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Wednesday,]

FORM OF NOTICE TO THE TOWN OF BERLIN, &c.— GOURGAS — BUTLER.

Mr. PAINE, of Brewster, declined serving upon the Committee on Secretary, Treasurer, &c., and was excused.

Free Homestead.

On motion by Mr. STRONG, of Easthampton,

Ordered, That the Committee under the 13th Resolution, to whom was referred so much of the Constitution as relates to Oaths and Subscriptions, Incompatibility of and Exclusion from Office, Pecuniary Qualifications, Commissions, Writs, Confirmation of Laws, Habeas Corpus, and the Enacting Style, including the first eight articles in chapter 6, be instructed to consider the expediency of so amending the Constitution as to exempt from attachment on lien process so much of the freehold estate of every citizen of the Commonwealth as shall amount to the sum of $500, and report thereon.

Apportionment of Representation.

Mr. EARLE, of Worcester, submitted the following resolution, which was referred to the Committee on so much of the Constitution as relates to the Senate:

Resolved, That in the organization of the Senate, the Apportionment should be made according to the number of qualified voters in the several sections of the Commonwealth.

Also, the following Resolution, which was referred to the Committee on so much of the Constitution as relates to the House of Representatives.

Resolved, That in the organization of the House of Representatives, the Apportionment should be made according to the number of qualified voters in the several cities and towns of the Commonwealth.

Election of Officers.

On motion by Mr. EARLE,

Ordered, That the Committee under the 9th Resolution, on so much of the Constitution as relates to the Secretary and Treasurer in section 4 of chapter 2, and the Attorney-General, Sheriffs, Coroners, Registers of Probate, &c., being article 9 of section 1, chapter 2 of the Constitution, consider and report on the expediency of so amending the Constitution as to provide that all officers recognized under the portion of the Constitution referred to them shall be elected by direct vote of the people.

Legislative Sessions and Compensation. On motion by Mr. CUSHMAN, of Bernardston,

Ordered, That the Standing Committee to whom was referred so much of the Constitution as relates to the General Court, be directed to consider the expediency of so amending the Constitution that no session of the legislature shall continue a longer time than one hundred days, or that each member of the Senate and House of Representatives shall receive for his compensation a sum not exceeding $200 per annum.

On motion by Mr. WILSON, of Natick,

Ordered, That the Committee to whom was referred so much of the Constitution as relates to the Frame of Government and the General Court, in section 1st of chapter 1st, &c., be instructed to inquire into the expediency of incorporating in that section the following provision:

Members of the legislature shall receive for their services a compensation to be fixed by law, and paid out of the public treasury; and no increase of compensation shall take effect during the time

for which the members of either House shall have been elected. No Senator or Representative shall, during the term for which he shall have been elected, be appointed to any office by the Governor or Legislature; nor shall any Senator or Representative be appointed by the Governor or Legislature, within one year after his term shall have expired, to any office which shall have been created, or the emoluments of which shall have been increased during such term. A majority of each House shall constitute a quorum to do business, but a smaller number may adjourn from day to day, and compel the attendance of absent members in such manner and under such penalties as each House may provide. No private or local bill shall embrace more than one subject, and that shall be expressed in the title. No law shall be revised or amended by reference to its title, but in such case the provision shall be reenacted and published at length.

Freedom of Ballot.

On motion by Mr. CHURCHILL, of Milton, Ordered, That the Committee to whom was referred so much of the Constitution as relates to the Qualifications of Voters, be instructed to inquire into the expediency of so amending the Constitution as to provide for freedom of ballot, in conformity with the provisions of the Act entitled "An Act for the better security of the Ballot," passed in the year 1851, and the Act in addition thereto, approved May 20th, 1852.

Comptroller.

On motion by Mr. HALL, of Haverhill,

Ordered, That the Committee having under consideration that portion of the Constitution relating to Secretary and Treasurer, &c., be instructed to inquire into the expediency of recognizing an additional officer, to be called the "* Comptroller," and report thereon.

Tax Qualification.

On motion by Mr. ELY, of Westfield,

Ordered, That the Committee under the 14th resolution, relating to the Qualifications of Voters, be instructed to consider the expediency of so amending the Constitution as to require that no tax qualification shall constitute a legal voter in this Commonwealth, and report thereon.

Credit of the State.

On motion by Mr. BROWN, of Dracut,

Ordered, That a Special Committee of thirteen be appointed to inquire and report to the Convention upon the expediency of so amending the Constitution that the legislature shall have no right to loan the credit of the State to any individual or corporation, or to contract any debt, for any purpose except to carry on the government, to pay its necessary expenses, to repel invasion, or to suppress insurrection.

Constitutional Conventions.
On motion by Mr. GOURGAS,

Ordered, That the Committee who have under consideration so much of the Constitution as relates to the amendment thereof, consider the expediency of providing, that in the general election held in the year 1868, and every fifteenth year thereafter, and also at such other times as the legislature may by law provide, the question, "Shall there be a Convention to revise the Constitution and amend the same?" shall be submitted to the electors qualified to vote for members of the legislature; and in the event that the electors so qualified, in such election, decide in favor of holding a Convention, that it shall be the duty of the legislature, at its session next ensuing after

[May 11th.

such decision, to provide by law for the election of delegates to such Convention.

Form of Notice to the Town of Berlin. On motion by Mr. GARDNER, of Seekonk, The Convention proceeded to the consideration of the order submitted by Mr. Butler, of Lowell, prescribing the form in which the Secretary shall notify the town of Berlin of the vacancy existing in the delegation from that town, and request the election of another delegate; to which Mr. Bartlett, of Boston, had moved the following substi'tute :

Resolved, That the Secretary, in notifying the town of Berlin of the vacancy in the Convention, be directed to forward to that town a certified copy of the order adopted by the Convention upon that subject.

Mr. BUTLER. Having submitted the order which is sought to be amended by the gentleman from Boston, it becomes my duty, perhaps, to state, as briefly as I may, the reasons why I submitted the form which I propose should be adopted. I offered that form, in the first place, because I had respect for the precedent established by the Convention of 1780, which I have followed with a single exception, made necessary by a change of time and of circumstances. The form is almost the precise language adopted by the Convention of 1780, when that Convention requested an election in the town of Braintree of a delegate in place of John Adams, who had sailed for Europe upon an appointment from Congress.

In the second place-perhaps only second in order of time--I submitted that form because I want, if possible, to get an authoritative expression, by this Convention, upon the question, whether we were sent here by the will of the people, expressed last November, or by any other authority whatever. And it does it in this way. The order directs the Secretary to signify to the town of Berlin that it is the opinion of this Convention that a delegate should be elected according to the forms and according to the substance of the Act which was adopted and recognized by the people, and in no other mode. I beg not to be misunderstood. I mean to express, by the order, that it is the judgment of the Convention, that the delegate ought to be elected in the mode pointed out by the Act as adopted and ratified by the people, and by no other form whatever. So the Convention at once see that we come to a question of no very inconsiderable importance, whether or not the election by secret ballot, as adopted by the people, is a proper form of election, or whether the election should be by some other mode pointed out by some other body which had no business to interfere with it. I prefer that we should come to this question, in limine, at the threshold; because the decision upon it will have a great influence upon my action hereafter. This is the question, whether we sit here by the will of the legislature, or whether we sit here by the will of the people, and that alone. Are gentlemen willing to admit that our charter is from the legislature, or will they assert that we are here by the will of the people and that alone?

Now, Sir, to go back to the first question presented, to wit, whether the precedent established by the Convention of 1780 should have weight with us, I understood that it was argued by the gentleman who offered the amendment, that although the precedent was in favor of the order I submit

Wednesday,]

FORM OF NOTICE TO THE TOWN OF BERLIN.-BUTLER.

ted, yet at the time of the adoption of the Constitution in 1780, there was no government in this Commonwealth, (then a province,) rightfully sitting, and rightfully acting, or acting in fact; and that, therefore, the Convention of 1780 was unlike this Convention. I may have misunderstood him, but I think I have stated the point correctly. The precedent ought not to have weight, because there was no government in 1779-80, under which that Convention could be called; and therefore that Convention exercised other and different powers from those which we exercise. If that be correct in point of fact-if it be correct in point of history-then I grant you that the weight of the precedent falls; but if he happens to be wrong as I shall have the honor of submitting to the Convention that he is-both in point of fact and in point of history, then the precedent stands with all the importance of its own intrinsic authority.

Now, was there any government in 1779 and '80 I beg pardon of the Convention for trespassing upon their time, but I will be brief while I refresh the memory of all here in reference to the state of things which brought about the formation of the government under which we fought the struggles of the Revolution. Let us go back for a moment to the beginning. In 1691, William and Mary renewed the charter granted to the colony by Charles the First. In that charter it was provided, that in the absence both of the Royal Governor and Lieutenant-Governor, a majority of the Council should have a negative voice upon the passage of laws-that Council bearing the same relation to the government as our Council do at present to our Governor. Now, to come further down; in 1774, General Gage ordered an election of representatives to the great general court. After the delegates were elected, not finding them the supple tools of power he expected, he issued his proclamation and ordered them not to convene at Salem, where they were at first directed to assemble, and sent them notice that, should they assemble, he would not be present. Notwithstanding this prohibition, ninety of the representatives, being a large majority of all elected, assembled at Salem on the 5th of October, 1774, the day appointed, and after waiting a day, as they believed themselves in duty bound to do, for the Royal Governor to make his appearance, in order to administer the usual oaths; and when it became certain that his presence could not be expected, they then proceeded, not doubtingly, not hintingly, but boldly and openly, to organize a convention or provincial congress, and to institute a government, as they declared it, "in order to avert impending ruin, provide for the public safety, and transmit to their posterity those liberties which we had received from our ancestors." Now, what did they do? What did they call themselves? The gentleman from Boston, (Mr. Bartlett,) denied that there was any government. On that point I am at issue with him. This is a point of history which it would be well for us to settle. Now, I find among the first acts of that congress, as though they considered themselves a government, an address, on the 13th of October, to the Governor, in which they said that his course in endeavoring to prevent the convening of a great and general court, had rendered it absolutely necessary that the wisdom of the province should be collected together in a provincial congress, to concert some adequate remedy for preventing im

pending ruin, and providing for the public safety. On the 10th of December they did what? Issued a notice to any town that they had decided that it had no delegate? No. Hinted to any town that it had better send a delegate? No. They were not hinting, but plain spoken men. They sat in troublous times, and they acted bravely, and like men of determination. They recommended to the several towns and districts to elect and depute delegates to assemble at a stated time to resolve upon such further measures, as should be be necessary to provide for the public safety, and preserve those liberties they had derived from their ancestors, and which it was their duty and desire to transmit to their posterity.

Delegates were elected, and the Provincial Congress assembled at Cambridge, on Wednesday, February 1, 1775. One of the first acts of the government under this new Convention, Congress, Assembly, or House of Representatives-for it will be seen that they called themselves by all these names-was to resolve that they would vigorously pursue all measures heretofore adopted by the Provincial Congress for putting these colonies in a complete state of defence. On the 4th of April, they adopted an address inviting the Mohawk Indians to unite with them in an alliance of offence and defence. There they exercised the treaty making power. On the 5th of April, they prepared and adopted articles of war, prescribing the duties of officers and soldiers, the punishment of mutiny, &c. On the 26th of April, they directed new elections in the town of Haverhill in place of those obliged to return home in consequence of a fire in that place. Perhaps, it may be well to read the document prepared by the committee and addressed to the town clerk of Haverhill, to show how these men talked in that case. Haverhill that the not present? No. language:

Did they hint to the town of men they had elected were They used the following

"Sir:-The Congress have this day received a letter from Nathaniel Peaslee Sargeant, Esq., and Jonathan Webster, Esq., acquainting them that the late dreadful fire in Haverhill, together with some public disturbances in said town, make it necessary that they should be at home at this time. The Congress apprehended that the important business of the colonies requires that every town should be now represented; and therefore desire that if neither of those gentlemen can attend, others should be elected in their room that the wisdom of the whole colony may be collected at our hour of need."

They did not hint anything. They openly and plainly expressed their desire to have the whole people represented in that body. They did not send a notice that Mr. Somebody, Esq., was not in his place, and then hint that they would like to have some one sent in his stead, as is proposed to be done in the case before us. No, Sir, they assumed to themselves, if you please, some of the powers of government, and requested an election.

Again, this same no-government on the 3d of May, authorized bills of credit to be issued, and taken for money. That was a higher act of government than, under our present Constitution, the government of this Commonwealth can now do. On the 7th of May, they framed an oath of allegiance to be taken by their soldiers. Allegiance to what? If the gentleman from Boston be correct, an allegiance to a no-government. But

[May 11th.

it was an oath of allegiance requiring them to obey the laws and orders of the Provincial Congress. Such an oath of allegiance as Col. Ethan Allen had taken when he summoned Ticonderoga to surrender, "in the name of the Great Jehovah and the Continental Congress." He, at least, seemed to have an idea that there was a government somewhere. On the 8th of May, our fathers of the no-government passed an act directing robbers and prowlers to be apprehended and punished. On the 10th of May, they appointed postriders and established post-routes. On the 16th of May, they framed and passed an oath of allegiance for their general officers, requiring them to observe all orders passed by said Congress, or any future Congress or House of Representatives. On the 19th of May, they elected and commissioned a Major-General, and shortly after commissioned another general, Major-General Joseph Warren, who would have opened his eyes pretty widely, had he been told that he was a Major-General under a no-government. On the 27th of May, they established a court to punish treason and other crimes. June 1st, they issued a writ for a new election in the town of Eastham, for a member in the place of a person not legally chosen. They were not mealy-mouthed about it. All the mealy-mouths had gone over to Boston, to be under the protection of British guns. They seemed to think that they had a right to decide upon the matter. And we can see, too, by their action on the 6th of July, what they thought of themselves. Somebody undertook to speak disrespectfully of this no-government, and it is worth while to see how they acted in that case, for they did not hint in reference to it. They had taken a vote upon the granting of a commission to Col. Brewer, as a colonel of a regiment in the Massachusetts army, and out of 150 votes he received 70. Some lobby member outside-for it seems there were lobby members then as there are now-made use of the following expression: "By God, if this Province is to be governed in this manner, it is time for us to look out, and 't is all owing to the Committee of Safety, a pack of sap-head fellows. I know three of them myself."

"Whereupon, resolved that Mr. Edwards be directed to attend this House, to make answer to the above charge. Mr. Edwards being called in, and having heard the charge alleged against him, it was resolved that Mr. Edwards have leave to withdraw, and that he be directed to attend this Congress to-morrow morning, at 10 o'clock."

It appears that this Mr. Edwards seemed to think that there was a government, and a government de jure as well as de facto.

On the 20th of June, in pursuance of a resolve of the Continental Congress, then assembled at Philadelphia, they ordered a new election for a great and general court. But before that time, they had passed acts confiscating private property, and establishing light-houses-among the highest acts that a government can perform.

Now, not to be too tedious in the enumeration of the acts of government performed by this nogovernment, which nothing but my respect for the historical knowledge of the gentleman from Boston, (Mr. Bartlett,) would have led me to be so particular in, I will proceed more rapidly. In 1775 they placed an embargo on vessels, and on the same day disposed of prisoners of war. In Sept. 1775, they, by solemn act, removed all the officers appointed by any royal governor. In

Wednesday,]

FORM OF NOTICE TO THE TOWN OF BERLIN. — FROTHINGHAM — WALCOTT.

1776 they prescribed means for a more equal representation in the great and general court. It is pretty evident they thought there was a government. In May, 1776, they altered the style of all writs and processes, and ordered that they read in future, in the name of the government and people of Massachusetts Bay. That is what they called themselves, “the government of Massachusetts Bay." Again, in 1777, they passed statutes of limitation, confiscation, attainder and arrest of suspected persons. In 1778 they passed another act of confiscation, and also acts of banishment and outlawry of a great number of persons, with the penalty of death if they returned. In 1779 they passed acts regulating the exportation of certain goods. And finally, after one constitution, proposed by the general court, in 1778, had been rejected by the people, they passed an act, June 17, 1779, calling a Convention for the purpose of framing a constitution, issuing the call in almost the very words of the Act under which we are now assembled. When the Convention thus called, had assembled and found that there existed a vacancy in the town of Braintree, they issued a notice to that town in the form I have proposed to the Convention now.

I have been thus tedious in going over this matter, because I wished to show that there did exist a government de jure as well as de facto. Where did that government get its right? From the people of the province. There being then a government, they undertook to form a new government, or as they understood it-as I observed the other day, and for which, at some future time, I will give my reasons more at large-to revolutionize the then existing form of government, in which they were successful. Now we have a precedent for the request which I have incorporated in the form I have proposed. I understand that what the gentleman from Boston objects to in my form, is the request it contains. He does not discuss the other portion of it at all. What does he propose as a substitute?. Why, that we shall send to the town of Berlin a copy of our record, saying substantially,-You are notified that the seat of your delegate is vacant. What will that be worth? What will the selectmen of the town be likely to do? Will they not be likely to assemble and say,-"What does this mean? The seat of our delegate is vacant! We know all about that; we were told that long ago; we have seen that in the newspapers. What does all this mean?" Should they come down and ask the gentleman from Boston what he meant by this notice, he would say to them, that it was a gentle hint for them to elect somebody; and their answer will be "Why not say so, then?" At least that is what we would say if it were concerning our own business. Then let us do the people's business as we would our own. If you wanted, Mr. President, to invite a man to your house to dine, would you say so to him in so many words, or would you say,-I have a chair at my table, and a plate, and knife and fork upon it, &c. Now, all I want to send to the town of Berlin, is an invitation that we should be happy to consult with them for the good of the people of this Commonwealth-nothing more.

I have said that this Convention should say to the people of Berlin, that, in their opinion, a delegate should be chosen, according to the Act of the people under which we are assembled, because I believe that from that Act alone have we any

constitutional right to be here. I was pleased to hear the learned gentleman from Boston, (Mr. Sprague,)" say that that was the charter of this Convention, our constitution, in fact. I think with him upon that point. I would then ask, how can we alter it in any respect? It is our fundamental law, our organic law, our charter. The same learned gentleman will tell us that a charter cannot be altered except by agreement of the parties thereto. We shall hear of vested rights in charters before we go home, unless we are more than ordinarily fortunate. But I will not put it upon so narrow a ground as that. I put it upon the ground that the people said it was expedient to have a Convention, and that Convention was to be assembled under certain restrictions and safeguards which, in my judgment, they believed to be neces

sary.

Now, I have been asked if I would unseat the men in this Convention elected by open ballot. To that I answer, "Sufficient unto the day is the evil thereof." When that question arises there will be time enough to meet it. But perhaps it will not be out of place for me to say that I believe this is a convention of the people, and that we have the same power to carry on the business before us that the people would have in their primary capacity, and to associate with us any man whom we judge to be a true representative of the people, as the people themselves would do if they, instead of their delegates, were here. Believing that the whole thing rests upon that ground, I would be content to admit any gentleman, actually present here by the well ascertained votes of the majority of the people, by whatever form given. It may be asked, why then impose the restriction of secret ballot upon the town of Berlin? To that I answer, that although I am willing to sit and consult with any man who may have been elected by the fairly expressed will of the people, in whatever form that will may have been expressed, still when I come to act myself I am not willing to say that I believe a wrong course to be a right one. I am saying to the town of Berlin how I think I am here, and how I think their delegate should come here. If they want me to feel that their delegate is correct in every respect, let them elect him as the people last November directed that their delegates should be elected. That is why I impose this restriction upon the town of Berlin. It is one which, if I have any right to judge of the future by the past, the people of that town will thank me and every member of the Convention, for imposing. They will not feel it to be a restriction, but a recognition of a principle which will make every true heart in that town beat fuller, freer, casier. It is for that reason that I have proposed the order before you. Is there any precedent against it? No, there is not.

In 1820, Mr. President, this question did not arise; no man brought it before the Convention or asked to have it considered. But in 1820 an opinion was expressed upon this point. If gentlemen will turn to the 50th page of their Reports of the Convention of 1820, they will find that Mr. Bangs, of Worcester, in an argument as to whether the delegates from Plymouth were elected, used the following language: "Delegates may yet be chosen, and the Convention has now the power to issue precepts to elect delegates where vacancies exist, or to supply those which shall exist." I read this, Sir, because such men

[May 11th.

as Webster, Story, and John Adams participated in that Convention, and no man controverted that doctrine when it was announced distinctly in the course of the discussion. While I am willing to yield as much as I ought to the opinions of abler men who may differ from me, I shall feel it as a blow not to any political party but to the great party in this Commonwealth, the party of progress and reform, if this Convention shall stultify itself so far as to say that the right of the people can be interfered with by any act of their representative. I therefore bring this question up at an early day, to get an expression upon it when it shall unseat no man, and also to get the view of this Convention whether a delegate ought or ought not to be elected under the secret ballot. I have introduced the order in this form for no other purpose, in order that we may all understand how and by what right we hold our seats here; and I hope it will be the pleasure of the Convention to adopt it.

Mr. FROTHINGHAM, of Charlestown. If I could have obtained the floor on yesterday when this discussion was going on, I would have respectfully asked the learned and able gentleman from Boston whether the precedent of the Convention of 1780 did not actually cover this case completely, not exactly on account of the form of the order submitted by the gentleman from Lowell, but on account of other facts. I will not go over the historical details which must be known to members of this Convention, but will simply state this fact: that, after several attempts had been made to form a constitution, and several constitutions had been voted upon, the general court, such as it was, submitted to the people the question, whether they desired the general court to take measures to form a government; and the question was also submitted to the people, whether they desired to form a government through a Convention. The people voted upon these questions; and when the Convention came together in 1779, they assembled under a fundamental law, exactly in the same manner in which we have now come together. It is upon that basis that the precedent rests which has been cited, and which, it has been said, does not apply to this case. But under this state of the facts, I submit that the precedent does apply to the present case; and the first Convention, which was elected by the people to make a constitution, in filling vacancies, issued notices in the form which it is proposed to adopt in the present case. And what is it? It is not an order; it is not a command; it is not a requisition; but it is simply a frank invitation to the town of Berlin to elect a delegate to fill the vacancy, and an assurance that if they do so, the Convention will admit the delegate to a scat. For one, Sir, I shall vote for the order of the gentleman from Lowell.

Mr. WALCOTT, of Salem. I hope, Mr. President, that the amendment will prevail. I happened to be upon the Committee which had this matter under consideration. They agreed to report the exact state of facts which existed, and which are known to the Convention, viz.: that a delegate had been duly returned from the town of Berlin, according to the forms of law, and that that delegate had declined to serve in that capacity. I hope, Sir, that we shall not go further than that. It seems to me that there is an essential distinction between the law under which we have come together and the resolve of

Wednesday,]

REPORT OF COMMITTEE ON ELECTIONS. - DURGIN — LADD.

the 15th of June, 1779, which called the first Convention that formed the Constitution-I mean, so far as relates to this matter of election. In that resolve, if I recollect the provisions of it, there was no particular day prescribed upon which the members of the Convention were to be elected. It was a resolve merely that the selectmen of the several towns should be authorized to call town meetings at least fourteen days before the first day of September, on which day the delegates were to meet. There was no other provision and no other condition with regard to the election of members. Now, Sir, it seems to me to be entirely proper that when a member who has been elected declines to serve, notice should be given to the town of that fact; but that notice clearly confers no power whatever upon the town to elect. If they deem that they have power to elect, they can send a man here, and the Convention can determine whether they will admit him to a seat or not. I hope, therefore, that this Convention will adopt the amendment, and that we shall give notice to the town of Berlin of the precise state of facts, and no more, leaving them to act as they may deem proper, Anything further than that, on our part, would be entirely unauthorized.

Mr. DURGIN, of Wilmington. The view which I take of this whole matter is this. The town of Berlin has a right to elect a member to this Convention, or it has not a right to do itone way or the other. If an individual is elected by the town of Berlin to this Convention, the Convention will either receive that individual so elected as a member, or they will not-one way or the other. Furthermore, this Convention intends to receive an individual if elected, or it does not. There is another truth, clear and obvious. What is more, this Convention wishes Berlin to elect a member, and send him here, or it does not wish it. There is no neutral ground, Sir-not an inch of it. Well, Sir, if this Convention wishes Berlin to be represented here, let the body have frankness, dignity and manhood enough to say so; and if we do not want that town represented here, let us say so. Let us speak our determination with regard to the matter in plain language -in the "King's English." If we adopt this order, as originally offered, we express our wish that Berlin should be represented here; and where, after all, is the man who does not unite in that wish? If we do wish it, let us say so; if they have a right to elect another delegate, let us acknowledge it. If we are willing to receive him, let us tell them so. And, on the other hand, if we do not intend to receive their delegate, let us say so. I hope, Mr. President, that the amendment will not be adopted, but that we shall adopt the order of the gentleman from Lowell, and give the town of Berlin a plain intimation of what we want; and I hope we shall get a substantial man to represent that town here.

The amendment of Mr. Bartlett was rejected, and the order was then agreed to.

Report of Committee on Elections. The Report of the Committee on Elections, which was yesterday submitted by Mr. ABBOTT, of Lowell, was then taken up for consideration; and it was read. The Committee report that three hundred and fourteen cities and towns are represented in the Convention by four hundred and twenty-two delegates, and that eight towns, enti

tled to elect nine delegates, have neglected to make choice of any persons to represent them here; while seven vacancies exist in the delegations from the four cities of Lowell, Charlestown, Springfield and Newburyport. The Committee also give a statement of the facts in relation to the election of a delegate from the town of Walpole, concluding by expressing the opinion, that Francis W. Bird was duly elected from that town.

Mr. LADD, of Cambridge. Having been unable to concur with the majority of the Committee in this Report, so far as relates to a delegate from the town of Walpole, I consider it my duty to present to the Convention the grounds of that dissent. If it were a question involving merely a matter of form, or a principle less important, I might have consented silently to differ from the majority of that Committee. There appeared to be no question about the facts of the case. Α meeting was duly held by the inhabitants of Walpole, upon the 7th of March, for the purpose of choosing a delegate to the Convention; at which meeting, seven voters applied to vote, who resided upon a portion of territory which, on the 30th of April, 1852, had been set off from the town of Dedham to the town of Walpole. The question presented for the consideration of the Convention, is simply this. If these seven persons were legally entitled to vote in the town of Walpole, Mr. Bird was duly elected; but if they were not so entitled to vote, there was no election.

In the Act setting off a portion of the town of Dedham to the town of Walpole, approved April 30, 1852, it is provided "that the inhabitants hereby set off from Walpole shall continue to be a part of Dedham, for the purpose of electing representatives to the general court, until the next apportionment of representatives in the Commonwealth." By the Act in amendment of the Constitution in 1840, population was made the basis of the apportionment of representatives; and the governor and council were required, every tenth year, upon that basis, to make an apportionment of the representatives between the several towns and cities of the Commonwealth. In an opinion of the Supreme Court, upon interrogatories submitted by the legislature, dated March, 1851, they say that the territory of each town of the Commonwealth, as it existed at the time of the preceding apportionment of representatives by the governor and council, constitutes a fixed representative district, so to remain until the next apportionment; and, as a consequence, the legislature would not have a right to set off a portion of one town to another, so as to entitle the inhabitants thus set off to vote with the inhabitants of the town to which they may be annexed by the general court.

Then, by the Act to which it seems to me we must refer for authority in this matter, the Act calling this Convention, it is provided in the first section what shall constitute the qualifications, and the place of voting, so far as relates to taking the sense of the people upon the question of calling the Convention. The qualifications there named relate solely and exclusively to that voting. So far as relates to the election of delegates to this Convention, the authority is given in the second section of the Act; and to that I invite the attention of the Convention.

"If it shall be declared by the said proclamation that the majority of votes as aforesaid is in favor of choosing delegates as above-mentioned,

[May 11th.

the inhabitants of the several cities and towns within the Commonwealth, now entitled any one year to send one or, more representatives to the general court shall, on the first Monday of March in the year 1853, assemble in their several meetings," &c.

Now, in my judgment, it was the intention, both of the legislature which passed the Act, and of the people who adopted the Act, to establish the basis of representation for delegates to this Convention, as precisely the same and identical with the basis of representation for representatives to the general court; that the very inhabitants, the very voters, that constituted the basis in the choice of representatives, should constitute the basis in the election of delegates to this Convention. If that construction be correct, I was unable to see wherein the difference consisted between the mode of election of representatives and of delegates to this body. It seems to me clear that this was the intention of the people as well as of the legislature. It appears also that the subsequent portions of this section confirms the construction which I am compelled to give it. It provides that they "shall clect one or more delegates, not exceeding the number of representatives to which each town or city was entitled last year, it being the year in which the valuation of estates in the Commonwealth was settled, to meet delegates from other towns and cities in Convention, for the purposes hereinafter expressed."

The Report of the Committee involves this anomaly in the right of election, which exists nowhere else; that if a portion of the constituency of Dedham could thus go and deposit their votes in the ballot-box in Walpole, I do not see any distinction which gives them that privilege, and which would prevent any other citizens of Massachusetts from other towns, happening to be in the town of Walpole, from going and depositing their votes likewise. The section proceeds :—

"And at such meetings of the inhabitants, every person entitled to vote for representatives in the general court, shall have a right to vote in the choice of delegates."

That part of the section seems to me to have been intended by the legislature and the people to define the measure of qualification, the first part defining the measure of representation. This part refers to nothing but the qualifications of voters. The view is sustained by the whole apparent tenor of the Act, and is confirmed in all material particulars, that the election of delegates is made precisely to correspond with the choice of representatives to the general court; and the provisions in regard to the duties of officers required to preside at such town meetings, are made precisely the same, so far as they may be applicable. It appears therefore to me that these gentlemen had a right to vote in the town of Dedham, but had not a right to vote in the town of Walpole. Nor does it seem to me that it is a sufficient answer, that they might be disfranchised, if not allowed to vote in Walpole; that there is no provision in the Act setting them off from the town of Dedham to the town of Walpole, requiring the selectmen of Walpole to send a certified list of such persons to the selectmen of Dedham in such an election. The answer to that is this: although I do not see it stated in the Report, yet it was testified before the Committee, and there can be no question about the fact, that the selectmen of the town of Walpole did send a certified list of such

Wednesday,]

REPORT OF COMMITTEE ON ELECTIONS. — SIMMONS-LORD- PLUNKETT.

legal voters, to the selectmen of the town of Dedham, with the exception of two, who, I believe, did not happen at that time to have been for six months residing upon that territory, although the six months would have been completed upon the 7th of March, the day of the election. And furthermore, if it be said that these two voters would have been liable to lose their ballots, I reply that it is provided by law, in the Revised Statutes, that it shall be the duty of the selectmen-and it applies to the election of delegates to this Convention as well as to the election of representatives--to preside at such elections. There must consequently be present at all times a majority of the selectmen; and in order to secure the rights of voters, it is provided that if the name be not upon the list, upon furnishing the evidence that the person is entitled to vote, his name shall be placed upon the list, and he shall be allowed to vote.

For these reasons, and I will not trouble the Convention by stating my views further, I was unable to concur with the majority of the Committee in this Report, so far as relates to the delegate from the town of Walpole; and for the purpose of placing the question fairly before the Convention, I move that so much of the Report as relates to the election of a delegate from the town of Walpole, be recommitted, with instructions to report a vacancy in that town.

Mr. SIMMONS, of Hanover, obtained the floor, but vielded to

Mr. LORD, of Salem, who said: As the gentleman is upon the Committee, I desire to ask him a question. I see reported the name of the town of West Roxbury, and no representative against it. There are eight towns reported as having vacancies, in consequence of having made no choice, and among them is not West Roxbury. I wish to inquire why the Committee did not report a vacancy in West Roxbury.

Mr. SIMMONS, of Hanover. The Chairman of the Committee on Elections, (Mr. Abbott, of Lowell,) in consequence of sickness in his family, is unfortunately absent at this time. I had hoped that he would be here to defend the report, as he is more particularly acquainted with it than myself. First, as to the question asked by the gentleman from Salem, it was understood by the Committee, no person appearing, and the question not being directly brought before us, that the citizens of West Roxbury and of Roxbury all voted together. There were credentials returned, I believe, for a delegate for West Roxbury. But it was stated that he was clected both in Roxbury and in West Roxbury, by a sort of understanding, so that there should be no difficulty, and they should have a representative here. In either view of the case, there can be no vacancy there.

Mr. LORD. I will ask the gentleman in relation to the town of Marion, in Plymouth County, which is reported as having no representative, and yet is not reported as having failed to elect. Will he tell us why that is so?

Mr. SIMMONS. I do not know that that case was particularly before the Committee. Whenever it comes up, we shall be prepared to meet it, and to settle it, I trust, upon its own merits. "Sufficient unto the day is the evil thereof." I prefer at this time to consider the question with regard to the town of Walpole, and not to attempt to explain in relation to every other town which the gentleman from Salem may wish to ask ques

tions about.

In looking at this matter, the Committee were somewhat oppressed by the opinion which the gentleman from Cambridge (Mr. Ladd) has expressed. At the first view, I think the majority of the Committee would have concurred in that opinion; but upon looking carefully at the two statutes, comparing their dates, and the time when they were to go into effect, and also examining the statutes where these various terms are used, expressing the qualifications of voters, the Committee, with the exception of that gentleman only, I think, came to the conclusion contained in the Report which we have submitted.

In the Act setting off the inhabitants of a portion of the town of Dedham to the town of Walpole, we find that it provides:—

"The said inhabitants, hereby set to Walpole, shall continue to be a part of Dedham, for the purpose of electing representatives to the general court, until the next apportionment of representatives in the Commonwealth."

That provision, Mr. President, it is well known, was in consequence of a provision in the Constitution, with the decision of the Supreme Court under it, that we shall not change the representative districts except once in ten years. For all other purposes for which they could constitutionally vote, it was understood and intended by the legislature, that they should vote in the town where they were placed. In the first section of the Act calling the Convention, we find the provision, that "the inhabitants of the several cities, towns, districts, and places within this Commonwealth, qualified to vote for senators or representatives in the general court, shall, on the second Monday of November next," meet and vote upon the question whether or not we shall have a Convention. The phrase used there is, "senators or representatives." Then in case a Convention is agreed upon, it is provided that "the inhabitants of the several cities and towns within the Commonwealth now entitled any one year to send one or more representatives to the general court," shall meet, &c. The inhabitants of Walpole included this portion of Dedham. The inhabitants are spoken of in a body, and not in relation to the small portion or large portion that might vote in a particular place. But if we adopt the other construction, and say that it means only the men that may vote in that town for representatives, we disfranchise these individuals set off to the town of Walpole. They are not inhabitants of the town of Dedham; and if they cannot vote in Walpole in the election of delegates to this Convention, they can vote nowhere. We find also in the same section :

"And at such meetings of the inhabitants, every person entitled to vote for representatives in the general court, shall have a right to vote in the choice of delegates."

This was a meeting of the inhabitants of the town of Walpole. Those inhabitants of Walpole who voted, were entitled to vote for representatives in the general court. A portion of them, it is true, were not entitled to vote for representatives in the general court, in the town of Walpole; but, in the opinion of the Committee, this was a description of the class of persons entitled to vote, and the Act might just as well have read, the inhabitants qualified to vote in the elections of town officers, or of governor, or of senators. If any gentleman will take the trouble to look at the Revised Statutes, where voters are spoken of, he

[May 11th.

will see that these are convertible terms, sometimes one expression being used, and sometimes another. These were the principal reasons which influenced the Committee. They believed it to have been the intention of the legislature that every qualified voter should have the privilege of being represented here. These voters voted there in good faith, and voted nowhere else. The Committee, therefore, thought, that in fairness and equity, they should be represented. The matter should be placed upon a broader and more liberal ground than in the election of representatives; for we are not met to enact laws which can interfere with the rights of any part of the Commonwealth. All we can do is to deliberate, and to frame a Constitution upon which the people are to give their votes, whether it shall be adopted as the organic law of the State,-aye or no. The instrument which we shall submit to the people, will have no more authority than though you, Mr. President, should send out an instrument prepared by yourself, and should ask the people whether they would adopt your frame of government as their organic law. And if the people should properly sanction an instrument, however unauthorized, emanating from any member of this body, or any person out of it, it would have as much vitality, and be as much the law of the land, as though it had emanated from this Convention.

Mr. PLUNKETT, of Adams. It seems to me that if we are to be guided by precedent, we ought to be a little careful what precedents we set for others. I am a member of the Committee on Elections but not having been notified of their time of meeting, I was not present when the matter was acted upon. I accord, however, with the gentleman from Cambridge, (Mr. Ladd,) in the view he has taken of this matter. The law setting off a portion of the town of Dedham to the town of Walpole has been read, in which it says that the selectmen of Walpole shall make out a true list of the qualified voters for representatives in the portion thus set off, and deliver the same to the town of Dedham. The Act under which this Convention is assembled provides that in the election of delegates every person who had a right to vote for representatives in the General Court, should have a right to vote for delegates. Now I suppose these seven gentlemen had a right to vote for a representative somewhere, and also a right to vote for a delegate somewhere. The Act calling this Convention provides that the elections should be held in the same manner, and presided over by the same officers as in the case of representatives in the General Court, and the votes were to be received in the same manner. It cannot be, it seems to me, that it was intended that any one should vote in one place for representatives and in another for delegates. The Act also provides that all orders in force regulating the election of representatives should be continued in force and applied to the election of delegates to this Convention. An Act passed on the 30th of April preceding, requires these seven gentlemen to vote for representative in the town of Dedham. Now, I submit to this Convention, whether, under this Act, these gentlemen were entitled to vote in the town of Walpole. They had a right to vote in Dedham where there was a poll held, and why could they not have gone there and voted?

It seems to me that the case is a very clear one. I have no wish to disfranchise any town. I have

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