They also recomMr. BISHOP, of Lenox. As chairman of the mend that all the officers mentioned in the order Committee to whom was referred the subject now of may 12th, should be elected by the people for under consideration, I beg leave to say, that the the same reason. All these officers, with the exseveral matters which were referred to them have ception of Treasurer and Receiver-General, have received a good deal of deliberation on the part of

heretofore been appointed by the executive power. that Committee. They embrace a variety of sub- This power of appointment has been vested in the jects, although they are such as belong to one supreme executive magistrate of the Commongeneral class.

wealth. Such has been the rule, such the practice, The first question which was submitted to us ever since the adoption of the Constitution of Maswas the resolve which was first read to the Com- sachusetts. We regard it as a correct principle mittee. And with regard to that, the Committee that the supreme power should be the appointing came to an almost unanimous conclusion that the power. The supreme executive has always been words "Solicitor-General" be stricken from arti- regarded in the country from which we emicle 9, section 1, chapter 2, of the Constitution, grated, as the supreme power of the state, and for this reason, among others. The office of not only of the judicial and executive departSolicitor-General has not been in existence for

ments, but also of the legislative. This conferred now nearly a quarter of a century-I think not upon the supreme executive the power to make for more than twenty years. It expired upon the

all appointments of all the subordinate officers, change in relation to the criminal law, which was whether judicial, ministerial or executive. Under made several years ago.

this theory of government it was undoubtedly The office of Attorney-General was at that time proper that all these appointments should be made retained ; but upon the distribution of the pow- by the supreme executive magistrate. ers of jurisdiction among the various courts of the But the theory of our government is different. Commonwealth, this office became unimportant,

With us, the supreme power is with the people. and, in fact, unnecessary; and so long as that The people have the appointing power, and they distribution continues, that office will continue to should, therefore, make the appointment of all be unnecessary, because the duties of the office the officers within their gift, of all the officers are better performed by the District Attorney, or by created by the Constitution and laws, unless there the attorneys in the several counties, than by the be sound reason why that appointment should Attorney-General. For that reason, we thought proceed from a delegated source. We assume it was better to strike the office from the Consti

then, as a principle, that wherever an appointtution, and if it should ever be found necessary to

ment may be made directly by the people, it create it, or an office of a similar character, it is

should be made, but where it cannot be made in the power of the legislature, at any time, to do

without great inconvenience to the public service, so; but so long as the existing state of things

by them, it should be made by the delegated continues, the office will certainly remain un

powers appointed by those parties. But we see necessary.

no reason why all these officers should not be In relation to the second resolve, the Committee appointed by the people. If there is

any reason, recommend that the word " and " be stricken out it will be applicable to all the officers whose duin the first line, and that the words « Receiver- ties relate to the commonwealth of the State, as General and Auditor of Accounts,” be inserted

much as to those of Treasurer, Attorney-General, in the second line. That is a mere change of

Receiver-General and Auditor of Accounts. The phraseology, in order to admit the insertion of Treasurer and Receiver-General have, heretofore, the officer which we had deemed necessary to be

been elected by the joint ballot of both houses of recognized by the Constitution. The office of the legislature, assembled in one room. This Auditor of Accounts was created several years election has, heretofore, been made by a delegated ago-at what precise time I do not recollect-but power, but there was no reason which occurred it was found, as has been previously stated in

to the Committee, why that delegated power Committee, to be an office of great importance, and should longer be employed to elect those officers, under the existing state of things, one necessary

and why the appointments should not be made by to be retained. The duties performed by the the people themselves. Auditor would be performed by some one else, if

In relation to the other officers, the majority of not by an officer of that character, and the Com- the Committee had but little doubt respecting mittee were of the opinion that an officer of this their appointment. Their duties principally recharacter, vested with the powers with which that late to the matters in the county for which they officer is vested, could better discharge those duties are elected, and their jurisdiction does not extend than they could be discharged by a committee of beyond the limits of a single county, with the the legislature, or by any other officer. They exception, perhaps, of that of District Attorney, were, therefore, of the opinion that it was wise to where two or more counties are associated togethrecognize this as an officer, in the Constitution. er. In relation to the appointment of these offi

With regard to the third resolve, that, too, has cers, the Judges of Probate, Clerks of the Courts, received the consideration of the Committee. But Commissioners of Insolvency, District Attorneys, here, Mr. Chairman, permit me to remark, that Registers of Deeds, County Treasurers, County

Secretary, Treasurer, &c.
The Report of the Committee was read by the
Secretary, as follows:

Resolved, That the words “Solicitor-General" be stricken from article 9, section 1, chapter 2, of the Constitution, and that said article be so amended as to require that all Sheriffs, Coroners, and Registers of Probate be elected triennially by the people in their respective counties, and that the Attorney-General be elected annually by the people of the Commonwealth.

Resolved, That article 1, section 4, chapter 2, be amended by striking out the word "and” after the word "Secretary” in the first line, and inserting after the words “Receiver-General” in the second line, the words, “and Auditor of Accounts," and also, by substituting for the words " by joint ballot of the senators and representatives in one room," the words by the people of the Commonwealth," so that said article, as far as, and including the word "room,” may read thus: “The Secretary, Treasurer, and ReceiverGeneral, and Auditor of Accounts, shall be chosen annually by the people of the Commonwealth."

Upon the order of May 12, instructing your Committee "to consider the expediency of incorporating into the Constitution provisions for the election by the people of Judges of Probate, Commissioners of Insolvency, Clerks of the Courts, District Attorneys, and all other county and district officers," —

Resolved, That Judges of Probate, Clerks of the



(June 10th.

Commissioners, and all other county officers, the of one upon the whole subject. I care nothing tablishing an uniform rule in relation to county Committee were of the opinion that there was no about the matter myself, because I suppose I shall officers. reason why they should not be appointed strictly have nothing to say; but it seems to me that the Mr. DANA. I understand the chairman to by the people. The people are conversant, with- gentleman's reason for considering each resolu- say that the object was to have all the county in their own counties, with the people who reside tion separately is not a sati-factory one.

officers elected in the same manner. I would among them, and they are better acquainted with Mr. DAVIS, of Plymouth. It seems to me respectfully submit to the consideration of the the officers who may be selected, than the exec- that the gentleman's objection is very easily an- Committee, that the county character of the utive, or any one else to whom the power may swered. I do not understand it to be the definite Judge of Probate is not the principal element of be delegated, can be.

object of going into Committee of the Whole for his office, that the judicial element is the main We have reported the same term of office for the purpose of discussing every matter, and I be- one, and we should be rather disposed to make Registers and Judges of Probate, Commissioners lieve that the foolishness of doing it in the man- the tenure of office depend upon its judicial and of Insolvency and Commissioners of Highways. ner which we have heretofore pursued is suffi- executive influences, rather than the territorial In relation to the tenure of these offices, a ques- ciently apparent from the debate which took place limit over which it exercises its jurisdiction. tion of no little difficulty was presented. It may on the Report of the Committee concerning qual- Though I see no objection to electing District be that this Committee will come to the conclu- ifications of voters. The first resolve in that Re- Attorneys triennially, there will be this difficulty sion, that the same tenure of office should not port was under debate almost the whole time growing out of it, that not being elected from be affixed to all the offices--that the Judge of during one day, and the next day when we went counties, there will be necessarily new election Probate should hold a longer term than three into Committee of the Whole, we were enter- districts all over the State. Besides our senatoyears—that the Register of Probate, whose duties tained during the whole day almost by a speech rial and representative districts, if we adopt them, are by no means easy, and which are attended from the gentleman from Salem, (Mr. Lord,) and councillor districts, we have also Districtwith some considerable difficulty in their execu- upon the fourth resolution. It was entirely im- Attorney districts to look after, and the result tion, requiring considerable experience and much possible for the Committee to get a definite vote will be that we shall have a complicated system. skill, should retain his office for a longer period upon any one of the propositions until they were But I merely wished to speak of the Judge of than three years. The office of the Judge of instructed by the Convention to close debate at a Probate, and upon this matter I confess I have Probate is a judicial office, intermingled, perhaps, certain hour; and by so doing we found ourselves not had time enough and information enough with executive and administrative duties, and it in such a position, that when amendments were which would warrant me to vote in favor of is an office which requires, for the matters which offered, they were not understood, and we were making Judges of Probate elective triennially. fall within its jurisdiction, not only a competent obliged to vote for them, or vote them down The subject is new to us, and it seems to me a amount of legal learning but some considerable without fully understanding what the object of little out of place in the position in which it now experience derived from practice, and which the the mover of an amendment was. I think, there- stands. To this Committee are confided questions retention of such an office for a considerable pe- fore, that it is best to consider each resolution relating to county officers, Registers, Clerks and riod only, would furnish. The conclusion to separately, and by that course we shall confine District Attorneys. There is a Committee on which the Committee came, in respect to the 'ourselves more strictly to the subject under con- the Judiciary which has the charge of the subject other officers was, that should they prove accept- sideration. I make the motion, then, that we of the Judge of Probate. I believe there was able, and be found competent to discharge the take up these resolves separately.

some discussion upon that point the other day, duties imposed upon them by law, they could be The question was then taken on Mr. Davis's and it was considered that the subject of the Judge re-elected, and if they should be found to be motion, and it was agreed to.

of Probate was referred to this Committee, but as incompetent, then the period of three years was The CHAIRMAN. The question now before the county character of the office is not the main, sufficiently long for them to retain those offices. the Committee is upon the first resolution, which leading feature in it, but is rather of a judicial These are the views which I deem it proper reads as follows :

nature it should have been rather a subject of me to submit to the Committee of the Whole,

reference to the Committee on the Judiciary than upon the presentation of these resolutions.

Resolred, That the words “Solicitor-General” any other committee. I move, therefore, that the Mr. DAVIS, of Plymouth. I now renew my

be stricken from article 9, section 1, chapter 2, of words “ Judges of Probate” be stricken from that motion that the several resolves reported by the

the Constitution, and that said article be so resolve, and if that amendment pass, as I hope it Committee shall be considered separately. We

amended as to require that all Sheriffs, Coroners,
and Registers of Probate be elected triennially by

will, I shall move to refer that same subject to have seen from our experience in Committee of the the people in their respective counties, and that

the Committee on the Judiciary, or bring it up as Whole, that the debate upon subjects before it for the Attorney-General be elected annually by the

a separate resolution, because it seems to me that consideration took a very wide range; and I people of the Commonwealth.

we had better pass upon the questions relating make this motion now for the purpose simply of

to those officers who are in their nature county confining the debate to the subjects under con- Mr. HOOPER, of Fall River. I wish to in- officers, executive or clerical officers, together, and sideration.

quire of the chairman of the Committee why keep this question of the Probate Judge separate Mr. ASPINWALL, of Brookline. I have Coroners are inserted in this article to be elected and distinct, and take it up at another time. very little objection to the motion myself, but I by counties at large. They are a numerous class Mr. BATES, of Plymouth. I would like to should like to know what superiority the system of officers, and would it not be better and more inquire of the gentleman for Manchester, (Mr. of going into Committee of the Whole has over convenient to have them elected by towns than Dana,) if the words Judges of Probate are strickthat of considering matters in Convention, if we counties. I believe every town has one or more, en from the resolution, whether it does not are to take up these questions by piece-mcal in this and some towns have three or four. The duties preclude action upon this subject. If the way. One of the objects of going into Commit- which these officers have to perform hardly ever gentleman will withdraw his motion to strike tee of the Whole is, that debate may be unre- call them out of the town in which they reside. out and leave it so as to consider this quesstricted by the rules which obtain in Convention, Mr. BISHOP, of Lenox. We regarded them tion separately I will vote for it. I wish to have and that it may take the wide range which the as county officers, and not as town officers. the matter considered, because having been a gentleman seems to think is so objectionable. I The question was then taken on the first reso- member of the Committee, I am aware that there would suggest to the gentleman whether we shall lution, and it was agreed to.

are serious difficulties upon this point, and that not really save time by having the whole subject The second and third resolutions were severally there were strong reasons why this officer should under consideration at once. It will occur to read and adopted.

be made elective for a certain period of time. every gentleman that the same reasons will apply Mr. DANA, for Manchester. I would like to Mr. DANA. I will say in answer to the gento every one of these resolves. I have not read inquire of the Chairman or some other member tleman from Plymouth, that I did not propose in them lately, and do not know exactly their tenor, of the Committee, the reasons which induced the making the motion to strike out, to make that a but I believe many of them are of a similar char- Committee to make the Judge of Probate elected test question at all; not to have it considered as acter; and therefore as each resolution is taken triennially. The other officers follow the rule I expressing the opinion of the Convention. But, up, we shall have a repetition of the reasons which presume, which has been adopted in the second being struck out, it would be of course compewere introduced upon former resolutions, so that resolution.

tent for any member-and if no one else does it, we shall have many similar discussions, instead Mr. BISHOP. It was for the purpose of es- I would do it—to move to amend, either in that


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(June 10th.

County Commissioners have judicial authority exceeding that of the Supreme Court; and the Commissioners of Insolvency are also judicial officers. I think that three years should be the period for which the Judge of Probate should hold his office, as well as the other officers named in the resolution. If the Judge of Probate is a good officer and satisfies the people, he will be re-elected. There is no earthly reason why he should not stand on the same footing as other county officers. The amendment proposed by the gentleman from Charlestown, (Mr. Thompson,) is, that the Judge shall be elected for a term of six years, and for every six years thereafter. I do not know but that would require that he should be elected for life, if he must be elected for six years and every six years thereafter. I hope we may proceed to consider it at once. The matter has been fully considered in the Committee before it was brought before the Convention; and now to recommit it, and await the report of another committee, will only occasion delay; and the Committee of the Whole will be no better prepared to act upon it than they are now. I liope it will be considered

It ap


resolution, or to bring in a separate resolution, declaring that Judges of Probate shall be elected triennially by the people in their respective counties; or refer it to the Committee of the Whole, or make any disposition agreeable to the Committee that reported it.

Mr. HOOPER, of Fall River. What is the real objection to acting upon it now. It is before us. Why send it to another Committee? It is a class of officers by itself, and will scarcely class any better with any other than it does with those where it is placed. I think that it is now time to act upon it, while it is before us.

If the gentleman for Manchester has any amendment to propose, as to changing the time, let him propose it. I am willing to consider it separately, but I am opposed to striking it out. It seems to me that we should only lose time, for another Committee to report ; and we should find it difficult to class the Judges of Probate any better than they are now classed. If the gentleman wants to amend the resolution, I hope he will take that course, and let us consider it.

Mr. THOMPSON, of Charlestown. pears to me that Judges of Probate should be elected for a longer time than that which is specified in the resolution; and if the amendment of the gentleman for Manchester prevails, I think there will be no difficulty in providing for these officers in a separate resolution; and I would propose one somewhat in this form, if the amendment now under consideration prevails :

Resolved, That Judges of Probate be elected for a term of five years, and for each and every five years after the first election.

I hope the amendment of the gentleman for Manchester may prevail. It is suggested that the term should be six, instead of five years, and I will present the amendment in that form if the amendment of the member for Manchester prevails.

Mr. SCHOULER. If the object of the gentleman for Manchester is merely to strike out, for the purpose of referring it to the Committee on the Judiciary, I have no particular objection, although I do not see why we may not as well act upon it at this time, as we can when we shall have another report. Now if I am radical on any point, it is on Judges of Probate; and I trust they will be elected by the people. Indeed, it was putting that in that makes me like the resolution so well; and if the Convention should decide not to make it general, the same as they have the secret ballot law and the tax, I pray that we may have it in the county of Suffolk, that we may elect them by the people.

I will state again, if the object is merely to strike it out to have it referred to another committee, for them to report upon it, I have no objection ; but if it is to take the matter from before the Convention, and have it kept in the Constitution that these men are to be appointed for life, I hope the amendment will not prevail.

Mr. BATES, of Plymouth. In looking at this matter, I can see no reason we may not as well consider it at this time as at any other. It is objected that the principal feature in the character of the office of the Judge of Probate is judicial. That may be so, and doubtless it is so. I would like to ask the gentleman for Manchester why that objection does not apply to County Commissioners. In many respects the

Mr. WILSON. I think we had better consider this matter where it is. The Judge of Probate is a county officer, occupying a judicial capacity, and I see no reason why the counties should not select their own officers. I undertake to say that if a Judge of Probate be a capable, honest and faithful officer, he will be re-elected as long as he shall wish to be elected. He is brought into contact with the whole people of the county. I should prefer, however, that the term should be longer than three years, and if it be in order, I will move to amend that resolution so that judges shall be elected by the people in their respective counties for the term of six years, and I hope that amendment will be concurred in.

The CHAIRMAN. The gentleman from Natick, (Mr. Wilson,) moves to amend the amendment proposed by the gentleman for Manchester, by inserting after the words “ Judges of Probate," the following words: “be elected every six years by the people, in their respective counties;” so that, if the amendment prevails, the whole resolution will read as follows:

assigned by the gentleman from Boston, Mr. Schouler,) was one which had great weight with me; to wit, that if the people should make a mistake—and I hold that the people very rarely do make a mistake-it would be in their power to correct it. But if the people should happen to elect a man who may be found incompetent, or unpleasant, or disagreeable in any way to those with whom he was brought into connection in business and he has to transact business with widows and orphans, and men of very little acquaintance with the probate law, and who want great assistance and information—if he should be found disagreeable to that class, he can be very easily displaced. I said that I was not particular as to the period of time. I think there is force in the remarks of the gentleman from Boston, and the suggestion which he has made was one that occurred to the Committee, and it prevailed in the Committee. The Judge of Probate can be re-elected without difficulty, and if he is found to be really a pleasant man, perfectly competent to transact the business, and renders himself agreeable to those with whom he comes in contact, he will be more likely to be re-elected than to have his place supplied by another. I am opposed to the amendment suggested by the gentleman from Natick. I think the resolution stands as it should. Give the people an opportunity to correct the errors, if they think there are any, and give them an opportunity to confirm the choice made, provided it is satisfactory.

Mr. MORTON, of Quincy. I wish only to say, that I hope the resolution may stand as it came from the Committee. They had every opportunity to examine the question, and see all its bearings on the whole subject, and I hope the amendment will not be adopted. I think three years is long enough for the tenure of office, and if the people then wish to re-elect the judge, they can do it.

Mr. WILSON. I have been requested, Mr. Chairman, by gentlemen, some of whom at first suggested to me to propose the amendment, to withdraw it now, and let the question be taken on the amendment of the gentleman for Manches

I made the motion with the hope that some gentleman, who did not like the Report of the Committee, might be content if the tenure of office of the judge of probate was longer than three years. For my own part I prefer three years—I think it long enough ; and the people of every county will re-elect a worthy man when they have one, and when they have not such a one, three years is long enough. I withdraw the motion to amend the amendment.

The CHAIRMAN. The question now recurs on the amendment of the gentleman for Manchester.

Mr. HALE, of Newton. I would inquire if there is any provision for filling vacancies, in case of the death of the incumbent within the three


Resolved, That Judges of Probate be elected every six years by the people, in their respective counties, and the Clerks of the Courts, Commissioners of Insolvency, District-Attorneys, Registers of Deeds, County Treasurers, and County Commissioners, be elected triennially by the people of their respective counties and districts.


Mr. SCHOULER. It seems to me the amendment of the gentleman from Natick is not in order. The motion made by the gentleman from Manchester was to strike out. If it is in order, I hope it will not pass. I think three years is long enough to have a bad Judge of Probate, and if we have a good one, we can re-elect him. If we put in a provision to elect only once in six years, the people will forget when the election comes about. A man, unless he lives to a very green old age, would not have a chance to vote but a few times in his life. I want a chance to vote as often as once in three years. If the amendment of the gentleman from Natick is in order, I hope it will not prevail.

Mr. BISHOP. The reason which has been

One o'clock having arrived, Mr. HOOPER, of Fall River, moved that the Committee rise, report progress, and ask leave to sit again.

The motion was agreed to, and the Committee rose, reported to

THE CONVENTION, And obtained leave to sit again.

The Convention then adjourned.

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