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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 accomling 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
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
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
VACANCIES IN THE CONVENTION. – UPTON – PIERSON — SPRAGUE – BUTLER.
HALL OF THE Boston, "Wa9845, C85%ENTION, }
some gentleman here who was present upon the delegate has resigned. This does not necessarily made by the resignation of her delegate, but the occasion, and who could inform us from his re- bring into discussion the points which we shall towns which had made no choice could not now collection what was the true question before the be called upon to decide in relation to the mem- be permitted to send delegates to the Convention. Convention of 1820. If the Convention of 1780 ber when he comes and presents himself from Something had been said in the course of the decided this question one way, and the Conven- that town. Nor does it necessarily bring into debate as to the power of the Convention to go sion of 1820 decided the same question the other discussion the question whether we have a right beyond the Act of the legislature and receive such way, there is no precedent to be derived from to issue a precept to that town. I am free, for persons as members as they may see fit, whether those proceedings taken together which can guide one, to confess that I do not believe this ('onven- elected pursuant to the act or not. In one sense us at this time.
tion has the power to issue a precept, or the right they might possess that power, but such a power If this is to be sustained at all, it seems to me to order a town to meet and elect a member was not a legal power. The ('onvention is selfthat it must be upon the ground that this ('on- to this Convention; but I know of nothing in the controlled. No other body can cocrce them. vention is a legislative body, that it is the parlia- Constitution or elsewhere which denies us the | But if they transcend the limits prescribed by the mentary usage of the IIouse of Commons and of the right to notify a town that a member has deceased charter which gave them existence, if they knowHouse of Lords, and that the House of Representa- or has declined to serve. It is a mere act of cour- ingly permit those to participate in their deliberatives of this State, following the usage in England, tesy and nothing more. That I believe we have a tions and action who are not authorized by the law, has repeatedly acted upon the subject of vacan- perfect right to do, without violating either the then they will cease to be the Convention authorcies. Here again, we are not in the possession of letter or the spirit of the Constitution. I hope ized by the people and become a revolutionary that information which we might have by further that the Report of the Committee will be agreed body, guided by no rule and governed by no delay. But not to detain the Convention longer, to by the Convention, and that we shall thereby law but their own will. Whether any member the question presenting itself to me as it does at save time.
of the Convention would be willing to assume present, as a question of right and not of courtesy, Mr. SPRAGUE, of Boston, said, that he had such an attitude and such a responsibility, must as a question of law and not of personal wishes, so great a respect for the opinions of the gen- be left to his own judgment. The time had not although I should be most happy to vote in favor tlemen from Taunton, (Judge Morton,) and from arrived for discussing that question. of this motion, as at present advised, I must vote Cambridge, (Judge Parker,) that he was in- The question being taken, the order was against it, upon the ground that I do not find any duced to suggest one view for their considera- agreed to. power existing here to receive delegates, in what- tion and that of the Convention, which he had Mr. BUTLER, of Lowell, moved the followever form or shape, a notice or writ of election not heard presented. He agreed with them that ing order :should be had. Disagreeing, as I very probably the Act of the legislature, by virtue of which the shall, from the majority of the Convention upon Convention was assembled, was to be their guide. “ Ordered, That the Secretary of this Conventhis matter, I thought it due to myself to present It was the charter, the organic law of that body
tion, in conveying the notice to the town of Berlin the views which influence my own mind in rela
that has been ordered by the Convention, adopt under which they must act, and they had no right
the following form :tion to it.
to go beyond its true meaning. They must be Mr. UPTON, of Boston. This question, Sir, governed by the intention of those who made the has been discussed by gentlemen eminent in the law, as manifested by a true interpretation,
May --1853. law; but there is one point upon which my mind whether it be considered as deriving its force To the Selectmen of the Town of Berlin : has not been satisfied, and which has not been merely from the legislature, or also from adoption GENTLEMEX: The Hon. Henry Wilson, late discussed as I could wish. It is this simple point. by the people. But in order to ascertain what delegate for Berlin in the Convention for revising If you issue an order or notice to the town of that interpretation should be, it was proper to the Constitution, having tendered his resignation Berlin that the gentleman elected by that town as look to an established and known usage. If as such delegate, which has been accepted by the a delegate to this Convention declines the appoint- similar language had been used in another or- Convention, and his seat being thereby vacated, ment, upon what authority will the town of Ber- | ganic law and had received for many years a I am directed, by a vote of the Convention, to relin call their town meeting? They cannot call it practical construction, which was generally quest you to convene the qualified electors of your under the Act of the legislature calling this con- known, it may well be supposed that the legis-town, as soon as may be with a due regard to vention. They cannot call it under any precept lature meant to sanction that construction when notice, in order to their electing and deputing a of this Convention. This Convention does not they used similar language. If he recollected delegate to represent them in this Convention, in presume to issue any precept to that town. If aright, the Constitution provided that Repre- the manner prescribed by the second section of it is proposed here as a mere matter of courtesy, sentatives should be elected on the second Mon- the Act calling the Convention, adopted by the to give the town of Berlin an opportunity to send day of November, allowing an adjournment of people on the second Monday in November, to this Convention another delegate; and if the one or two days, or if a second meeting should A.D. 1852. majority of the Convention intend to take a fair be necessary, it should be held on the fourth I am very respectfully, course, I should hope that the same courtesy Monday of November. He understood that ever
Your Obedient Servant, might be extended to every other town in this since the adoption of the Constitution the prac
[Signed by the Secretary.] Commonwealth. If it is a question of law, a tice had been thus: if a town had elected a memquestion of right, then in my opinion there is no ber on either of those days, and his seat had
Mr. BUTLER stated that the form had been legal authority for the town of Berlin to call a become vacant from any cause, the town had
copied from the form used by the Convention in town meeting; and if it is a question of courtesy, been permitted to fill the vacancy by a new elec
1780, in notifying the town of Braintree, when we should extend the same courtesy to every tion. But if the town had not elected a member
John Adams sailed for Europe. town in the Commonwealth which is not now on either of those days, they had never been per
At the request of Mr. CROWNINSHIELD, represented in this Convention.
mitted to elect on a subsequent day, but remained the order was laid over under the rule. Mr. LIVERMORE, of Cambridge. For the unrepresented. This was a practical construction
Time and Place of Meeting. purpose of offering an order relative to the hour
well known throughout the Commonwealth. of our future meetings, as some gentlemen desire When, therefore, the legislature in framing the Mr. LIVERMORE, of Cambridge, moved the to leave, I move that for the present this subject organic law of this Convention declared in simi- following order : be laid upon the table.
lar language that its members should be chosen The motion was not agreed to.
Ordered, That on and after to-morrow, the on the first Monday of March, it may well be
Convention will meet daily at the State House, at Mr. PIERSON, of Lawrence. I understand supposed that they and the people, so far as they
three o'clock in the afternoon, until otherwise orthe question before the Convention to be upon adopted it, intended that it should have the same dered. the acceptance of the Report. I understand the meaning and the same construction which they Report to recommend that we notify the town of knew had been given to a similar provision in Mr. HOOD, of Lynn, moved to amend by inBerlin that the member elect for that town has the Constitution. This he believed to be a proper serting the words “ half past” before the words resigned. I think there can be no doubt with rule of interpretation as to all statutes and all “ three o'clock.” regard to the power of the Convention to assume instruments. If this view was correct, the town Mr. PIERSON, of Lawrence, suggested that the authority of notifying the town that their of Berlin should be allowed to fill the vacancy | meeting at three o'clock instead of half past three,
STANDING COMMITTEES, &c.— HOOD-BROWN-HOOPER — BRIGGS.
On so much of the Constitution as relates to the
Lieutenant-GovernorMessrs. 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, De Witt, 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 PublicMessrs. 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.
would accommodate members who wished to re- morial of James Russell, of West Cambridge, turn home at night in the cars.
claiming a seat in the Convention; which was Mr. HOOD explained that he had understood referred to the Committee on Elections. that the House was to continue in session until three o'clock; but learning that it was their inten
STANDING COMMITTEES. tion to vacate the Hall in season for the Conven- The President appointed the following Committion to meet at that hour, he would withdraw the tees on the various propositions for the amendmotion to amend.
ment of the Constitution :The order was agreed to.
On so much of the Constitution as is contained in
the Preamble and Declaration of RightsMr. Sumner, of Otis, having resigned, Mr.
Messrs. Sumner, for Marshfield, Parker, of Hathaway, of Freetown, was appointed upon the
Cambridge, Hallett, for Wilbraham, Hillard, of Special Committee on Vacancies.
Boston, Allen, of Worcester, Gray, of Boston,
Huntington, of Salem, Rockwell, of Pittsfield, Constitutions of the several States.
Dana, for Manchester, Bell, of Somerville, WilThe Convention proceeded to the consideration
liams of Taunton, Burlingame, for Northborough, of the order submitted by Mr. BROWN, of Dra- Marcy, of Greenwich. cut, relative to furnishing members with A. S.
On so much of the Constitution as relates to the Barnes & Co's edition of the Constitutions of the
Frame of Government, Elections by the Legislaseveral States in the Union.
ture, &c.— Mr. BROWN stated that the object of the order
Messrs. Allen, of Worcester, Upham, of Sawas to bring before the Convention all the light
lem, Wilkinson, of Dedham, Appleton, of Boswhich could be obtained from the experience of
ton, Gourgas, of Concord, Hale, of Bridgewater, the other States. The work would be furnished
Morton, of Fairhaven, Plunkett, of Adams, Daat $1 50 per copy, and having been revised up to the year 1852, contained the latest information.
vis, of Plymouth, Livermore, of Cambridge, Bliss,
of Longmeadow, Nash, of Williamsburg, Hoyt, The order was agreed to.
of Deerfield. Plurality Elections.
On so much of the Constitution as relates to the Mr. HOOPER, of Fall River, submitted the
Senatefollowing resolution :
Messrs. Wilson, of Natick, Beach, of Spring
field, Stevenson, of Boston, Morton, of Andover, Resolved, That it is expedient so to revise the Constitution, that in all elections by the people
Thompson, of Charlestown, Morey, of Boston, under it, the person having the highest number
Keyes, for Abington, Hobart, of Foxboro,' Howof votes shall be deemed and declared to be elected. land, of New Bedford, Whitney, of Conway,
Hooper, of Fall River, Conkey, of Amherst, Mr. HOOPER moved its reference to a select Dawes, of Adams, Alley, of Lynn, Pomroy, of committee, to consist of five members.
Rowe, Waters, of Millbury, James, of So. ScituMr. BRIGGS. I move that it be laid upon the ate, French, of Canton, Tilton, of Chilmark, table. When the committees are organized, there Crowell, of Dennis, Easton, of Nantucket. will probably be some one to which it can be referred.
On 80 much of the Constitution as relates to the The motion was agreed to, and the resolution
House of Representatives. lies upon the table.
Messrs. Griswold, for Erving, Butler, of LowThe PRESIDENT stated that he would an- ell, Hale, of Boston, Burlingame, for Northboro,' nounce the Committees upon to-morrow.
Alvord, for Montague, Schouler, of Boston, Earle, On motion, at twenty minutes before two o'clock, of Worcester, Bullock, of Royalston, Sargent, of the Convention adjourned.
Cambridge, Warner, of Wrentham, Kinsman, of
Wood, of Middleboro,' Aspinwall, of Brookline,
Weeks, of Harwich, Carter, of Chicopee, Mead-
er, of Nantucket, Norton, of Tisbury.
Boston, Brown, of Dracut, Hopkinson, of Boston,
ison, of Coleraine, Bradbury, of Newton, Boutcontemplated by the 19th Rule.
well, of Lunenburg, Huntington, of Becket,
Stephens of Gloucester, Miller, of Wareham, A communication was received from the Speaker Langdon, of Monterey. of the House of Representatives, accompanied by the following order, which had been adopted in On so much of the Constitution as relates to the that body :
Messrs. Oliver, of Lawrence, Chapin, of Spring“ Ordered, That the members of the Constitu- field, Underwood, of Milford, Tyler, of Boston, tional Convention be invited during its session to
Churchill, of Milton, Prince, of Winchester, Abavail themselves of such privileges of the library of the Commonwealth as the members of the
bott, of Danvers, Strong, of Easthampton, Bumlegislature are entitled to.”
pus, of Plympton, Stacy, of Gloucester, Fellows,
of Lowell, Winn, of Woburn, Swain, of NanMr. ABBOTT, of Lowell, presented the me- tucket.
On so much of the Constitution as relates to the
On so much of the Constitution as relates to the
University at Cambridge-
On so much of the Constitution as relates to the
Encouragement of Literature-
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 Qual
ifications of VotersMessrs. 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,]
APPORTIOYMENT OF REPRESENTATION, &c. -RANTOUL-HIALE – BARTLETT.
Aldrich, of Barre, Morton, of Quincy, Warner, in the following manner :-Every town or city of the inhabitants of the State, and each of such of Stockbridge, Phelps, of Monroe, Clarke, of Hol- containing a number of inhabitants equal to a Districts may elect one Representative only. yoke.
one hundred and fiftieth part of the inhabitants
of the State, may elect one Representative. On motion by Mr. SCHOULER, the above On so much of the Constitution as relates to AmendEvery town or city, containing, in addition to
resolutions were ordered to be printed.
sentative, a number of inhabitants equal to a one Messrs. Nayson, of Amesbury, Stetson, of hundred and fortieth part of the inhabitants of
Plurality Lar. Braintree, Upton, of Boston, Wood, of Fitch- the State, may elect two Representatives.
On motion by Mr. HOOPER, the Resolution burg, Paige, of Boston, Duncan, of Williams- Every town or city, containing, in addition to
offered by him upon yesterday, concerning the town, Allen, of Brimfield, Wheeler, of Lincoln, the number which entitles it to elect two Repre
number of votes necessary to an election, was taken sentatives, a number of inhabitants equal to a Sherman, of Chicopee, Viles, of Lexington, Kelone hundred and thirtieth part of the inhabitants
from the table and referred to a special committee logg, of Hadley, Paine, of Brewster, Nute, of of the State, may elect three Representatives. to be appointed by the President. Lowell.
Every town or city, containing, in addition to
Town of Berlin.
resentatives, a number of inhabitants equal to a The President appointed Monitors under the
one hundred and twentieth part of the inhabitants The Convention then proceeded to consider the
of the State, may elect four Representatives. following order, submitted on yesterday, by Mr. 40th Rule. Subsequently Mr. FRENCH, of
Every town or city, containing, in addition to Butler, of Lowell :Stoughton, declined, and Mr. MORTON, of Fair- the number which entitles it to elect four Reprehaven, was substituted, when the Monitors were sentatives, a number of inhabitants equal to a Ordered, That the Secretary be directed, in noas follows:
one hundred and tenth part of the inhabitants of tifying the town of Berlin of the vacancy in the First Division-Messrs. Cushman, of Bernardsthe State, may elect five Representatives.
Convention, to use substantially the form herewith
Every town or city, containing, in addition to ton, and Prince, of Winchester.
submitted. the number which entitles it to elect five RepreSecond Division-Messrs. Hall, of Haverhill, sentatives, a number of inhabitants equal to a one and Train, of Framingham. hundredth part of the inhabitants of the State,
BostonMay Third Division-Messrs. Morton, of Fairhaven, may elect six Representatives.
To the Selectmen of Berlin : and Bumpus, of Plympton.
Every town or city, containing, in addition to the number which entitles it to elect six Repre
GENTS :— The Hon. IIenry Wilson, late deleFourth Division-Messrs. Bates, of Plymouth,
sentatives, a number of inhabitants equal to a gate for Berlin in the Convention for Revising and Gilbert, of Plainfield.
ninetieth part of the inhabitants of the State, may the Constitution, having tendered his resignation Fifth Division-Messrs. Churchill, of Milton, elect seven Representatives.
as such delegate, which has been accepted by the and Dawes, of Adams.
Every town or city, containing, in addition to
Convention, and his seat being thereby vacated, Sixth Division-Messrs. Greene, of Brookfield,
the number which entitles it to elect seven Repand Schouler, of Boston. resentatives, a number of inhabitants equal to an
I am directed, by a vote of the Convention, to reeightieth part of the inhabitants of the State, may
quest you to convene the qualified electors of elect eight Representatives.
your town, as soon as may be, with a due regard Apportionment of Representation.
Every town or city, containing, in addition to to notice, in order to their electing and deputing Mr. RANTOUL, of Beverly, submitted the the number which entitles it to elect eight Rep
a delegate to represent them in this Convention, resentatives, a number of inhabitants equal to a following Resolution, which was referred to the seventieth part of the inhabitants of the State,
in the manner prescribed by the second section of Committee upon the Senate : may elect nine Representatives.
the Act calling the Convention, adopted by the
Every town or city, containing, in addition to people on the second Monday in November, Resolved, That the Constitution be so amended
the number which entitles it to elect nine Repre- A. D. 1852. as that the Senate shall consist of forty members, sentatives, a number of inhabitants equal to a six
I am, very respectfully, apportioned in the following manner :- Every tieth part of the inhabitants of the State, may
Your obedient servant. town or city, containing a number of inhabitants elect ten Representatives. equal to a fortieth part of the inhabitants of the Every town or city, containing, in addition to
[Signed by the Secretary.] State, may elect one Senator.
the number which entitles it to elect ten RepreEvery town or city, containing, in addition to sentatives, a number of inhabitants equal to a
The question was upon the adoption of the
above order. the number which entitles it to elect one Senator, fiftieth part of the inhabitants of the State, may a number of inhabitants equal to a thirtieth part elect eleven Representatives.
Mr. HALE, of Bridgewater. I hope the Conof the inhabitants of the State, may elect two Every town or city, containing, in addition to vention will not agree to that order. It will be reSenators.
the number which entitles it to elect eleven Rep- collected that almost the entire day of yesterday Every town or city, containing, in addition to resentatives, a number of inhabitants equal to a
was spent in discussing and deciding what action the number which entitles it to elect two Sena- fortieth part of the inhabitants of the State, may tors, a number of inhabitants equal to a twentieth elect twelve Representatives.
the Convention should take in relation to the vapart of the inhabitants of the State, may elect
Every town or city, containing, in addition to cancy in the town of Berlin. We at length decidthree Senators.
the number which entitles it to elect twelve Rep- ed very unanimously, I thought, that all that was Every town or city, for every additional one- resentatives, a number of inhabitants equal to a proper and necessary for us to do in the matter, tenth part of the inhabitants of the State more thirtieth part of the inhabitants of the State, may than the number which entitles it to elect three elect thirteen Representatives.
was to give notice to the town of Berlin that the Senators, may elect one additional Senator.
delegate which they had elected had resigned.
Every town or city, containing, in addition to Every town or city, entitled to elect more than the number which entitles it to elect thirteen
The Secretary was directed to give that notice. one Senator, shall be divided into as many Dis- Representatives, a number of inhabitants equal to The order before us prescribes altogether a differtricts as it is entitled to elect Senators, and each a twentieth part of the inhabitants of the State, ent thing. If it be adopted, it seems to me that District may elect one Senator only. may elect fourteen Representatives.
the journals of the Convention will appear a little The towns and cities, each of which contain Every town or city, for every additional one
inconsistent, one day containing an order for the less than a fortieth part of the inhabitants of the tenth part of the inhabitants of the State, more State, shall be formed into as many Senatorial than the number which entitles it to elect four
mere notification of the town of Berlin that its Districts as will be equal to the number remain- teen Representatives, may elect one additional delegate has resigned, and the next day containing after deducting from forty the number of Sen- Representative.
ing what is equivalent to the issuing of a precept ators assigned to the towns and cities, each of Every town or city entitled to more than one to elect another delegate. I think the duty of the which contain more than a fortieth part of the
Representative, shall be divided into as many inhabitants of the State, and each of such Districts Districts as it is entitled to elect Representatives,
Secretary is to conform to the order of the Conmay elect one Senator only. and each District may elect one Representative
vention prescribed on yesterday, and forward to only.
the town of Berlin a copy of the record of the Mr. RANTOUL submitted the following Res
The towns and cities, each of which contain Convention upon the subject yesterday, which is olution, which was referred to the Committee
less than a one hundred and fiftieth part of the all that is necessary.
inhabitants of the State, shall be formed into upon the House of Representatives :
Mr. BARTLETT, of Boston. I concur enmany Representative Districts, as will be equal to the number remaining after deducting from one
tirely in the views expressed by the gentleman Resolved, That the Constitution be so amended hundred and fifty, the number of Representatives
from Bridgewater, (Mr IIale.) I wish the mover as that the House of Representatives shall consist assigned to the towns and cities, each of which of this order was present that he might give, if of one hundred and fifty members, apportioned contain more than a one hundred and fiftieth part possible, some good reason for departing from the
TOWN OF BERLIN, &c. - FROTHINGHAM - BARTLETT – WILKINS — WILSON.
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.
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 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. I 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 tomorrow, at which time the mover may be present.
The question being taken, the further consideration of the order was postponed until 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.
Statistical Information. Mr. THOMPSON, of Charlestown, submitted the following order, which was considered by unanimous consent and agreed to.
Ordered, That the Secretary of State be requested to furnish the Convention with such statistics concerning the population, ratable polls, and valuations of the several towns and cities of this Commonwealth, as may be required by this Convention.
Orders Adopted. Mr. EARLE, of Worcester, submitted the following order, which was agreed to :
Ordered, That the list of the several Standing Committees of the Convention, with the places of their meeting, be printed for the use of members.
Mr. LIVERMORE, of Cambridge, submitted the following order, which was agreed to :
Ordered, That the President be authorized to appoint a Committee on the Pay Roll, and a Committee on Leave of Absence, in addition to the Standing Committees of this body.
Report Submitted. Mr. ABBOTT, of Lowell, from the Committee on Elections, who were directed by an order of the 5th inst., to examine the credentials of members, and report what towns were unrepresented, submitted a Report, which was placed in the Orders of the Day, and ordered to be printed.
On motion, the Convention adjourned.
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.
WEDNESDAY, May 11, 1853. Mr. WARD, of Newton, declined serving upon the Committee relative to Harvard University; and was excused.