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Monday,]

VACANCIES IN THE CONVENTION. - PARKER-BARTLETT.

where are you to find room for them to assemble and carry on their operations? Sir, it is well known that the argument has been advanced that this Convention was revolutionary in its character, because the Constitution provided no such mode in which a convention could legally assemble; that there was one mode provided by the Constitution for the revision of that instrument, and any other mode was in its nature revolutionary. For myself, personally, I do not entertain that opinion. I believe this Convention to have been lawfully assembled, and that it is bound to proceed according to law; and that when it departs from law knowingly and understandingly, then will its proceedings be revolutionary in their nature. If we are here assembled according to law and under law, we are bound to proceed upon our best judgment, in accordance with the provisions of law; and holding, Sir, as I do, that we are thus assembled, the inquiry comes up, are we authorized to receive a delegate from a town which is now unrepresented here, merely because it has no delegate? What authority has the town of Berlin to elect another delegate, or what authority have we to receive the delegate whom they may send here? Where is the authority to be derived? Where is it to be found?

I suppose, Mr. President, that if authority is to be found at all, it will be found in one of two sources. It is based upon one of two foundations. It is either drawn from precedent and usagesomething to show that because a thing has been done before, therefore it may be done again-or we must find it in some law which has passed the legislature and been adopted by the people, and which thus forms a guide for the action of this Convention. Is it to be found in usage and precedent? Reference has been made to the fact that the House of Representatives of this Commonwealth have heretofore issued precepts, and have thus appeared to recognize the right of towns which were unrepresented, by reason of resignation or otherwise, to elect a representative, and the right of that representative to hold a seat. I was desirous of ascertaining the precise ground upon which this right was based with regard to towns which have failed to elect, or whose representatives, from resignation, appointment to office, death or otherwise, fail to attend. When I asked that this matter might be postponed, I understood that this right was based upon an opinion of the Supreme Court of this Commonwealth, which was founded upon the power that the House of Representatives have to judge of the election of their own members. If that is the basis of it, the same principle might apply to the law under which this Convention have assembled. I did not intend to say, nor did my language bear the construction. that the gentleman from Lowell had misrepresented the matter.

Mr. BUTLER. I did not charge the gentleman with having said so.

Mr. PARKER. I supposed the gentleman thought I intended to charge him with misrepresentation, and I wished to disclaim that. It was neither my language nor my intention to attribute to him any such thing. As I understood the decision of the Supreme Court in sanctioning the right to receive a representative in the room of another who had resigned, it is not based upon that ground. Then upon what ground is it based? I would have been glad to have a post

ponement of the subject until to-morrow, in order to have an opportunity of examining it more fully; but it is the pleasure of the Convention to proceed now, and I must, therefore, form my opinion with such light as I have. I presume this right may be rested upon one of two grounds. First, that there is some other provision in the Constitution-not that which gives the House of Representatives the right to judge of the election of its own members, but some other provision in the Constitution-by which the House have authority to pass laws and ordinances in general, and which may be supposed to include the right to issue precepts; but the other ground, and the one upon which I should be most inclined to place it, is the ground of parliamentary usage, derived from the fact that the House of Commons of Great Britain exercise the power and the right of issuing writs for the purpose of filling vacancies that may occur in that body. It may well be justified, then, as a matter of parliamentary usage, upon the ground that the House of Representatives of this Commonwealth stands for all purposes of that kind in the same situation with the House of Commons under the English constitution; and they may act, therefore, as it is well known that they do act, in a great measure, upon the usages and the rules of the House of Commons. If that be the true ground of it, Sir, and if there be no constitutional provision upon which it rests, I think it will readily be seen that it by no means follows that this Convention can exercise such a power. This Convention, as I apprehend, does not stand in the position of the House of Commons of England, or the House of Representatives of this Commonwealth. It is not a legislative body, in the sense in which these houses are; it may be said to have legislative power in one sense, because the acts of the Convention when completed and submitted to the people, if approved by them, will constitute the paramount law. This gives it a somewhat legislative character, but it is not such a kind of legislative body as the House of Representatives is, since it does not act in concurrence with any other body.

Again, Sir, the House of Representatives stands upon the same ground with the House of Commons; but the Senate does not, although it is equally a legislative body with the House. I refer to this merely to show that this power to fill vacancies is not inherent in legislative bodies, but only in a particular kind of legislative bodies. The House of Lords does not fill vacancies, except in the case of the representative peers of Scotland; and the Senate in this Commonwealth does not undertake to fill vacancies in this way, or recognize the right to do so. It may be said that they act under a special provision of the Constitution, I may reply by saying that this Convention acts under the special law under which we are assembled here; and we are to look to that Act for our power. If it is involved there, we may exercise it; but it is not found there in any express provision. Is it found there by construction of any provision? I have heard no other provision referred to, except the provision that this body shall judge of the elections and returns of its own members; and it appears to me that this provision does not apply to a case of this kind. This provision gives the Convention the power of judgment in relation to those members who claim to have been elected according to its provisions; and although it is undoubtedly in the power of the Convention

[May 9th.

to admit any persons who come here claiming to be members under that Act, yet that power is only to be exercised rightfully, upon the judgment of members of this Convention with regard to cases which come under the provisions of the Act. It is not in itself a delegation of power other than the power of the Convention to judge of the returns according to law, giving no authority whatever to look beyond the provisions of the Act. If it should be extended beyond that, where would it lead? In that case, it might not only admit persons chosen to fill vacancies, but any body and every body who should come here claiming to have been elected by half a dozen people, might be admitted, if members saw fit. Sir, that construction cannot be maintained.

Another ground is, that, although the power is not expressly given in words, although it is not found in any particular provision, yet it is incident to the powers given. Here is a grant of power by this Act, and an acceptance of it by the people. Delegates are elected under it to do certain things. As an incident to the powers thus given, they may exercise any other powers necessary to carry those particular powers into effect. If I could regard this as being necessary in order to carry into effect the powers which were conferred upon the Convention, I should have no hesitation; but I suppose it cannot be maintained upon that ground.

These are all the grounds, it appears to me, upon which this can be maintained. If there is any ground which is tenable, it seems to me to be that of early usage in the proceedings of the House of Representatives, and of former Conventions. The first Convention, it is said, exercised that power in two cases. On the other hand it is said, that the Convention of 1820 declined to exercise that power. I have not had an opportunity to compare the cases which have been spoken of, in order to see wherein they differ. Unless they do differ, as I infer that they do, from the remarks of the gentleman from Boston, and I should like to have time to examine them.

Mr. BARTLETT, (interposing.) Will the gentleman allow me to explain. I said, in reply to the gentleman from Worcester, (Mr. Davis,) who said that the precedents in the Convention of 1780, were in favor of the adoption of the order, that I had understood, not that I was certain, that the action in the Convention of 1820 upon the same question had been the reverse. I also added that it might be that there was some difference in the cases, or in the powers of the two Conventions, which caused this diversity in their action. I desired time to examine it. We have no means of referring to the journal of the Convention of 1820; for it was never deposited in the archives; so that we have only to refer to the report of the proceedings and debates. I beg leave now to say, that with such care as I have been able to bestow, I do not find the question distinctly raised in the Convention of 1820. It seems to have arisen incidentally.

Mr. PARKER, resumed. As I was about to say, the cases presented to the Convention of 1820, may not have been identical with those presented in the Convention of 1780. I should have been glad to ascertain how that fact was, for the purpose of settling this as a question of precedent. But, as has before been suggested, the journal is not to be found, and we have no sufficient means of determining this point, unless there should be

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Monday,]

VACANCIES IN THE CONVENTION. — UPTON — PIERSON — SPRAGUE — BUTLER.

some gentleman here who was present upon the occasion, and who could inform us from his recollection what was the true question before the Convention of 1820. If the Convention of 1780 decided this question one way, and the Convension of 1820 decided the same question the other way, there is no precedent to be derived from those proceedings taken together which can guide us at this time.

If this is to be sustained at all, it seems to me that it must be upon the ground that this Convention is a legislative body, that it is the parlia mentary usage of the House of Commons and of the House of Lords, and that the House of Representatives of this State, following the usage in England, has repeatedly acted upon the subject of vacancies. Here again, we are not in the possession of that information which we might have by further delay. But not to detain the Convention longer, the question presenting itself to me as it does at present, as a question of right and not of courtesy, as a question of law and not of personal wishes, although I should be most happy to vote in favor of this motion, as at present advised, I must vote against it, upon the ground that I do not find any power existing here to receive delegates, in whatever form or shape, a notice or writ of election should be had. Disagreeing, as I very probably shall, from the majority of the Convention upon this matter, I thought it due to myself to present the views which influence my own mind in relation to it.

Mr. UPTON, of Boston. This question, Sir, has been discussed by gentlemen eminent in the law; but there is one point upon which my mind has not been satisfied, and which has not been discussed as I could wish. It is this simple point. If you issue an order or notice to the town of Berlin that the gentleman elected by that town as a delegate to this Convention declines the appointment, upon what authority will the town of Berlin call their town meeting? They cannot call it under the Act of the legislature calling this Convention. They cannot call it under any precept of this Convention. This Convention does not presume to issue any precept to that town. If it is proposed here as a mere matter of courtesy, to give the town of Berlin an opportunity to send to this Convention another delegate; and if the majority of the Convention intend to take a fair course, I should hope that the same courtesy might be extended to every other town in this Commonwealth. If it is a question of law, a question of right, then in my opinion there is no legal authority for the town of Berlin to call a town meeting; and if it is a question of courtesy, we should extend the same courtesy to every town in the Commonwealth which is not now represented in this Convention.

Mr. LIVERMORE, of Cambridge. For the purpose of offering an order relative to the hour of our future meetings, as some gentlemen desire to leave, I move that for the present this subject be laid upon the table.

The motion was not agreed to.

Mr. PIERSON, of Lawrence. I understand the question before the Convention to be upon the acceptance of the Report. I understand the Report to recommend that we notify the town of Berlin that the member elect for that town has resigned. I think there can be no doubt with regard to the power of the Convention to assume the authority of notifying the town that their

delegate has resigned. This does not necessarily bring into discussion the points which we shall be called upon to decide in relation to the member when he comes and presents himself from that town. Nor does it necessarily bring into discussion the question whether we have a right to issue a precept to that town. I am free, for one, to confess that I do not believe this Convention has the power to issue a precept, or the right to order a town to meet and elect a member to this Convention; but I know of nothing in the Constitution or elsewhere which denies us the right to notify a town that a member has deceased or has declined to serve. It is a mere act of courtesy and nothing more. That I believe we have a perfect right to do, without violating either the letter or the spirit of the Constitution. I hope that the Report of the Committee will be agreed to by the Convention, and that we shall thereby save time.

Mr. SPRAGUE, of Boston, said, that he had so great a respect for the opinions of the gentlemen from Taunton, (Judge Morton,) and from Cambridge, (Judge Parker,) that he was induced to suggest one view for their consideration and that of the Convention, which he had not heard presented. He agreed with them that the Act of the legislature, by virtue of which the Convention was assembled, was to be their guide. It was the charter, the organic law of that body under which they must act, and they had no right to go beyond its true meaning. They must be governed by the intention of those who made the law, as manifested by a true interpretation, whether it be considered as deriving its force merely from the legislature, or also from adoption by the people. But in order to ascertain what that interpretation should be, it was proper to look to an established and known usage. If similar language had been used in another organic law and had received for many years a practical construction, which was generally known, it may well be supposed that the legislature meant to sanction that construction when they used similar language. If he recollected aright, the Constitution provided that Representatives should be elected on the second Monday of November, allowing an adjournment of one or two days, or if a second meeting should be necessary, it should he held on the fourth Monday of November. He understood that ever since the adoption of the Constitution the practice had been thus: if a town had elected a member on either of those days, and his seat had become vacant from any cause, the town had been permitted to fill the vacancy by a new election. But if the town had not elected a member on either of those days, they had never been permitted to elect on a subsequent day, but remained unrepresented. This was a practical construction well known throughout the Commonwealth. When, therefore, the legislature in framing the organic law of this Convention declared in similar language that its members should be chosen on the first Monday of March, it may well be supposed that they and the people, so far as they adopted it, intended that it should have the same meaning and the same construction which they knew had been given to a similar provision in the Constitution. This he believed to be a proper rule of interpretation as to all statutes and all instruments. If this view was correct, the town of Berlin should be allowed to fill the vacancy

[May 9th.

made by the resignation of her delegate, but the towns which had made no choice could not now be permitted to send delegates to the Convention. Something had been said in the course of the debate as to the power of the Convention to go beyond the Act of the legislature and receive such persons as members as they may see fit, whether elected pursuant to the Act or not. In one sense they might possess that power, but such a power was not a legal power. The Convention is selfcontrolled. No other body can coerce them. But if they transcend the limits prescribed by the charter which gave them existence, if they knowingly permit those to participate in ◄eir deliberations and action who are not authorized by the law, then they will cease to be the Convention authorized by the people and become a revolutionary body, guided by no rule and governed by no law but their own will. Whether any member of the Convention would be willing to assume such an attitude and such a responsibility, must be left to his own judgment. The time had not arrived for discussing that question.

The question being taken, the order was agreed to.

Mr. BUTLER, of Lowell, moved the following order:-

"Ordered, That the Secretary of this Convention, in conveying the notice to the town of Berlin that has been ordered by the Convention, adopt the following form:

}

HALL OF THE CONSTITUTIONAL CONVENTION, Boston, May, 1853. To the Selectmen of the Town of Berlin: GENTLEMEN: The Hon. Henry Wilson, late delegate for Berlin in the Convention for revising the Constitution, having tendered his resignation as such delegate, which has been accepted by the Convention, and his seat being thereby vacated, I am directed, by a vote of the Convention, to request you to convene the qualified electors of your town, as soon as may be with a due regard to notice, in order to their electing and deputing a delegate to represent them in this Convention, in the manner prescribed by the second section of the Act calling the Convention, adopted by the people on the second Monday in November, A. D. 1852.

I am very respectfully,

Your Obedient Servant,
[Signed by the Secretary.]

Mr. BUTLER stated that the form had been copied from the form used by the Convention in 1780, in notifying the town of Braintree, when John Adams sailed for Europe.

At the request of Mr. CROWNINSHIELD, the order was laid over under the rule.

Time and Place of Meeting.

Mr. LIVERMORE, of Cambridge, moved the following order:

Ordered, That on and after to-morrow, the Convention will meet daily at the State House, at three o'clock in the afternoon, until otherwise ordered.

Mr. HOOD, of Lynn, moved to amend by inserting the words "half past" before the words "three o'clock."

Mr. PIERSON, of Lawrence, suggested that meeting at three o'clock instead of half past three,

Tuesday,]

STANDING COMMITTEES, &c. - HOOD-BROWN- HOOPER — BRIGGS.

would accommodate members who wished to return home at night in the cars.

Mr. HOOD explained that he had understood that the House was to continue in session until three o'clock; but learning that it was their intention to vacate the Hall in season for the Convention to meet at that hour, he would withdraw the motion to amend.

The order was agreed to.

Committee on Vacancies.

Mr. Sumner, of Otis, having resigned, Mr. Hathaway, of Freetown, was appointed upon the Special Committee on Vacancies.

Constitutions of the several States.

The Convention proceeded to the consideration of the order submitted by Mr. BROWN, of Dracut, relative to furnishing members with A. S. Barnes & Co's edition of the Constitutions of the several States in the Union.

Mr. BROWN stated that the object of the order was to bring before the Convention all the light which could be obtained from the experience of the other States. The work would be furnished at $1 50 per copy, and having been revised up to the year 1852, contained the latest information. The order was agreed to.

Plurality Elections.

Mr. HOOPER, of Fall River, submitted the following resolution :

Resolved, That it is expedient so to revise the Constitution, that in all elections by the people under it, the person having the highest number of votes shall be deemed and declared to be elected.

Mr. HOOPER moved its reference to a select committee, to consist of five members.

Mr. BRIGGS. I move that it be laid upon the table. When the committees are organized, there will probably be some one to which it can be referred.

The motion was agreed to, and the resolution lies upon the table.

The PRESIDENT stated that he would announce the Committees upon to-morrow.

On motion, at twenty minutes before two o'clock, the Convention adjourned.

TUESDAY, May 10, 1853.

Mr. EARLE presented the credentials of William James, of South Scituate, and of George K. Vinton, of Southbridge; which were referred to the Committee on Elections.

On motion by Mr. BATES, of Plymouth,

Ordered, That a committee of five be appointed to act in conjunction with the Messenger in assigning seats to members of the Convention, as contemplated by the 19th Rule.

A communication was received from the Speaker of the House of Representatives, accompanied by the following order, which had been adopted in that body:-

"Ordered, That the members of the Constitutional Convention be invited during its session to avail themselves of such privileges of the library of the Commonwealth as the members of the legislature are entitled to.”

Mr. ABBOTT, of Lowell, presented the me

morial of James Russell, of West Cambridge, claiming a seat in the Convention; which was referred to the Committee on Elections..

STANDING COMMITTEES.

The President appointed the following Committees on the various propositions for the amendment of the Constitution:

On so much of the Constitution as is contained in the Preamble and Declaration of RightsMessrs. Sumner, for Marshfield, Parker, of Cambridge, Hallett, for Wilbraham, Hillard, of Boston, Allen, of Worcester, Gray, of Boston, Huntington, of Salem, Rockwell, of Pittsfield, Dana, for Manchester, Bell, of Somerville, Williams of Taunton, Burlingame, for Northborough, Marcy, of Greenwich.

On so much of the Constitution as relates to the Frame of Government, Elections by the Legislature, &c.

Messrs. Allen, of Worcester, Upham, of Salem, Wilkinson, of Dedham, Appleton, of Boston, Gourgas, of Concord, Hale, of Bridgewater, Morton, of Fairhaven, Plunkett, of Adams, Davis, of Plymouth, Livermore, of Cambridge, Bliss, of Longmeadow, Nash, of Williamsburg, Hoyt, of Decrfield.

On so much of the Constitution as relates to the Senate

Messrs. Wilson, of Natick, Beach, of Springfield, Stevenson, of Boston, Morton, of Andover, Thompson, of Charlestown, Morey, of Boston, Keyes, for Abington, Hobart, of Foxboro,' Howland, of New Bedford, Whitney, of Conway, Hooper, of Fall River, Conkey, of Amherst, Dawes, of Adams, Alley, of Lynn, Pomroy, of Rowe, Waters, of Millbury, James, of So. Scituate, French, of Canton, Tilton, of Chilmark, Crowell, of Dennis, Easton, of Nantucket.

On so much of the Constitution as relates to the House of Representatives.

Messrs. Griswold, for Erving, Butler, of Lowell, Hale, of Boston, Burlingame, for Northboro,' Alvord, for Montague, Schouler, of Boston, Earle, of Worcester, Bullock, of Royalston, Sargent, of Cambridge, Warner, of Wrentham, Kinsman, of Newburyport, Ide, of Attleboro,' Eaton, of Pelham, Parsons, of Sandisfield, Hurlburt, of Lee, Wood, of Middleboro,' Aspinwall, of Brookline, Weeks, of Harwich, Carter, of Chicopee, Meader, of Nantucket, Norton, of Tisbury.

On so much of the Constitution as relates to the Governor

Messrs. Davis, of Worcester, Crowninshield, of Boston, Brown, of Dracut, Hopkinson, of Boston, Tyler, of Pawtucket, Loud, of Dorchester, Denison, of Coleraine, Bradbury, of Newton, Boutwell, of Lunenburg, Huntington, of Becket, Stephens of Gloucester, Miller, of Wareham, Langdon, of Monterey.

On so much of the Constitution as relates to the Militia

Messrs. Oliver, of Lawrence, Chapin, of Springfield, Underwood, of Milford, Tyler, of Boston, Churchill, of Milton, Prince, of Winchester, Abbott, of Danvers, Strong, of Easthampton, Bumpus, of Plympton, Stacy, of Gloucester, Fellows, of Lowell, Winn, of Woburn, Swain, of Nantucket.

[May 10th.

On so much of the Constitution as relates to the Lieutenant-Governor

Messrs. Cushman, of Bernardston, Wilkins, of Boston, Graves, of Lowell, Storrow, of Lawrence, Gardner, of Seekonk, Cole, of Cheshire, Tileston, of Dorchester, Bullen, of Northampton, Cooledge, of North Chelsea, Bigelow, of Grafton, Eames, of Washington, Crosby, of Orleans, Perkins, of North Bridgewater.

On so much of the Constitution as relates to the Council

Messrs. Hallett, for Wilbraham, Giles, of Boston, DeWitt, of Oxford, Walcott, of Salem, Wales, of Randolph, Adams, of Lowell, Brown, of Medway, Buck, of Lanesboro', Kuhn, of Boston, Hobart, of East Bridgewater, Packer, of Leyden, Curtis, of Egremont, Durgin, of Wilmington.

On so much of the Constitution as relates to the Secretary and Treasurer, and the Attorney-General, Solicitor-General, Sheriffs, Coroners, Registers of Probate, and Notaries Public

Messrs. Bishop, of Lenox, Weston, of Duxbury, Eliot, of Boston, Hall, of Haverhill, Bates, of Plymouth, Perkins, of Malden, Brinley, of Boston, Paine, of Brewster, Walker, of Roxbury, Eaton, of South Reading, Orne, of Marblehead, Penniman, of Chelsea, Knight, of Peru.

On so much of the Constitution as relates to the Judiciary

Messrs. Morton, of Taunton, Choate, of Boston, Huntington, of Northampton, Bartlett, of Boston, Bishop, of Lenox, Greenleaf, of Cambridge, Sumner, of Otis, Lord, of Salem, Abbott, of Lowell, Chapin, of Worcester, Hathaway, of Freetown, Lowell, of Roxbury, Leland, of Holliston.

On so much of the Constitution as relates to the University at Cambridge

Messrs. Knowlton, of Worcester, Sprague, of Boston, Sumner, of Otis, Briggs, of Pittsfield, Huntington, of Northampton, Beach, of Spring-. field, Putnam, of Roxbury, Braman, of Danvers, Train, of Framingham, Greene, of Brookfield, Ward, of Newton, Marvin, of Winchendon.

On so much of the Constitution as relates to the Encouragement of Literature

Messrs. Briggs, of Pittsfield, Frothingham, of Charlestown, Blagden, of Boston, Lothrop, of Boston, Perkins, of Salem, Mason, of Fitchburg, Chandler, of Greenfield, Copeland, of Roxbury, Foster, of Charlemont, Thayer, of Uxbridge, Cogswell, of Yarmouth, Coggin, of Tewksbury, Wilbur, of Taunton.

On so much of the Constitution as relates to Oaths and Subscriptions, Incompatibility and Exclusion from Office, Pecuniary Qualifications, &c.— Messrs. Butler, of Lowell, Parker, of Boston, Simmons, of Hanover, Payson, of Rowley, Lawton, of Fall River, Eustis, of Boston, Gooch, of Melrose, Denton, of Chelsea, Goulding, of Phillipston, Kingman, of West Bridgewater, Wallace, of Palmer, Hurd, of Brighton, Knight, of Marblehead.

On so much of the Constitution as relates to Qualifications of Voters

Messrs. Walker, of North Brookfield, Hubbard, of Boston, Hood, of Lynn, Morss, of Newburyport, French, of New Bedford, Phinney, of Barnstable, Thomas, of Weymouth, Cook, of Boston,

Tuesday,]

APPORTIONMENT OF REPRESENTATION, &c. — RANTOUL - HALE — BARTLETT.

Aldrich, of Barre, Morton, of Quincy, Warner, of Stockbridge, Phelps, of Monroe, Clarke, of Holyoke.

On so much of the Constitution as relates to Amendments and Enrolment―

Messrs. Nayson, of Amesbury, Stetson, of Braintree, Upton, of Boston, Wood, of Fitchburg, Paige, of Boston, Duncan, of Williamstown, Allen, of Brimfield, Wheeler, of Lincoln, Sherman, of Chicopee, Viles, of Lexington, Kellogg, of Hadley, Paine, of Brewster, Nute, of Lowell.

Monitors.

The President appointed Monitors under the 40th Rule. Subsequently Mr. FRENCH, of Stoughton, declined, and Mr. MORTON, of Fairhaven, was substituted, when the Monitors were as follows:

First Division-Messrs. Cushman, of Bernardston, and Prince, of Winchester.

Second Division-Messrs. Hall, of Haverhill, and Train, of Framingham.

Third Division-Messrs. Morton, of Fairhaven, and Bumpus, of Plympton.

Fourth Division-Messrs. Bates, of Plymouth, and Gilbert, of Plainfield.

Fifth Division--Messrs. Churchill, of Milton, and Dawes, of Adams.

Sixth Division-Messrs. Greene, of Brookfield, and Schouler, of Boston.

Apportionment of Representation.

Mr. RANTOUL, of Beverly, submitted the following Resolution, which was referred to the Committee upon the Senate:—

Resolved, That the Constitution be so amended as that the Senate shall consist of forty members, apportioned in the following manner:-Every town or city, containing a number of inhabitants equal to a fortieth part of the inhabitants of the State, may elect one Senator.

Every town or city, containing, in addition to the number which entitles it to elect one Senator, a number of inhabitants equal to a thirtieth part of the inhabitants of the State, may elect two Senators.

Every town or city, containing, in addition to the number which entitles it to elect two Senators, a number of inhabitants equal to a twentieth part of the inhabitants of the State, may elect three Senators.

Every town or city, for every additional onetenth part of the inhabitants of the State more than the number which entitles it to elect three Senators, may elect one additional Senator.

Every town or city, entitled to elect more than one Senator, shall be divided into as many Districts as it is entitled to elect Senators, and each District may elect one Senator only.

The towns and cities, each of which contain less than a forticth part of the inhabitants of the State, shall be formed into as many Senatorial Districts as will be equal to the number remaining after deducting from forty the number of Senators assigned to the towns and cities, each of which contain more than a fortieth part of the inhabitants of the State, and each of such Districts may elect one Senator only.

Mr. RANTOUL submitted the following Resolution, which was referred to the Committee upon the House of Representatives :

Resolved, That the Constitution be so amended as that the House of Representatives shall consist of one hundred and fifty members, apportioned

in the following manner:-Every town or city containing a number of inhabitants equal to a one hundred and fiftieth part of the inhabitants of the State, may elect one Representative. Every town or city, containing, in addition to the number which entitles it to elect one Representative, a number of inhabitants equal to a one hundred and fortieth part of the inhabitants of the State, may elect two Representatives,

Every town or city, containing, in addition to the number which entitles it to elect two Representatives, a number of inhabitants equal to a one hundred and thirtieth part of the inhabitants of the State, may elect three Representatives.

Every town or city, containing, in addition to the number which entitles it to elect three Representatives, a number of inhabitants equal to a one hundred and twenticth part of the inhabitants of the State, may elect four Representatives.

Every town or city, containing, in addition to the number which entitles it to elect four Representatives, a number of inhabitants equal to a one hundred and tenth part of the inhabitants of the State, may elect five Representatives.

Every town or city, containing, in addition to the number which entitles it to elect five Representatives, a number of inhabitants equal to a one hundredth part of the inhabitants of the State, may elect six Representatives.

Every town or city, containing, in addition to the number which entitles it to elect six Representatives, a number of inhabitants equal to a ninetieth part of the inhabitants of the State, may elect seven Representatives.

Every town or city, containing, in addition to the number which entitles it to elect seven Representatives, a number of inhabitants equal to an eightieth part of the inhabitants of the State, may elect eight Representatives.

Every town or city, containing, in addition to the number which entitles it to elect eight Representatives, a number of inhabitants equal to a seventieth part of the inhabitants of the State, may elect nine Representatives.

Every town or city, containing, in addition to the number which entitles it to clect nine Representatives, a number of inhabitants equal to a sixtieth part of the inhabitants of the State, may elect ten Representatives.

Every town or city, containing, in addition to the number which entitles it to elect ten Representatives, a number of inhabitants equal to a fiftieth part of the inhabitants of the State, may elect eleven Representatives.

Every town or city, containing, in addition to the number which entitles it to elect eleven Representatives, a number of inhabitants equal to a fortieth part of the inhabitants of the State, may elect twelve Representatives.

Every town or city, containing, in addition to the number which entitles it to elect twelve Representatives, a number of inhabitants equal to a thirtieth part of the inhabitants of the State, may elect thirteen Representatives.

Every town or city, containing, in addition to the number which entitles it to elect thirteen Representatives, a number of inhabitants equal to a twentieth part of the inhabitants of the State, may elect fourteen Representatives.

Every town or city, for every additional onetenth part of the inhabitants of the State, more than the number which entitles it to elect fourteen Representatives, may clect one additional Representative.

Every town or city entitled to more than one Representative, shall be divided into as many Districts as it is entitled to elect Representatives, and each District may elect one Representative only.

The towns and cities, each of which contain less than a one hundred and fiftieth part of the inhabitants of the State, shall be formed into as many Representative Districts, as will be equal to the number remaining after deducting from one hundred and fifty, the number of Representatives assigned to the towns and cities, each of which contain more than a one hundred and fiftieth part

[May 10th.

of the inhabitants of the State, and each of such Districts may elect one Representative only.

On motion by Mr. SCHOULER, the above resolutions were ordered to be printed.

Plurality Law.

On motion by Mr. HOOPER, the Resolution offered by him upon yesterday, concerning the number of votes necessary to an election, was taken from the table and referred to a special committee to be appointed by the President.

Town of Berlin.

The Convention then proceeded to consider the following order, submitted on yesterday, by Mr. Butler, of Lowell :

Ordered, That the Secretary be directed, in notifying the town of Berlin of the vacancy in the Convention, to use substantially the form herewith submitted.

HALL OF THE CONSTITUTIONAL CONVENTION,
Boston, May, 1853.

To the Selectmen of Berlin:
GENTS:-The Hon. Henry Wilson, late dele-
gate for Berlin in the Convention for Revising
the Constitution, having tendered his resignation
as such delegate, which has been accepted by the
Convention, and his seat being thereby vacated,
I am directed, by a vote of the Convention, to re-
quest you to convene the qualified electors of
your town, as soon as may be, with a due regard
to notice, in order to their electing and deputing
a delegate to represent them in this Convention,
in the manner prescribed by the second section of
the Act calling the Convention, adopted by the
people on the second Monday in November,

A. D. 1852.

I am, very respectfully,

Your obedient servant. [Signed by the Secretary.] The question was upon the adoption of the above order.

Mr. HALE, of Bridgewater. I hope the Convention will not agree to that order. It will be recollected that almost the entire day of yesterday was spent in discussing and deciding what action the Convention should take in relation to the vacancy in the town of Berlin. We at length decided very unanimously, I thought, that all that was proper and necessary for us to do in the matter, was to give notice to the town of Berlin that the delegate which they had elected had resigned. The Secretary was directed to give that notice. The order before us prescribes altogether a different thing. If it be adopted, it seems to me that the journals of the Convention will appear a little inconsistent, one day containing an order for the mere notification of the town of Berlin that its delegate has resigned, and the next day containing what is equivalent to the issuing of a precept to elect another delegate. I think the duty of the Secretary is to conform to the order of the Convention prescribed on yesterday, and forward to the town of Berlin a copy of the record of the Convention upon the subject yesterday, which is all that is necessary.

Mr. BARTLETT, of Boston. I concur entirely in the views expressed by the gentleman from Bridgewater, (Mr Hale.) I wish the mover of this order was present that he might give, if possible, some good reason for departing from the

Wednesday,]

TOWN OF BERLIN, &c. - FROTHINGHAM-BARTLETT - WILKINS-WILSON.

course determined on by the Convention yesterday. I supposed the action of the Convention had settled this matter. There exists in the towns of this Commonwealth, by virtue of the Act under which we are assembled, a right to be represented in this body. The town of Berlin has attempted to exercise that right and failed to fulfil their wishes in that respect by an occurrence of such a character as this body has deemed a proper ground for giving them notice of that fact. Nothing remains for us to do but to notify that town of the vacancy caused by the resignation of its delegate, and they can then proceed again to exercise their right to elect a delegate.

I

I think the suggestion of the gentleman from Bridgewater (Mr. Hale) is a good one, that the Secretary forward to the town of Berlin a copy of the record of this Convention upon this matter. I will embody that suggestion in a motion to amend the order now under consideration, as follows: Strike out all after the following words, viz.: "Ordered, That the Secretary be directed, in notifying the town of Berlin of the vacancy in the Convention," and insert "To forward to the Selectmen of that town an attested copy of the order passed by this Convention on yesterday." Mr. FROTHINGHAM, of Charlestown. confess that I was in favor of the form of the notice submitted by the gentleman from Lowell, (Mr. Butler,) to the Convention on yesterday. I understand that the paper purports to be nothing but a notice to the town of Berlin, that the seat of its delegate is vacant, with a request that if it chooses to exercise its right, to elect a member to represent it here, according to the Act under which this body is convened, it shall do so, with the implied understanding, that this Convention will admit the member so elected. I really do not see any objection to such a form of notice. I was informed by the gentleman who introduced this order, that it is a copy of a form which was adopted by the Convention of 1780, with the simple addition of a reference to the Act adopted by the people, by virtue of which this Convention is now in session. I should really like to hear some objection offered to this form of notice, before I can vote for the amendment of the gentleman from Boston, (Mr. Bartlett.)

Mr. BARTLETT. The order as it now stands does more than simply notify the town of Berlin of the vacancy. It says to that town that we desire that they shall not fail to exercise their right of being represented here. Now, whatever may be the desires of members aside from the discharge of their duties as members of this Convention, it seems to me hardly proper for us to express a wish for any town to do that which it may or may not see fit to do. There exists in every town a legal right. We notify them of the occurrence of an event which gives them the opportunity of exercising that right. Now why should we add to that notice, an intimation on our part that whatever may be their views of expediency, we desire them to exercise that right. That, it seems to me would be going beyond what it is fit and proper for us to do.

Now a word or two in reply to the argument that this form of notice is copied from a precedent. It is not a copy of a precedent; these are not the words used by the Convention of 1780. And even if they were, I think it is but right and proper to recall to the minds of the members of this Convention that there are sundry passages

in the history of that Convention which we should not endeavor to imitate. That Convention assembled to take the place of what may be said to have been the General Court of this Province, which had not been assembled since the time it was closed by the British authorities in this city. The Continental Congress had been applied to for advice as to what course should be pursued here, and they recommended the assembling of a Convention to institute a form of government, as near to the chartered form as should be deemed expedient. A modified form of government was the result. After that imperfect form of government had been established, the question was presented to the people, whether a Convention should be assembled to form a Constitution. That Convention was ordered, and it not only framed a Constitution, but issued precepts to the people of this Commonwealth, to assemble in their primary assemblies to carry that Constitution into effect, by electing the proper officers under it. Now I think it will hardly be contended that we should do that. Indeed, there runs through the whole history of that body a course of action, founded upon coexisting circumstances, which we should not accept as an example. Let us rather conform to our present institutions which have flourished for so long a time, and not seek to imitate the acts of a body existing under a state of things which has no parallel in the present state of the Commonwealth. Let us conform to an exact performance of our duties, issuing no precepts, making no recommendations, expressing no wishes or desires, but merely giving notice to the towns of this Commonwealth, that there exits upon their part a legal right to send delegates to this Convention, which they may exercise or not, as they may deem proper and expedient.

Mr. KEYES, of Abington. I do not rise for the purpose of expressing any opinion upon this subject. It seems to me to be a matter of very little consequence whether we notify the town of Berlin of the existence of a vacancy here, or request them to elect a member and send him here. But there seems to be involved in this question one of a graver nature, one that will be likely to open debate in reference to the constitutional powers of this Convention. Although I have had no communication with the author of the order now under consideration, I suppose it may have been his object to open such a debate, as it has been stated here by the learned gentleman from Boston, (Mr. Sprague,) that the Act under which we are assembled is the charter of this Convention; and if I mistake not, reference is made to that Act in this order. I ask, therefore, as a matter of courtesy, stating at the same time that the mover of this order has given me no authority to do so, that this subject be postponed until toat which time the mover may be present. The question being taken, the further consideration of the order was postponed until to

morrow,

morrow.

Time of Meeting of the Committees.

The following order, submitted by Mr. WILSON, of Natick, was then considered by unanimous consent, and agreed to:

Ordered, That the Committees to whom have been referred the several parts of the Constitution be instructed to meet at 10 o'clock, A. M., on and after to-morrow, until they make their final report, or until otherwise ordered by the Convention.

[May 11th.

Vacancy in the Boston Delegation.

Mr. WILKINS, of Boston. It is well known to many of the Boston delegation, that there is at least one vacancy in that delegation. The Hon. Henry B. Rogers, on account of ill health has sailed for Europe. I am somewhat in doubt as to whether this Convention can take any action in regard to that matter or not; but I deem it a proper subject for inquiry before a committee. I therefore ask leave to submit the following:

Ordered, That the Committee on Elections be instructed to inquire if any vacancy or vacancies exist in the Boston delegation, and if any, to consider and report what measures it is proper to adopt in relation thereto.

The order was then considered by unanimous consent and agreed to.

Right to Hold Property-Imprisonment for Debt.

Mr. WILSON, of Natick, submitted the following order, which was considered by unanimous consent and adopted :

Ordered, That the Committee on the Bill of Rights be instructed to consider the expediency of incorporating into the Bill of Rights the following provisions, viz. :—

No distinction shall ever be made by law between resident aliens and citizens in reference to the possession, enjoyment and descent of property. No person shall be imprisoned for debt upon any action founded upon any contract expressed or implied.

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