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Mr. MORTON. Oh, no! I do not wish to go up there. I am high enough now. [Laughter.]

Á MEMBER. I hope the honorable gentleman will deliver his speech twice then-first to one side of the house, and then to the other. [Laughter.]

Mr. MORTON. There is such an echo or reverberation in this hall, that my poor remarks will be repeated enough without my delivering them twice. [Laughter.]

Mr. DURGIN, of Wilmington, (in his scat.) I wish somebody would tell us what they are laughing at over there, so that we could laugh too.

[Mr. M. then took a position in front of the platform, with his face towards the members and his back towards the reporters, and continued his remarks nearly as follows:-]

I was about to say, Mr. President, that I regretted the circumstances which attended the bringing of this subject before the Convention. It had been announced that the town of Berlin had nominated its candidate, and it was informally circulated who that candidate was; and that gentleman is so much respected, and is entitled to so much respect, that I fear it will be exceedingly difficult for us to approach this subject and investigate it upon its legal basis without being influenced by considerations of this sort. But, Sir, we ought to approach every subject, without any regard to the party or the person who may be effected by it; and I am sorry that this proposition makes it necessary for me to submit my views in relation to this matter.

I understand that the whole proposition is, to give notice or information to the town of Berlin, that there is a vacancy from that town. Now what are the facts? It has been officially communicated to this Convention, through its President, that the person who was elected declines to accept the office. But, Sir, that gentleman informed this Convention that he had attended a meeting of the inhabitants of Berlin, and had announced to them his declination, and that they had voted to accept it. It is now proposed that we shall notify them that he has declined to serve. We are simply to give them notice of a fact which has already been communicated to them, and upon which they have acted. It seems to me Sir, that it would be idle, and beneath the dignity of this Convention to do such a thing as that; and unless it is intended by this act to convey an intimation, or to influence the action of the inhabitants of that town, it will be entirely and utterly unmeaning.

matter.

But I propose, Mr. President, to make a few remarks upon what seems to me to be the real and the important question in relation to this And as I said before, I approach the subject with a good deal of reluctance, because I entertain for the individual who may possibly be effected by it, the highest respect; but having formed my opinion, after due deliberation and examination, I feel bound to announce it, and to submit my reasons for it to this body. I was very sorry that the honorable Chairman of the Committee, (Mr. Allen,) in submitting his remarks, had not been a little more precise; for it is not to be supposed that a gentleman so learned, and with so judicial a mind as that gentleman possesses, would have undertaken to assume any authority, or to be governed merely by precedent. Perhaps both he and I have been taught to pay

a much regard to precedents as they deserve. I believe precedents should never go further than to give a construction where there is authority; but my objection here is, a want of authority. We are a delegated body; if we have any authority, it has been delegated to us. We are the agents, or the attorneys of the people of this Commonwealth; and if we have any power at all, it comes from them and is contained in the power of attorney which authorizes us to come here. If we have the power or authority to act in this matter, let any gentleman put his finger upon the passage in the Act and point it out. And if the authority cannot be found there, where do we get it? In acting upon this subject, we should be assuming power which has not been delegated to us. It would be a downright usurpation, and it would be more than a usurpation of power by a legislative body, because there is nobody behind us to make it right. There is no way of correcting the evil. If gentlemen assume the power to act in this matter-if the Convention is to send out precepts for new elections, and to admit individuals who may be chosen in this manner, they may assume power to send for the Common Council of the city of Boston, and bring them in here to act with us, and to participate in our deliberations, and nobody can counteract it -nobody can set it aside. The same principle is involved in either case.

We are a Committee appointed by the people to deliberate upon a certain subject, and report to the people of the Commonwealth; and whether we sit legally or illegally, whether we are here by right or by usurpation, if the people choose to adopt what we submit to them, it then becomes authority--not because it comes from a legally constituted body, but because the people choose to adopt it. No man will assert for a moment, I presume, that we have no limitation to our power but our will. Nobody can entertain such an-I will not say anti-republican, but-atrocious doctrine as that. It would even be repudiated by the Emperor of France or of Russia; for the Frenchman would be too cautious to avow such a doctrine, and I trust that the Czar also, although he might act upon it, would never dare to avow it openly. I hope therefore that this Convention will not assume any authority. If we have power to act in this case, it is contained in the Act by which we are convened, and now I ask gentlemen to point out the power in that Act. I can find no such power there, but on the contrary I can find a strong indication that no such power was intended to be given. All that has been brought to show the existence of such power, has been drawn from precedent and the practice of other bodies.

But, Sir, how are the precedents? I entirely deny the application of every single one of them. In the first place, allusion is made to the practice of the House of Representatives. Every body knows, Mr. President, that the House has general powers, and they pass all sorts of laws; and therefore they act freely in their legislative capacity, unless there is a restriction upon them. We know that they have power to impose fines upon such towns as neglect to choose members, and they issue precepts for elections. This is incidental to the general broad sweep of power which is conferred upon them; but we are in a different situation. We are one single body, convened for one single object. It is a great, a broad and an

[May 9th.

important object, but still we have no other; and we have no authority to attend to any other. Then again, the first Convention was instanced as a precedent. But if the first Convention was against us, the last Convention was in our favor in this respect. I deny, however, that the precedent of the first Convention has the least application. At that time they were in a revolution— they had no government but by acquiescence, and the circumstances of the case might justify it; and although it is contrary to the general doctrine, that an assembly should get power by impli cation, yet under the circumstances it might be derived from acquiescence. But what did that Convention do? Did they pass a law to direct the inhabitants to call meetings and elect delegates? No, Sir; they did no such thing. Did they assume any power on the subject? Not at all. Then what did they do? They merely passed a resolve requesting the selectmen of the several towns to call town meetings, to choose delegates to meet in the Convention. The great object was to have a Constitution. The authority given to the Convention was that the delegates from the several towns in the Commonwealth should proceed to consider the subject of a Constitution, and form one. "The several towns"that is, all the towns. But when the delegates came together, it was a question whether they could proceed, because several towns were not represented; and to obviate this difficulty, they sent precepts to all the vacant towns in the Commonwealth, in order to make up their body, so that they might proceed to draft a Constitution. I do not intend to go elaborately into the subject, and will not enlarge upon this point.

I ask now, Mr. President, from what source do we derive any power to act upon this subject? What is there granted to us from which we can infer, or from which we have a right to conclude, that any authority like this is delegated to us? The case of the last Convention is almost precisely parallel to this; the Act under which we are convened is almost verbatim with that under which the Convention of 1820, assembled, and the number of vacancies is almost exactly the same. One gentleman has stated that there are eighteen towns unrepresented; there were either seventeen or eighteen towns unrepresented in the last Convention. That Convention did not assume authority to fill these vacancies, but they went on immediately with the transaction of their business. That Convention was authorized to proceed, not when all the towns in the Commonwealth were represented, but when one hundred members, chosen according to law, should be present; and the latter Convention was probably composed of men as able, as learned and as patriotic, as the former. I believe, therefore, so far as precedents are applicable, that they are entirely against the issuing of such an order.

But, Mr. President, what is there in this instrument, from which we can infer this grant of power? I believe, Sir, no legislative principle is better established, or more truly democratic and republican in its character, (and I beg to be understood as using these terms in a general and not in a party sense,) than that all grants of power shall be strictly construed. It is one of the fundamental principles of legislation never to assume power beyond what is strictly conferred; and that being the case, I would ask the gentleman and this Committee, from what

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source they draw this power to issue a precept. I have not been able to find any part of the Act of 1852, which confers such power. It would take up too much of the time of the Convention to examine the Act in detail; if, however, the Committee will point out the precise clause to which they refer, and upon which their report is founded, I will submit my views on the subject.

In the first place, Sir, we are chosen and assembled here for the special purpose of revising the Constitution. That is our legitimate business. We are also, I admit, clothed with all the incidental power necessary to the carrying out of this primary object. Now, what is this incidental power? What is the origin and extent of it? When you have an express grant of power, you have also by implication a grant of everything else necessary to carry that power into effect; and that is all that can be implied from such a grant. What then is necessary to carry into effect the Act calling the Convention? Is it necessary to require that every town shall be represented in the Convention? The very Act itself provides that when one hundred members shall be present, the Convention shall proceed to organize. Such an inference then is wholly absurd. Only one hundred members are necessary to carry out the intention of the Act. Then under what clause will you place this power of issuing precepts? It may possibly be said that it is derived from the authority given to the Convention to judge of the election and eligibility of its own members. This is a power which I apprehend would have belonged to this body to the same extent if it had not been expressly conferred. It is the power of every delegated body to determine who shall be entitled to sit with them; every committee possesses this power. The first thing to be done, is to see that those only who are delegated to act with them, shall have the privilege of doing so. But, Mr. President, this certainly can confer no appointing power. It is not a power given to add to the committee, but to say merely that those who are not appointed shall not act with them, and that those who are appointed may act with them. The power of determining who is a member of this body is not a power to create or ratify the creation of other members, but only to determine who are members of the body elected in pursuance of the Act which authorized their election, and this Act derives its force directly from the people. The legislature only proposed the Act, and the people of the Commonwealth having sanctioned it by their votes, it became law. The legislature, therefore, were in precisely the same situation in regard to this Act that we are in reference to the Constitution we propose to amend. The legislature had the right of proposing the Act calling a Convention, and of submitting it to the people; but its whole force is derived from acceptance of the Act by the people of the Commonwealth themselves. How then can the Act, deriving its validity from an expression of the will of the people in accepting it, confer any authority for the creation of members of this Convention other than those chosen in pursuance of that Act?

Mr. President, in addressing the Convention upon this subject, I suppose that I am addressing A body whose opinions and predelictions are perhaps averse to the views I entertain. Sir, I have no desire other than to have the matter correctly decided. I have set forth briefly the grounds

upon which I base my conclusion, that the Act I hold in my hand does not confer upon this Convention the authority to send out precepts or notices for the election of persons in towns not now represented; but if the decision should be against me, I shall acquiesce as cheerfully as any member of the Convention, in the will of the majority.

Mr. BUTLER, of Lowell. Perhaps it would be better if I should wait until others of more experience in legislative bodies have said what they have to say upon this question, before I present my views. I only propose, now, to give to the Convention the results of some little examination I have given to this subject, in order that I may perform my duty as a member of the Committee. When I have done that, I think I shall have done all that can be expected.

This question is one of very grave importance. It is a question whether, by our acts here, we shall or not disfranchise at least eighteen towns of this Commonwealth, which, through inadvertency, or through the inability of their voters to agree upon candidates, or, as in the case of Berlin, by the resignation of the delegate chosen, are left without a representation in this body. I apprehend there will be no question of more importance touching the organization of this Convention.

In the case of the town of Berlin, no fault can be found with that town. It has once elected a delegate competent to sit in this body. It has performed its duty in that particular, and now the question comes to us" Shall Berlin be disfranchised?" Every one agrees, that if, by fair construction or implication we can give to Berlin her representative, every member of this Convention will be quite ready to do so. The ground taken by the very respectable gentleman from Taunton, (Mr. Morton,) is that we have not even the power to notify Berlin that her representative has resigned his seat upon this floor. The Report of the Committee is that we notify the town of Berlin of the resignation; and of course it is with the understanding that she may elect.

Now let us see if precedents will give us any light upon this subject. If you will examine, you will find that as early as 1781, '82, '83 and '84, after the adoption of the first Constitution, which gives the House of Representatives just the same, no greater, no other, and no different powers, than the Act under which we came together, by the ratification of the people, gives to us; they undertook to issue precepts whenever to them it seemed good. Almost the precise words which are used in the Constitution which gives to the House of Representatives the power to control its own members, and to fill vacancies, are used in this Act under which we are assembled. There is a little difference, but it is in our favor, and of course against the House of Representatives. In the 6th chap. art. 2d, the House of Representatives have express power given them to fill vacancies occasioned by appointments to the following offices, to wit: judge of the supreme judicial court, secretary, attorney-general, solicitor-general, treasurer, or receiver-general, judge of probate, commissioner-general, president of Harvard College, sheriff, clerk of the House of Representatives, register of probate, register of deeds, clerk of the inferior court of common pleas, clerk of the supreme judicial court, &c. And as it gives no other power to fill vacancies, it would seem by

[May 9th.

strong implication to take away the power of filling vacancies arising from other causes. In 1781 and 1782-and contemporaneous construction is always valuable-the House of Representatives issued precepts to towns where men were chosen whom they did not think competent to serve, to wit: the town of Deerfield elected a man who was found to hold correspondence with the enemy, and the House proceeded to turn him out, and issued a precept to that town to elect somebody more fit to be a member of a republican body. Soon after, another town elected a man who was not quite true to the republican standard, and he was served in the same way. So it went on from year to year. The House of Representatives, sometimes as often as three or four times in one year, elected members to fill vacancies that were occasioned by elections to the Council or the Senate, or by appointments of various kinds.

In 1828, the House directed their Committee on Elections to ask the opinion of the Supreme Court, upon the question, whether they had by implication farther power to fill vacancies, than that given to them in the 6th section. I have that opinion here, and in order that there may be no mistake, and that the Convention may see that the power delegated to us to fill vacancies is as great, if not greater than that delegated to the House of Representatives. I will read the opinion as it was then given by the Supreme Court. In regard to vancancies they say:

66

In regard to the other question, whether any vacancy can be filled in the House of Representatives, except such as are enumerated in the second article of the sixth chapter of the Constitution, we answer that what we understand to have been the practice, (viz., to fill vacancies made by an election of a member of the House of Representatives to the State Senate, or Council,) may be well supported by the principle of the Constitution, and by the analogy of certain cases provided for by that instrument."

Thereupon the Committee reported :

"First, that the vacancies can be filled in the House of Representatives, except (and other than) such as are enumerated in the second section of the sixth chapter of the Constitution."

We then have as the decision of the Supreme Court, that the House of Representatives have the power to issue precepts. Now the gentleman from Taunton, (Mr. Morton,) said that this power was given to them because they can make wholesome laws. With great deference, I must take issue with him there. Will the gentleman, from his experience, tell me what laws the House of Representatives can make, whether wholesome or unwholesome, without the consent of the Senate and of the Executive? All the power that they have, unless I am very much mistaken, is given to them in these words :

"The House of Representatives shall be judge of the returns, elections, and qualifications of its own members, as pointed out in the Constitution; shall choose their own Speaker; appoint their own officers; and settle the rules and orders of proceeding in their own House."

The power we have is found in these words:

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the transaction of business; and they shall proceed as soon as may be to organize themselves in Convention, by choosing a President and such other officers as they may deem expedient.”

Are not the words most precise? And yet the Supreme Court who gave the decision that I have alluded to authorizing the issue of precepts, was composed of the following very respectable gentlemen: Isaac Parker, Samuel Putnam, S. S. Wilde, and Marcus Morton. (Laughter.)

Now, Sir, so far as I have spoken, have I not been fortified with authority? I have been called upon to point out the law which grants to us the power to fill vacancies; and I pray the learned and able judge of the Supreme Court, who gave and signed this opinion, to point out the difference between that decision of the Supreme Court, and the opinion which I have given upon this occasion. That decision, upon which was based the Report of the Committee, declaring that vacancies can be filled by the House of Representatives, other than those enumerated in the 6th chapter and 2d article, settled the question in this Commonwealth; and it is now an every day's practice for the Speaker of the House to issue his precept for such purposes.

In the journal of the Convention of 1779 and 1780, page 51st, you will find this decision:

"A motion was then made and seconded, that a letter be wrote to the Selectmen of the town of Braintree, requesting them to convene the inhabitants, in order to the choice of one or more persons to represent them in this Convention, in the room of the Honorable JOHN ADAMS, Esq., who has sailed for Europe; whereupon, "Voted, That the Secretary be directed to write to the Selectmen of Braintree accordingly."

The following was written by the Secretary :— "BOSTON, 6th January, 1780. "Gentlemen:-The Hon. Mr. Adams, your delegate in the Convention for framing a new Constitution of government for this State, having sailed for Europe on an important appointment from Congress, and his seat being thereby vacated, I am directed by their vote of yesterday, to request of you, gentlemen, to convene the inhabitants of your place as soon as may be, in order to their electing and deputing one or more persons (as they shall see fit, wit.in the prescribed limitation of numbers) to represent them in the State Convention.

I am gentlemen,

Your very humble servant,
S. BARRETT, Secretary.
To the Selectmen of Braintree."

Here is almost the precise form which one would suppose would have been used. It is not an order, nor is it a demand; but it is a request, with an intimation, that when the delegate is clected he can take his place upon the floor. Now, will you allow me to ask what is there against this mode of procedure? In the Convention of 1820, a question was raised upon the election of the delegates from the town of Plymouth; whether or not their election was legal, as the inhabitants of that town did not hold their meeting upon the day provided by law; and the gentleman will find by referring to the debates upon that question, that one of the most able and learned gentlemen of that Convention gave it as his opinion that that Convention had authority to issue precepts. This is more than we now propose to do. We propose to issue a notice to the town of Berlin-and yet we take too much power

into our own hands,-says the gentleman from Taunton. We now propose, acting tenderly and carefully, to notify the town of Berlin, to give her an opportunity to choose a delegate to represent her in this Convention. Now, what objection do we find raised against that? It is said that it is an assumption of power which is not delegated to us. Perhaps, Mr. President, I misapprehend; but I differ with the gentleman from Taunton as to what the powers, the duties, and the rights of the Convention are. In the first place, it is contended that the Convention of 1779-80, was convened in revolutionary times, and therefore that the action of that Convention furnishes no precedent to us. Are we not now engaged in a revolution-a peaceful revolution by the ballot-box, and not by the sword and the bayonet? Sir, these are revolutionary times, so far as the government is concerned. We are assembled to revolutionize, so far as it may be judged expedient, the organic structure of our present Constitution.

We are told that we assume the power and that we are merely the agents and the attorneys of the people. Sir, we are the delegates of the people, chosen to act in their stead. We have the same power and the same right, within the scope of the business assigned to us, that they would have were they all convened in this Hall. In my judgment we have every incidental power necessary to enable us to do the business of the people. If the people were all assembled here in their primary capacity, they would surely have the power to notify unrepresented towns that they might participate in the business of the Convention, and, by implication, we have just the same powers, duties and necessities, no more and no less, conferred upon us, that the people would have were they here in their primary capacity. We are not acting as a court of referees. The power with which we are vested comes not from the legislative government; but the people, through the agency of the ballot-box, have given it to us. We are not men who have no interest in the matter, but have all the powers of the people whom we represent. If they chose, being asembled in their primary capacity, to add to their number by admitting a portion of the people at first not assembled with them, could they not do it? And if they now see fit to send men to act with us, have they not the power to do it. I look upon this whole proceeding of calling a convention as a mode of revolution by which we may peaceably accomplish that which in other countries is attained by the sword, and by force. Here, through the medium of the ballot-box, the people take to themselves the supreme control of the whole machinery of the government, and they determine who shall come here and act for them. By the Act under which we are called the Constitution is to be altered or amended by the delegates of the people ;-not of one-half or of twothirds-not of all excepting the town of Berlinbut the delegates of the whole people are to assemble to revise the Constitution; and that implies that the whole of the people are to be represented. Therefore, Sir, upon the precise language of this Act, upon its analogy with that in relation to the House of Representatives, and with no analogy against us-for in the Convention of 1820, the decision was not based upon the ground that the Convention had not the power to issue precepts or to send a notice, but simply that they

[May 9th.

did not choose to use it. Upon all the precedents then, upon cotemporaneous construction of the Constitution, and upon the decision of the Supreme Court, I find no difficulty whatever in entertaining the opinion that we have full power to issue notices to such towns as are not represented in this Convention. I trust that the gentleman from Taunton will allow me to say that I have spoken of this matter wholly irrespective of personal feelings with relation to the delegate probably to be elected by the town of Berlin. As to what has been done by the town of Berlin, I know not, and, with very great re-pect, I care much less. It is a matter entirely independent of this question. The question stands upon principle-it is whether we are to have Berlin represented upon this floor or not, without regard to the popularity or to the unpopularity of her delegate. It is with great deference that I say that I think the gentleman from Taunton is wrong in bringing in such a topic in this debate. I trust that I shall hear no more allusion made to the gentleman nominated for the town of Berlin. When he gets here the delegate from Taunton and the delegate from Berlin will be able to take very excellent care of each other.

Mr. MORTON, of Taunton. I have been so distinctly alluded to by the gentleman from Lowell, (Mr. Butler,) that it may, perhaps, be proper for me to make one word of explanation. In the first place, the gentleman has brought forward a decision of the Supreme Court -of that I had some little knowledge before he brought it forward-and has undertaken to found his argument upon it. If he was right in his statement of that decision, his argument is entitled to weight; but if he was wrong, the Convention will at once see what weight is to be attached to it.

Now, what was the case submitted to the court? It was not the question, in what cases the House of Representatives might fill vacancies or issue precepts; but the question was confined to one single point, and that was whether the House had a right to fill the vacancy caused by the election of one of its members to the council. The gentleman saw fit to read from the Report of the Committee on Elections. Whether he thought he was reading from the decision of the court or not, I do not know, I beg leave to read from their decision.

[The honorable gentleman then read from the decision of the Supreme Court, where it was stated that their opinion was confined to the case of a seat vacated by the interference of the constitutional authorities of the Commonwealth electing the incumbent to a scat in the council, in which case the vacancy would be supplied by the town he represented.]

Now if any argument can be obtained from that decision with regard to the case before us, I hope full weight will be given to it. The court does not give any opinion in any other case than the one there mentioned. If, indeed, any opinion can be drawn from their decision in relation to any other case, it must be an unfavorable one.

There is one other thing to which I wish to refer. The gentleman stated that the delegates of the people, all the delegates necessary to represent the people, were directed to come here. Now, does the Act say so? I think not. It provides in the first place for the election of delegates upon a certain day, and all of the towns have an oppor

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tunity to elect. The Act then proceeds to say that "the persons so elected, etc." Now, what does that mean? Why that the delegates so elected, and no others, shall assemble here in Convention. I merely state this point, and then will leave the matter to the decision of the Convention.

The gentleman also remarked that in a former legislature-the legislature of 1780, I believesome members elected were decided by the Convention not to be democratic enough to be admitted.

Mr. BUTLER. Not republican enough.

Mr. MORTON. Not republican enough? Stronger still! [Laughter.] Now, why the gentleman referred to that fact I do not know. If any application is to be made of it here, it must be that if any members of this Convention are not sufficiently republican, they should be refused a seat here. I hope the gentleman does not mean to make a personal application of that to the member elected by the town of Taunton. [Laughter.]

Mr. BARTLETT, of Boston. As this order was submitted somewhat at my request, it may be proper for me to say a word in justification, if that is at all necessary, of the view I entertain of the propriety of the course adopted by the Committee. I shall confine my remarks to the case of the town of Berlin. Gentlemen upon all sides, I think, have transcended the true limits of the discussion. When the question shall be brought before the Convention in regard to the propriety of notifying all towns of vacancies where the members elect have resigned, or where those towns have failed to elect, I may express a very different opinion from that which I entertain with regard to the case of the town of Berlin.

Confining ourselves simply to that question let us see what the practical issue is. Gentlemen will find that the true question is this. We are met together here for a session to be more or less protracted. The session of the last Convention was about 60 days; of the anterior one, with its adjournment over, much longer. I hope that no event will occur to deprive us of the presence of any of our associates here. But death may descend upon some of us. And I put it to gentlemen to decide upon principle, whether this Convention has or has not power, in the case of the death of any of its members, to call upon the towns represented by those members to fill the vacancies thus created. That broad principle is involved in this question. I am told that that power is not found in the Act calling us together. I admit that we have no authority in the letter of that Act, to issue a precept or order. A precept means order; an order is a direction, and I think we shall have enough to do to direct ourselves. As to directing others, I think we have no power to do so. But the proposition before us is this: has a town which has endeavored to fulfil its duties so as to take part in the formation of the fundamental law of the Commonwealth, lost its rights simply because the person elected fails to represent them? The answer on one side is, that unless you find in the letter of the Act calling us together, authority to confer this right upon that town, it is gone. Now I do not so construe the Act. Such a construction would be monstrous in its consequences, and I would avoid it if I could.

Now what does the Committee propose to do? To issue a notice to a town of this Commonwealth

that the person elected as its delegate has resigned his seat here. The question is proposed by gentlemen, where do the Committee find the power to notify the town, and behind that, after the notice is given and a member elected in pursuance of that notice, where do we find the power to admit him? The gentleman from Taunton, (Mr. Morton,) says that we shall seek in vain for that power. Now I think that through inadvertence the gentleman has failed to give weight to the precedents in the House of Representatives from their earliest date. The gentleman says that the House of Representatives may supply such vacancies, because they have legislative power. Now I respectfully submit that the honorable gentleman errs in saying that the House of Representatives has legislative power separate and apart from the co-operation of the Senate. The power exercised by the House of Representatives in cases like this, must be derived from some other source. It rests upon the primitive authority of that body, as supported by the decision of the Supreme Court of this Commonwealth, to supply vacancies occurring beyond the pale of the Constitution. That is the precise basis of the authority in the case before us. And, although I think the use of that authority in some cases, has been beyond its true range, yet it fully covers the case before us. The principle is that a constituent portion of the legislature, the House of Representatives, or the Senate, has, by virtue of an inherent right, the power to order a vacancy to be filled. It is upon that inherent right, and not upon any legislative power, that the Committee based its action. They find that there does exist in a body constituted as this Convention is, an inherent right in cases governed by established precedent, to notify those who send delegates here, when vacancies exist, of such fact. And this right reaches cases of death, resignation, and removal from any cause. Such is my view of the matter, and such I suppose to be the view of the Committee. They merely report, that the Convention shall do nothing more than to give the town of Berlin notice of the vacancy, leaving it to deal with its own inherent right to be represented in such manner as it may deem proper.

The gentleman from Taunton (Mr. Morton) seemed to lay some emphasis upon the fact that the gentleman elected from Berlin had, to some extent, notified that town of his resignation; and he therefore asks, why should the Convention notify them again? Now the course that that gentleman has thought proper to pursue, is not for this Convention to consider. I would ask is it not the usual practice for any deliberative body, to give notice through its own officers, of vacancies that may exist? And, as was properly suggested by the Chairman of this Committee, (Mr. Allen, of Worcester,) the utmost that the member elect from the town of Berlin could do was to notify that town of his intention to resign. Mr. MORTON, of Taunton. Did the gentleman ever hear of a declination to serve being sent in to the body of which the gentleman so declining had been elected a member? A resignation is a different thing.

Mr. BARTLETT. I can see no distinction between the two cases; they are precisely the same, as they equally deprive the body of the service of its member.

Mr. PERKINS, of Malden. I had not intended to speak at all upon this subject, but after

[May 9th.

having heard the arguments that have been brought forward here, I desire to say a few words.

The people agreed to meet on a certain day to elect delegates to this Convention. Some of the towns failed to elect. Now I think that those towns have a right to elect any time before this Convention finally adjourns and to send their members elect up here and see if we will admit them. I know of no law against their doing so. If I lived in a town where they had failed to elect a delegate, I should certainly urge upon them to elect and send up here, so many men as they had at first a right to send. We could then say whether the men so elected should be admitted here. It is to be presumed that every town in this Commonwealth knows its rights in reference to being represented here. The town of Berlin knows its rights and can choose its member and send him up here, whether we notify them of the existing vacancy or not. To be sure we are to judge of the election and returns of our members, but I for one would be in favor of admitting a member so elected, and that I think will be the decision of this Convention. I have no objection to the town of Berlin and all other towns, being notified of the vacancies which exist in their representation. That would be but an act of courtesy. I think, however, they ought to know their right to have a voice in this Convention, and to exercise it at any time before this Convention adjourns finally.

Mr. HATHAWAY, of Freetown. I confess I have come to a very different conclusion from that of my friend from Taunton, (Mr. Morton,) in reference to this matter. I am pleased that the Committee has kept the matters referred to them separate and distinct from each other, to wit, the case of the town of Berlin where the delegate declined to serve, and the other towns where they failed to elect. I think that there are marked and manifest distinctions between the two cases, and, therefore, they should be kept entirely sepa

rate.

Now in reference to the matter of issuing a precept, I agree entirely with the gentleman from Boston, (Mr. Bartlett,) that this body has no power to issue a precept. A precept, as has been well said, implies an order, a command, and that implication presupposes a power to carry out that command and that order. Now we have no power to carry out or enforce any order, and hence the Report of the Committee is precisely what it ought to be, a mere statement to the town of Berlin of the fact that they are unrepresented here, and the town can then exercise its right of being represented or unrepresented, as it may see proper. Now I take the ground that the examples produced of the action of legislative bodies, can have nothing to do with our action in reference to the case of the town of Berlin. The House of Representatives are constituted under the Constitution; they have a law under which to act, and I think have a right, under the first chapter, third section of the second article of the Constitution to issue precepts for new elections in certain cases. And if gentlemen will look at the last clause but one of that chapter they will see that the House of Representatives have power to enforce their precept under certain circumstances. The clause is as follows:

"And the House of Representatives shall have

Monday,]

power, from time to time, to impose fines upon such towns as shall neglect to choose and return members to the same, agreeably to this Constitution."

Now suppose that a town should fail to elect a representative. I suppose that under this clause of the Constitution, the House of Representatives would have the right to issue a precept to fill the vacancy. Suppose that the town had, in fact, sent a representative, and he had been chosen a councillor or appointed to any other office incompatible with that of representative. Then the House of Representatives would not have the power, and it would be impossible, as all must see, to impose a fine upon that town for not being represented. Then comes up the question, has not a town a right to be represented although the one it may have elected should have virtually resigned? The accepting of an office incompatible with that of representative is a virtual resignation, as that acceptance depends upon the will of the person so appointed to office. He cannot hold both, and if he accepts the one he virtually resigns the other.

If I am right, then virtually a resignation depends merely upon the will of the person. How does the case stand with regard to the town of Berlin? That town has done everything in its power to be represented by a delegate upon the floor of this Convention. Now, if under the Act by which we are convened, there had been an office which was incompatible with holding a seat here, and he had been appointed to that office, and chosen to accept it, it would have been impossible for him to hold a seat here, and the seat would have been vacated. Being a voluntary act on his part, it would only amount to a resignation. And if under such a case as that the House has power to issue a precept, we have no power to do so, because there is no law authorizing it. But why should the town of Berlin be deprived of a delegate in consequence of the will of an individual, when the town has done all that it could do? I would by no means have the representation of the town of Berlin, or of any other town, depend upon the whim or the caprice of any body; and in this remark I would not be understood as saying that the gentleman alluded to resigned his seat in consequence of any whim or caprice, but simply that the town of Berlin, having expressed a wish to be represented, and the person chosen having voluntarily resigned his seat, it does seem to me that there is in that town an inherent right to have a representative here. I do not look for this authority to the precedent which was set by the Convention of 1780, or to the fact that when a seat becomes vacant in the House of Representatives through incompatibility on account of holding office, they issue a precept for a new election; but, in my judgment, it arises from the necessity of the case, growing out of the inherent right of a town to be represented.

Mr. PARKER, of Cambridge. Mr. President, I move that the further consideration of this subject be postponed until to-morrow. I make this motion because reference has been made to the opinion of the Supreme Court of this Commonwealth upon the subject of filling vacancies in the House of Representatives; and I should like to have an opportunity of examining that opinion. If I understood the representation made of it by the gentleman from Lowell, (Mr. Butler,) it was based, in part at least, upon the authority of the

House of Representatives to judge of the election of their members; but I supposed from the subsequent remarks, that this was not the basis of it. If that is the basis of it, it certainly has a very important bearing upon the case which we are now considering; but if not, it becomes a question how far that opinion is applicable to the pre

sent case.

Mr. BUTLER. I trust, Mr. President, that the subject will not be postponed, so as to occupy another day in its discussion. If the gentleman from Cambridge wishes to see the decision of the Supreme Court, I have it here, for I did not speak without book. For fear that it might be supposed that I had misrepresented that opinion, I brought the book with me, that the decision might be read; and I will now read from it to illustrate my position, which was, that the Supreme Court have decided that the House of Representatives could fill vacancies other than those which they were by the express terms of the Constitution authorized to fill; and I remarked, that the only power which was given to them by the Constitution was the power to judge of the elections and returns of their own members. Now it is here put upon this precise ground. I will read it:

"It was evidently the intent of the framers of the Constitution to recognize the right of towns whose representatives had been called by the constituted authorities to the exercise of some other public duty, inconsistent with their legislative functions, to supply their place by a new election; as will appear by the numerous cases provided for in the article of the constitution cited in the question proposed. It was probably not contemplated that seats would be vacated by a legislative election to another department of the government, and therefore that case is not provided for. But it is to be considered that every town having the number of polls required by the Constitution, has a right to be represented in the popular branch of the legislature; and that this is a valuable and important right, of which the inhabitants ought not to be deprived without their own consent. In the case supposed, the inhabitants of the town have signified their intent and desire to avail themselves of this right, by the actual election of a member."

I hope that another day of the valuable time of this Convention will not be occupied in the discussion of this subject, and that the motion to postpone will not prevail.

The question being taken, the motion to postpone was not agreed to.

Mr. PARKER, of Cambridge. I presume, Mr. President, that there will be no question raised as to the propriety of the course which has been pursued by the gentleman from Natick, (Mr. Wilson.) It appears that he had the honor of being elected by two constituencies, the constituency of Natick, and the constituency of Berlin. It is very apparent that he could not perform the duties of member from both of those places; for whatever might be the case otherwise, when any subject should come to a vote, I suppose it is beyond all question that a member could not cast two votes, and of course, without any resignation or declination, or anything to manifest that he no longer claimed or professed to act for both, one of those constituencies must have been unrepresented, at least so far as voting was concerned.

A

Under

these circumstances, it seems to me that he has very properly notified the constituency of Berlin, that he declines to act as their representative in

[May 9th.

this Convention, and has laid the matter before this body, that such action may be taken thereon as shall be found expedient. And now two questions seem to arise. One is, whether any action can rightfully be taken for the purpose of filling the vacancy, and having another delegate sent to represent the town of Berlin; and if such action may be taken, the question occurs upon the form, whether it should be by a writ, or by a notice that we will admit the delegate whom the town shall elect, and who shall present himself here claiming the right to a seat by virtue of that election. In relation to this last question, I have no difficulty. So far as the mere form is concerned, it seems to me to be altogether immaterial. I have not been persuaded by the remarks of the gentlemen who have preceded me, that it would not be competent, if a vacancy exists which can rightfully be filled, for the Convention to issue a writ or precept to the town of Berlin to elect a member; but a mere notice to that town that a vacancy exists, would be equally effective of that object, in my opinion. If the town of Berlin have a right, upon the resignation of their delegate, to proceed to a further election, they would have the same right upon receiving notice that a delegate coming here and claiming a seat in the Convention would be admitted as a matter of right. And if a writ should be issued, I do not understand that it would confer any power upon the town; it would be nothing more than issuing a precept in that particular form, to signify to the town that they might elect, and that their delegate would be admitted when he presented himself. As a matter of form, therefore, I think it is altogether immaterial whether it be a writ or a notice; the main question is, as to the matter of right to take action upon the matter.

We are to consider this question, Mr. President, solely as a question of right. It is not the question as to what may be the personal wishes of members of this Convention-not a matter of courtesy, as to whether it would be courteous to receive the delegate they might elect, but the question whether the town of Berlin has the right, or whether the Convention, in any form whatever, can give the right, so that the town can elect a delegate to sit here. If it was a matter of courtesy or of personal wishes, I suppose there would be no room for disagreement among the members of this body. I am not aware of any reason whatever, why any member of this Convention should desire the town of Berlin to remain unrepresented. But as it comes to us as a question of right, we are called upon to determine what the right is.

If we are in a state of revolution-peaceful and bloodless, but still a revolution-I must say that I know not what limit there is to the power of a revolution when it is brought into exercise; and if the question is to be put upon that basis, as I understood the gentleman from Lowell to put it, I shall not deny the power of a revolution. The town of Berlin may be represented, and any body else may be admitted as a delegate whom the people may choose to send here. If we are a revolutionary body, acting without a constitution or anything of that nature to guide us-if citizens are to come here and act their pleasure, without regard to the manner in which they are proceeding, they may admit one person or another to take part in that revolution. The whole community may take part in it; and the question would come up,