(May 11th.


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

Free Ilomestead.
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 ('ommonwealth 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. CUSIIMAN, of Bernardston,

for which the members of either House shall have such decision, to provide by law for the election
been elected. Yo Senator or Representative of delegatus to such Convention.
shall, during the term for which he shall have
been elected, be appointed to any office by the Form of Notice to the Town of Berlin.
Governor or Legislature; nor shall any Senator

On motion by Mr. GARDNER, of Seekonk,
or Representative be appointed by the Governor
or Legislature, within one year after his term

The ('onvention proceeded to the consideration shall have expired, to any office which shall have of the order submitted by Mr. Butler, of Lowell, been created, or the emoluments of which shall prescribing the form in which the Secretary shall have been increased during such term. A major- notify the town of Berlin of the vacancy existing ity of each House shall constitute a quorum to

in the delegation from that town, and request the do business, but a smaller number may adjourn from day to day, and compel the attendance of

election of another delegate ; to which Mr. Bartabsent members in such manner and under such

lett, of Boston, had moved the following substipenalties as each House may provide. No private ('tute :or local bill shall embrace more than one subject, and that shall be expressed in the title. No law

Resolred, That the Secretary, in notifying the shall be revised or amended by reference to its

town of Berlin of the vacancy in the Conventitle, but in such case the provision shall be re

tion, be directed to forward to that town a certienacted and published at length.

fied copy of the order adopted by the Convention

upon that subject. Freedom of Ballot.

Mr. BUTLER. Having submitted the order On motion by Mr. CHURCHILL, of Milton, which is sought to be amended by the gentleman Ordered, That the Committee to whom was re

from Boston, it becomes my duty, perhaps, to ferred so much of the Constitution as relates to the

state, as briefly as I may, the reasons why I subQualifications of Voters, be instructed to inquire

mitted the form which I propose should be adoptinto the expediency of so amending the Constitu- ed. I offered that form, in the first place, because tion as to provide for freedom of ballot, in con- I had respect for the precedent established by the formity with the provisions of the Act entitled

Convention of 1780, which I have followed with “ An Act for the better security of the Ballot," passed in the year 1851, and the Act in addition

a single exception, made necessary by a change of thereto, approved May 20th, 1852.

time and of circumstances. The form is almost

the precise language adopted by the Convention Comptroller.

of 1780, when that Convention requested an elecOn motion by Mr. HALL, of Haverhill,

tion in the town of Braintree of a delegate in place

of John Adams, who had sailed for Europe upon Ordered, That the Committee having under an appointment from Congress. consideration that portion of the ('onstitution re

In the second place—perhaps only second in lating to Secretary and Treasurer, &c., be instructed to inquire into the expediency of recognizing

order of time-I submitted that form because I an additional officer, to be called the “ Comp

want, if possible, to get an authoritative expression, troller," and report thereon.

by this Convention, upon the question, whether

we were sent here by the will of the people, Tar Qualification.

expressed last November, or by any other authorOn motion by Mr. ELY, of Westfield,

ity whatever. And it does it in this way. The

order directs the Secretary to signify to the town Ordered, That the Committee under the 14th of Berlin that it is the opinion of this Convention resolution, relating to the Qualifications of Voters, that a delegate should be elected according to the be instructed to consider the expediency of so amending the Constitution as to require that no

forms and according to the substance of the Act tax qualification shall constitute a legal voter in

which was adopted and recognized by the people, this Commonwealth, and report thereon.

and in no other mode. I beg not to be misun

derstood. I mean to express, by the order, that it Credit of the State.

is the judgment of the Convention, that the deleOn motion by Mr. BROWN, of Dracut, gate ought to be elected in the mode pointed out

by the Act as adopted and ratified by the people, Ordered, That a Special Committee of thirteen

and by no other form whatever. So the Convenbe appointed to inquire and report to the Convention upon the expediency of so amending the Con

tion at once see that we come to a question of no stitution that the legislature shall have no right to

very inconsiderable importance, whether or not. loan the credit of the State to any individual or the election by secret ballot, as adopted by the corporation, or to contract any debt, for any pur- people, is a proper form of election, or whether pose except to carry on the government, to pay its the election should be by some other mode necessary expenses, to repel invasion, or to suppress insurrection.

pointed out by some other body which had no

business to interfere with it. I prefer that we Constitutional Conventions.

should come to this question, in limine, at the On motion by Mr. GOURGAS,

threshold; because the decision upon it will

have a great influence upon my action hereafter. Ordered, That the Committee who have under This is the question, whether we sit here by the consideration so much of the Constitution as re- will of the legislature, or whether we sit here by lates to the amendment thereof, consider the ex- the will of the people, and that alone. Are genpediency of providing, that in the general election

tlemen willing to admit that our charter is from held in the year 1868, and every fifteenth year thereafter, and also at such other times as the

the legislature, or will they assert that we are legislature may by law provide, the question,

here by the will of the people and that alone? “ Shall there be a Convention to revise the Con- Now, Sir, to go back to the first question prestitution and amend the same ?" shall be submit

sented, to wit, whether the precedent established ted to the electors qualified to vote for members of

by the Convention of 1780 should have weight with the legislature; and in the event that the electors so qualified, in such election, decide in favor of

us, I understood that it was argued by the gentleholding a Convention, that it shall be the duty of

man who offered the amendment, that although the legislature, at its session next ensuing after the precedent was in favor of the order I submit

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



[May 11th,

ted, yet at the time of the adoption of the Consti- pending ruin, and providing for the public safety. tution in 1780, there was no government in this On the 10th of December they did what? Issued Commonwealth, (then a province,) rightfully sit- a notice to any town that they had decided that it ting, and rightfully acting, or acting in fact; and had no delegate ? No. Hinted to any town that that, therefore, the Convention of 1780 was unlike it had better send a delegate : No. They were this Convention. I may have misunderstood not hinting, but plain spoken men. They sat in him, but I think I have stated the point correctly. troublous times, and they acted bravely, and like The precedent ought not to have weight, because men of determination. They recommended to there was no government in 1779–80, under the several towns and districts to elect and dewhich that Convention could be called ; and pute delegates to assemble at a stated time to retherefore that Convention exercised other and solve upon such further measures, as should be different powers from those which we exercise. If be necessary to provide for the public safety, and that be correct in point of fact-if it be correct in

preserve those liberties they had derived from their point of history-then I grant you that the weight ancestors, and which it was their duty and desire of the precedent falls; but if he happens to be to transmit to their posterity. wrong—as I shall have the honor of submitting to Delegates were elected, and the Provincial Conthe Convention that he is—both in point of fact gress assembled at Cambridge, on Wednesand in point of history, then the precedent stands day, February 1, 1775. One of the first acts of with all the importance of its own intrinsic au- the government under this new Convention, thority.

Congress, Assembly, or House of RepresentaNow, was there any government in 1779 and tives—for it will be seen that they called them'80: I beg pardon of the Convention for tres- selves by all these names—was to resolve that passing upon their time, but I will be brief while

they would vigorously pursue all measures hereI refresh the memory of all here in reference to tofore adopted by the Provincial Congress for the state of things which brought about the for- putting these colonies in a complete state of mation of the government under which we fought defence. On the 4th of April, they adopted an the struggles of the Revolution. Let us go back address inviting the Mohawk Indians to unite for a moment to the beginning. In 1691, Wil- with them in an alliance of offence and defence. liam and Mary renewed the charter granted to There they exercised the treaty making power. the colony by Charles the First. In that charter On the 5th of April, they prepared and adopted it was provided, that in the absence both of the articles of war, prescribing the duties of officers Royal Governor and Lieutenant-Governor, a ma- and soldiers, the punishment of mutiny, &c. On jority of the Council should have a negative voice the 26th of April, they directed new elections in upon the passage of laws—that Council bearing the town of Haverhill in place of those obliged to the same relation to the government as our Council return home in consequence of a fire in that place. do at present to our Governor. Now, to come

Perhaps, it may be well to read the document further down; in 1774, General Gage ordered an prepared by the committee and addressed to the election of representatives to the great general town clerk of Haverhill, to show how these men court. After the delegates were elected, not talked in that case. Did they hint to the town of finding them the supple tools of power he ex- Haverhill that the men they had elected were pected, he issued his proclamation and ordered not present? No. They used the following them not to convene at Salem, where they were at language :first directed to assemble, and sent them notice that, should they assemble, he would not be “Sir :—The Congress have this day received a present. Notwithstanding this prohibition, ninety letter from Nathaniel Peaslee Sargeant, Esq., and of the representatives, being a large majority of all

Jonathan Webster, Esq., acquainting them that the elected, assembled at Salem on the 5th of October,

late dreadful fire in Haverhill, together with some

public disturbances in said town, make it neces1774, the day appointed, and after waiting a day,

sary that they should be at home at this time. as they believed themselves in duty bound to do, The Congress apprehended that the important for the Royal Governor to make his appearance, business of the colonies requires that every town in order to administer the usual oaths; and when should be now represented; and therefore desire it became certain that his presence could not be

that if neither of those gentlemen can attend,

others should be elected in their room that the expected, they then proceeded, not doubtingly,

wisdom of the whole colony may be collected at not hintingly, but boldly and openly, to organize

our hour of need." a convention or provincial congress, and to institute a government, as they declared it, “in order They did not hint anything. They openly and to avert impending ruin, provide for the public plainly expressed their desire to have the whole safety, and transmit to their posterity those liber- people represented in that body. They did not ties which we had received from our ancestors.” send a notice that Mr. Somebody, Esq., was not

Now, what did they do? What did they call in his place, and then hint that they would like themselves? The gentleman from Boston, (Mr. to have some one sent in his stead, as is proposed Bartlett,) denied that there was any government. to be done in the case before us. No, Sir, they On that point I am at issue with him. This is a assumed to themselves, if you please, some of the point of history which it would be well for us to powers of government, and requested an election. settle. Now, I find among the first acts of that Again, this same no-government on the 3d of congress, as though they considered themselves a May, authorized bills of credit to be issued, and government, an address, on the 13th of October, to taken for money. That was a higher act of govthe Governor, in which they said that his course ernment than, under our present Constitution, in endeavoring to prevent the convening of a great the government of this Commonwealth can now and general court, had rendered it absolutely do. On the 7th of May, they framed an oath of necessary that the wisdom of the province should allegiance to be taken by their soldiers. Allebe collected together in a provincial congress, to giance to what? If the gentleman from Boston be concert some adequate remedy for preventing im- correct, an allegiance to a no-government. But

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,]


[May 11th.

1776 they prescribed means for a more equal rep- constitutional right to be here. I was pleased to hear as Webster, Story, and John Adams particiresentation in the great and general court. It is the learned gentleman from Boston, (Mr. Sprague,) | pated in that Convention, and no man contropretty evident they thought there was a govern- say that that was the charter of this Convention, verted that doctrine when it was announced disment. In May, 1776, they altered the style of our constitution, in fact. I think with him upon tinctly in the course of the discussion. While I all writs and processes, and ordered that they that point. I would then ask, how can we alter am willing to yield as much as I ought to the read in future, in the name of the government it in any respect? It is our fundamental law, our opinions of abler men who may differ from me, and people of Massachusetts Bay. That is what

organic law, our charter. The same learned gen- I shall feel it as a blow not to any political party they called themselves, " the government of Mas- tleman will tell us that a charter cannot be altered but to the great party in this Commonwealth, sachusetts Bay." Again, in 1777, they passed

except by agreement of the parties thereto. We the party of progress and reform, if this Convenstatutes of limitation, confiscation, attainder and shall hear of vested rights in charters before we tion shall stultify itself so far as to say that the arrest of suspected persons. In 1778 they pass- go home, unless we are more than ordinarily for- right of the people can be interfered with by any ed another act of confiscation, and also acts of

tunate. But I will not put it upon so narrow a act of their representative. I therefore bring this banishment and outlawry of a great number of ground as that. I put it upon the ground that question up at an early day, to get an expression persons, with the penalty of death if they return- the people said it was expedient to have a Con- upon it when it shall unseat no man, and also to ed. In 1779 they passed acts regulating the ex- vention, and that Convention was to be assem- get the view of this Convention whether a deleportation of certain goods. And finally, after one bled under certain restrictions and safeguards gate ought or ought not to be elected under the constitution, proposed by the general court, in which, in my judgment, they believed to be neces- secret ballot. I have introduced the order in this 1778, had been rejected by the people, they passsary.

form for no other purpose, in order that we may ed an act, June 17, 1779, calling a Convention for

Now, I have been asked if I would unseat the all understand how and by what right we hold the purpose of framing a constitution, issuing the

men in this Convention elected by open ballot. our seats here; and I hope it will be the pleasure call in almost the very words of the Act under To that I answer, “Sufficient unto the day is the of the Convention to adopt it. which we are now assembled. When the Con

evil thereof." When that question arises there Mr. FROTHINGHAM, of Charlestown. If vention thus called, had assembled and found that

will be time enough to meet it. But perhaps it I could have obtained the floor on yesterday there existed a vacancy in the town of Braintree, will not be out of place for me to say that I be- when this discussion was going on, I would have they issued a notice to that town in the form I

lieve this is a convention of the people, and that respectfully asked the learned and able gentleman have proposed to the Convention now.

we have the same power to carry on the business from Boston whether the precedent of the ConI have been thus tedious in going over this before us that the people would have in their vention of 1780 did not actually cover this case matter, because I wished to show that there did

primary capacity, and to associate with us any completely,—not exactly on account of the form exist a government de jure as well as de facto.

man whom we judge to be a true representative of the order submitted by the gentleman from Where did that government get its right? From of the people, as the people themselves would do Lowell, but on account of other facts. I will not the people of the province. There being then a if they, instead of their delegates, were here. Be- go over the historical details which must be government, they undertook to form a new gov- lieving that the whole thing rests upon that known to members of this Convention, but will ernment, or as they understood it-as I observed

ground, I would be content to admit any gentle- simply state this fact : that, after several attempts the other day, and for which, at some future time,

man, actually present here by the well ascer- had been made to form a constitution, and several I will give my reasons more at large-to revolu- tained votes of the majority of the people, by constitutions had been voted upon, the general tionize the then existing form of government, in whatever form given. It may be asked, why court, such as it was, submitted to the people which they were successful. Now we have a then impose the restriction of secret ballot upon the question, whether they desired the general precedent for the request which I have incorpo

the town of Berlin? To that I answer, that court to take measures to form a government; rated in the form I have proposed. I understand although I am willing to sit and consult with any and the question was also submitted to the people, that what the gentleman from Boston objects to man who may have been elected by the fairly ex- whether they desired to form a government in my form, is the request it contains. He does

pressed will of the people, in whatever form that through a Convention. The people voted upon not discuss the other portion of it at all. What will may have been expressed, still when I come these questions; and when the Convention came does he propose as a substitute?. Why, that we

to act myself I am not willing to say that I be- together in 1779, they assembled under a fundashall send to the town of Berlin a copy of our lieve a wrong course to be a right one. I am mental law, exactly in the same manner in which record, saying substantially,-You are notified saying to the town of Berlin how I think I am we have now come together. It is upon that that the seat of your delegate is vacant. What here, and how I think their delegate should come basis that the precedent rests which has been will that be worth? What will the selectmen of

here. If they want me to feel that their delegate cited, and which, it has been said, does not apply the town be likely to do? Will they not be likely | is correct in every respect, let them elect him as

to this case. But under this state of the facts, I to assemble and say,—" What does this mean? the people last November directed that their dele- submit that the precedent does apply to the The seat of our delegate is vacant ! We know gates should be elected. That is why I impose present case; and the first Convention, which all about that; we were told that long ago; we this restriction upon the town of Berlin. It is was elected by the people to make a constitution, have seen that in the newspapers. What does all one which, if I have any right to judge of the in filling vacancies, issued notices in the forin this mean?" Should they come down and ask

future by the past, the people of that town will which it is proposed to adopt in the present case. the gentleman from Boston what he meant by this thank me and every member of the Convention, And what is it? It is not an order; it is not a notice, he would say to them, that it was a gentle for imposing. They will not feel it to be a re- command; it is not a requisition; but it is simply hint for them to elect somebody; and their an- striction, but a recognition of a principle which a frank invitation to the town of Berlin to elect a swer will be —" Why not say so, then?" At will make every true heart in that town beat delegate to fill the vacancy, and an assurance that least that is what we would say if it were con- fuller, freer, easier. It is for that reason that I if they do so, the Convention will admit the delecerning our own business. Then let us do the have proposed the order before you. Is there gate to a seat. For one, Sir, I shall vote for the people's business as we would our own. If you any precedent against it? No, there is not. order of the gentleman from Lowell. wanted, Mr. President, to invite a man to your In 1820, Mr. President, this question did not Mr. WALCOTT, of Salem. I hope, Mr. house to dine, would you say so to him in so arise; no man brought it before the Convention President, that the amendment will prevail. I many words, or would you say,- I have a chair or asked to have it considered. But in 1820 an happened to be upon the Committee which had at my table, and a plate, and knife and fork upon opinion was expressed upon this point. If gen- this matter under consideration. They agreed to it, &c. ? Now, all I want to send to the town of tlemen will turn to the 50th page of their Reports report the exact state of facts which existed, and Berlin, is an invitation that we should be happy of the Convention of 1820, they will find that which are known to the Convention, viz.: that a to consult with them for the good of the people Mr. Bangs, of Worcester, in an argument as to delegate had been duly returned from the town of this Commonwealth-nothing more.

whether the delegates from Plymouth were of Berlin, according to the forms of law, and I have said that this Convention should say to elected, used the following language: “Delegates that that delegate had declined to serve in that the people of Berlin, that, in their opinion, a del- may yet be chosen, and the Convention has now capacity. I hope, Sir, that we shall not go egate should be chosen, according to the Act of the power to issue precepts to elect delegates further than that. It seems to me that there is the people under which we are assembled, because where vacancies exist, or to supply those which an essential distinction between the law under I believe that from that Act alone have we any shall exist." I read this, Sir, because such men which we have come together and the resolve of Wednesday,]


[May 11th.

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 it, one 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 80; 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.

tled to elect nine delegates, have neglected to make the inhabitants of the several cities and towns
choice of any persons to represent them here; within the Commonwealth, now entitled any one
while seven vacancies exist in the delegations year to send one or more representatives to the
from the four cities of Lowell, Charlestown, general court shall, on the first Monday of March
Springfield and Newburyport. The Committee in the year 1853, assemble in their several meet-
also give a statement of the facts in relation to ings," &c.
the election of a delegate from the town of Wal- Now, in my judgment, it was the intention,
pole, concluding by expressing the opinion, that both of the legislature which passed the Act, and
Francis W. Bird was duly elected from that town. of the people who adopted the Act, to establish the

Mr. LADD, of Cambridge. Having been un- basis of representation for delegates to this Conable to concur with the majority of the Committee vention, as precisely the same and identical with in this Report, so far as relates to a delegate from the basis of representation for representatives to the town of Walpole, I consider it my duty to the general court; that the very inhabitants, the present to the Convention the grounds of that very voters, that constituted the basis in the choice dissent. If it were a question involving merely of representatives, should constitute the basis in a matter of form, or a principle less important, I the election of delegates to this Convention. If might have consented silently to differ from the that construction be correct, I was unable to see majority of that Committee. There appeared to wherein the difference consisted between the be no question about the facts of the case. A mode of election of representatives and of delemeeting was duly held by the inhabitants of gates to this body. It seems to me clear that this Walpole, upon the 7th of March, for the purpose was the intention of the people as well as of the of choosing a delegate to the Convention; at which legislature. It appears also that the subsequent meeting, seven voters applied to vote, who re- portions of this section confirms the construction sided upon a portion of territory which, on the which I am compelled to give it. It provides that 30th of April, 1852, had been set off from the they “shall elect one or more delegates, not extown of Dedham to the town of Walpole. The ceeding the number of representatives to which question presented for the consideration of the

each town or city was entitled last year, it being Convention, is simply this. If these seven persons the year in which the valuation of estates in the were legally entitled to vote in the town of Wal- Commonwealth was settled, to meet delegates from pole, Mr. Bird was duly elected; but if they were other towns and cities in Convention, for the purnot so entitled to vote, there was no election. poses hereinafter expressed."

In the Act setting off a portion of the town of The Report of the Committee involves this anomDedham to the town of Walpole, approved April aly in the right of election, which exists nowhere 30, 1852, it is provided “that the inhabitants else ; that if a portion of the constituency of Dedhereby set off from Walpole shall continue to be ham could thus go and deposit their votes in the a part of Dedham, for the purpose of electing ballot-box in Walpole, I do not see any distincrepresentatives to the general court, until the tion which gives them that privilege, and which next apportionment of representatives in the would prevent any other citizens of Massachusetts Commonwealth.” By the Act in amendment of from other towns, happening to be in the town of the Constitution in 1840, population was made Walpole, from going and depositing their votes the basis of the apportionment of representatives ; likewise. The section proceeds :and the governor and council were required, “And at such meetings of the inhabitants, evevery tenth year, upon that basis, to make an ap- ery person entitled to vote for representatives in portionment of the representatives between the the general court, 'shall have a right to vote in several towns and cities of the Commonwealth. the choice of delegates.” In an opinion of the Supreme Court, upon in- That part of the section seems to me to have terrogatories submitted by the legislature, dated been intended by the legislature and the people to March, 1851, they say that the territory of each define the measure of qualification, the first part town of the Commonwealth, as it existed at the defining the measure of representation. This time of the preceding apportionment of represen- part refers to nothing but the qualifications of votatives by the governor and council, constitutes ters. The view is sustained by the whole appara fixed representative district, so to remain until ent tenor of the Act, and is confirmed in all matethe next apportionment; and, as a consequence, rial particulars, that the election of delegates is the legislature would not have a right to set off a made precisely to correspond with the choice of portion of one town to another, so as to entitle the representatives to the general court; and the proinhabitants thus set off to vote with the inhabitants visions in regard to the duties of officers required of the town to which they may be annexed by the to preside at such town meetings, are made pregeneral court.

cisely the same, so far as they may be applicable. Then, by the Act to which it seems to me we It appears therefore to me that these gentlemen must refer for authority in this matter, the Act had a right to vote in the town of Dedham, but calling this Convention, it is provided in the first had not a right to vote in the town of Walpole. section what shall constitute the qualifications, Nor does it seem to me that it is a sufficient anand the place of voting, so far as relates to taking swer, that they might be disfranchised, if not althe sense of the people upon the question of call- lowed to vote in Walpole ; that there is no proing the Convention. The qualifications there vision in the Act setting them off from the town named relate solely and exclusively to that voting. of Dedham to the town of Walpole, requiring the So far as relates to the election of delegates to this selectmen of Walpole to send a certified list of Convention, the authority is given in the second such persons to the selectmen of Dedham in such section of the Act; and to that I invite the atten- an election. The answer to that is this : although tion of the Convention.

I do not see it stated in the Report, yet it was tes“ If it shall be declared by the said proclama- tified before the Committee, and there can be no tion that the majority of votes as aforesaid is in question about the fact, that the selectmen of the favor of choosing delegates as above-mentioned, town of Walpole did send a certified list of such

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 reprcsented in the Convention by four hundred and twenty-two delegates, and that eight towns, enti



[May 11th.

legal voters, to the selectmen of the town of Ded- In looking at this matter, the Committee were will see that these are convertible terms, someham, with the exception of two, who, I believe, somewhat oppressed by the opinion which the times one expression being used, and sometimes did not happen at that time to have been for six gentleman from ('ambridge (Mr. Ladd) has ex- another. These were the principal reasons which months residing upon that territory, although the pressed. At the first view, I think the majority | influenced the Committee. They believed it to six months would have been completed upon the of the Committee would have concurred in that have been the intention of the legislature that every 7th of March, the day of the election. And fur- opinion ; but upon looking carefully at the two qualified voter should have the privilege of being thermore, if it be said that these two voters would statutes, comparing their dates, and the time represented here. These voters voted there in have been liable to lose their ballots, I reply that when they were to go into effect, and also exam-good faith, and voted nowhere else. The Comit is provided by law, in the Revised Statutes, that ining the statutes where these various terms are mittee, therefore, thought, that in fairness and it shall be the duty of the selectmen--and it ap- used, expressing the qualifications of voters, the equity, they should be represented. The matter plies to the election of delegates to this Conven- Committee, with the exception of that gentleman should be placed upon a broader and more liberal tion as well as to the election of representatives only, I think, came to the conclusion contained in ground than in the election of representatives; to preside at such elections. There must conse- the Report which we have submitted.

for we are not met to enact laws which can interquently be present at all times a majority of the In the Act setting off the inhabitants of a por- fere with the rights of any part of the Comselectmen; and in order to secure the rights of tion of the town of Dedham to the town of Wal- monwealth. All we can do is to deliberate, and voters, it is provided that if the name be not upon pole, we find that it provides :

to frame a Constitution upon which the people the list, upon furnishing the evidence that the "The said inhabitants, hereby set to Walpole, are to give their votes, whether it shall be adoptperson is entitled to vote, his name shall be placed shall continue to be a part of Dedham, for the ed as the organic law of the State,-aye or no. upon the list, and he shall be allowed to vote. purpose of electing representatives to the general | The instrument which we shall submit to the

For these reasons, and I will not trouble the court, until the next apportionment of represen- | people, will have no more authority than though Convention by stating my views further, I was tatives in the Commonwealth."

you, Mr. President, should send out an instruunable to concur with the majority of the Com- That provision, Mr. President, it is well known, ment prepared by yourself, and should ask the mittee in this Report, so far as relates to the dele- was in consequence of a provision in the Consti- people whether they would adopt your frame of gate from the town of Walpole ; and for the pur- tution, with the decision of the Supreme Court government as their organic law. And if the pose of placing the question fairly before the Con- under it, that we shall not change the representa- people should properly sanction an instrument, vention, I move that so much of the Report as tive districts except once in ten years. For all however unauthorized, emanating from any memrelates to the election of a delegate from the town other purposes for which they could constitution- ber of this body, or any person out of it, it would of Walpole, be recommitted, with instructions to ally vote, it was understood and intended by the have as much vitality, and be as much the law of report a vacancy in that town.

legislature, that they should vote in the town the land, as though it had emanated from this Mr. SIMMONS, of Hanover, obtained the where they were placed. In the first section of Convention. floor, but yielded to the Act calling the Convention, we find the pro

Mr. PLUNKETT, of Adams. It seems to me Mr. LORD, of Salem, who said : As the gen- vision, that “the inhabitants of the several cities, that if we are to be guided by precedent, we ought tleman is upon the Committee, I desire to ask towns, districts, and places within this Common- to be a little careful what precedents we set for him a question. I see reported the name of the wealth, qualified to vote for senators or represen- others. I am a member of the Committee on town of West Roxbury, and no representative tatives in the general court, shall, on the second Elections but not having been notified of their against it. There are eight towns reported as hav- Monday of November next," meet and vote upon time of meeting, I was not present when the mating vacancies, in consequence of having made no the question whether or not we shall have a Con- ter was acted upon. I accord, however, with the choice, and among them is not West Roxbury. I vention. The phrase used there is, “senators or gentleman from Cambridge, (Mr. Ladd,) in the wish to inquire why the ('ommittee did not report representatives.” Then in case a Convention is view he has taken of this matter. The law seta vacancy in West Roxbury.

agreed upon, it is provided that "the inhabitants ting off a portion of the town of Dedham to the Mr. SIMMONS, of Hanover. The Chairman of the several cities and towns within the Com- town of Walpole has been read, in which it says of the Committee on Elections, (Mr. Abbott, of monwealth now entitled any one year to send one that the selectmen of Walpole shall make out a Lowell,) in consequence of sickness in his family, or more representatives to the general court," true list of the qualified voters for representatives is unfortunately absent at this time. I had hoped shall meet, &c. The inhabitants of Walpole in- in the portion thus set off, and deliver the same to that he would be here to defend the report, as he cluded this portion of Dedham. The inhabitants the town of Dedham. The Act under which this is more particularly acquainted with it than my- are spoken of in a body, and not in relation to Convention is assembled provides that in the elecself. First, as to the question asked by the gen- the small portion or large portion that might vote tion of delegates every person who had a right to tleman from Salem, it was understood by the in a particular place. But if we adopt the other vote for representatives in the General Court, Committee, no person appearing, and the question construction, and say that it means only the men should have a right to vote for delegates. Now I not being directly brought before us, that the cit- that may vote in that town for representatives, we suppose these seven gentlemen had a right to vote izens of West Roxbury and of Roxbury all voted disfranchise these individuals set off to the town for a representative somewhere, and also a right together. There were credentials returned, I be- of Walpole. They are not inhabitants of the to vote for a delegate somewhere. The Act calllieve, for a delegate for West Roxbury. But it town of Dedham; and if they cannot vote in ing this Convention provides that the elections was stated that he was elected both in Roxbury Walpole in the election of delegates to this Con- should be held in the same manner, and presided and in West Roxbury, by a sort of understanding, vention, they can vote nowhere. We find also over by the same officers as in the case of represenso that there should be no difficulty, and they in the same section :

tatives in the General Court, and the votes were to should have a representative here. In either “And at such meetings of the inhabitants, be received in the same manner. It cannot be, it view of the case, there can be no vacancy there. every person entitled to vote for representatives seems to me, that it was intended that any one

Mr. LORD. I will ask the gentleman in rela- in the general court, shall have a right to vote in should vote in one place for representatives and tion to the town of Marion, in Plymouth County, the choice of delegates.”

in another for delegates. The Act also provides which is reported as having no representative, and This was a meeting of the inhabitants of the that all orders in force regulating the election of yet is not reported as having failed to elect. Will town of Walpole. Those inhabitants of Walpole representatives should be continued in force and he tell us why that is so ?

who voted, were entitled to vote for representatives applied to the election of delegates to this ConMr. SIMMONS. I do not know that that case in the general court. A portion of them, it is vention. An Act passed on the 30th of April was particularly before the Committee. When- true, were not entitled to vote for representatives preceding, requires these seven gentlemen to vote ever it comes up, we shall be prepared to meet it, in the general court, in the town of Walpole; but, for representative in the town of Dedham. Now, and to settle it, I trust, upon its own merits. in the opinion of the Committee, this was a descrip- I submit to this Convention, whether, under this “Sufficient unto the day is the evil thereof." I tion of the class of persons entitled to vote, and Act, these gentlemen were entitled to vote in the prefer at this time to consider the question with the Act might just as well have read, the inhabi- town of Walpole. They had a right to vote in regard to the town of Walpole, and not to attempt tants qualified to vote in the elections of town Dedham where there was a poll held, and why to explain in relation to every other town which officers, or of governor, or of senators. If any could they not have gone there and voted ? the gentleman from Salem may wish to ask ques- gentleman will take the trouble to look at the It seems to me that the case is a very clear one. tions about.

Revised Statutes, where voters are spoken of, he I have no wish to disfranchise any town. I have

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